Large number of preconditions for full functionality of the Agency was not fulfilled in time, and certain problems in its establishing, to which Institute Alternative (IA) has been pointing during last and early this year, have not been solved even five months after the Agency began to work. We presented first five months of its work based on administrative – technical capacities, human resources, transparency and efficiency of the Agency.
Administrative – technical capacities and human resources
Spatial capacities of the Agency were provided only on February 1, while the software for exchanging data of state authorities (Ministry of Interior, Customs Administration, Commission for Securities, Real Estate Administration and Taxes Administration) was not functional before March. For Agency’s budget for the first year of its work a legal minimum was proposed and allocated – 0.2 per cent of the current budget of Montenegro for 2016. Also, the budget was adopted before the Rulebook on Internal Organisation and Systematisation, so the number of employees was determined based on the allocated budget, instead vice versa.
Only 40 out of 55 systematised work places were filled so far. So, even five months after it began to work, the Agency does not have all the capacities that itself estimate necessary for conducting all its competencies. The Agency began to work with 32 employees, taken over from the Commission for Prevention of Conflict of Interest and the Directorate for Anti-corruption Initiative, so the dynamics of filling work positions is slow compared to the scope of Agency’s work – during these five months the Agency employed 17 servants – especially bearing in mind that this is an electoral year, and that the Agency has a wide scope of competencies in controlling political parties and election campaigns.
Therefore, as we have previously warned, full functionality of the Agency should have been provided until January 1 – full administrative – technical and human capacities, so it could have immediately started with the realization of its actual tasks.
The transparency of Agency’s work is specifically problematic, and the Amendments to the Rules of Procedure of the Council of the Agency adopted last week represent a step backwards compared to the previous practice.
I would like to remind that the sessions of the Council were, in accordance with the Rules of Procedure, open for representatives of NGOs and media until January 1 2016, when this good practice was suddenly terminated. The rationale for this was the “opinion of the Council” that representatives of NGOs by monitoring sessions do not contribute to the efficiency of this body’s work. Also, the Council considered that NGO representatives can only take part in sessions, with prior submission of the request and the topic they wanted to discuss within the session to the members of the Council, in a written form, based on which the Council shall decide upon the request, even though the Rules of Procedure prescribed that NGO representatives, based on the Council’s decision, can attend and take part in the session. However, even this “Council’s opinion” was not consistently applied in all cases, so for some sessions NGO representatives were allowed access.
Regarding the closing session for media representatives the explanation was that the Rulebook on Media Accreditation has not been yet adopted, and that sessions will be open when the Council adopts the Rulebook, which in the past five months did not happen.
Both issues were “resolved” last week by adopting Amendments to the Rules of Procedure of the Council. Amendments envisioned deleting the word “attend” in part that refers to NGO representatives, and the above mentioned “Council’s opinion” was incorporated into the Rules of Procedure, which made the Council’s session definitely closed for NGO representatives’ monitoring. The adopted Amendments allow media representatives to attend sessions based on the principle earlier applied to NGOs – individual submission of requests for each session and Council deciding upon the requests.
I believe that this is not a good way to solve the transparency issue and that the Council should have adopted, as originally planned, the Rulebook on Media Accreditation, which would prescribe the same conditions for accreditation of representatives of all media. Chosen solution leaves large space for discretion of the Council’s members on which media representatives will be allowed to cover the sessions.
During last five months, the only means for informing general public on the Agency’s work were press releases published on the Agency’s internet presentation, which contains only technical and selective information on what was discussed or adopted within the session, for fulfilling which legal obligation the deadline is expiring or has expired. Having in mind the sensitivity of the pervasive problem that the Agency needs to combat – corruption, this level of transparency is not good enough. Therefore, the Agency has to work more on improving the transparency of its work and informing citizens on results in preventing corruption.
Quarterly Performance Report of the Agency for Prevention of Corruption provides an overview of completed activities from the beginning of its work up to March 31 2016, in accordance with the Agency’s Annual Performance Plan for 2016. Implemented activities from the report are presented according to the indicators defined in the Annual Performance Plan, which are not fully defined in order to show the concrete measurable results of the Agency.
Agency has jurisdiction to conduct control in large number of areas on one side, but weak mechanisms for carrying out the given jurisdiction and prosecution of accountable persons when it finds irregularities, on the other. However, even when it identifies violations of the Law, the Agency often opts for “softer” measures of sanctions, which is evident from its Quarterly Report.
For example, in part of prevention of conflict of private and public interests in performing public functions, the defined indicators are the number of adopted opinions and decisions of the Agency on the existence of a conflict of interest. The result is, according to the Report, 95 opinions and 11 decisions and conclusions, as well as 22 submitted resignations of public officials when given Agency’s opinion that the public official performs incompatible functions, which, thus shown, indicates positive performance of the Agency.
However, it should be recalled that the Law on Prevention of Corruption prescribes misdemeanor liability of a public official for performing incompatible functions and a fine of 500 to 2 000 euro, but also that the Agency has jurisdiction to issue misdemeanor warrant and initiate misdemeanor proceedings for violation of provisions of the laws from its jurisdiction. From the Agency’s Report it is not clear which incompatible functions public officials were performing, for how long, whether the Agency has launched misdemeanor proceedings against officials for which it has found such a violation, whether they will pay a penalty, or a submission of 22 resignation is a measurable result for the Agency.
The Agency needs to be more transparent in this area and to further inform the public about these and similar results of its work, and the information on public officials which have been found violating the Law should be publicly available.
Another area of Agency’s work where there is already space for determining misdemeanor liability, but no visible results is integrity. Regarding Integrity Plans, the Report only reflects how many authorities in the reporting period appointed integrity managers – 358 and adopted and submitted to the Agency Integrity Plan – 303 out of 730, which is fine if we keep in mind that the deadline for compliance of this legal obligation is April 15 and that the reporting period does not include this term. However, even a month after the deadline there is no new, publicly available information on the authorities that have not fulfilled this obligation or which actions the Agency has undertaken on this matter. For authorities which do not adopt until March 31 and submit the Integrity Plan to the Agency until April 15, the Law on Prevention of Corruption stipulates a fine of 1.000 to 10.000 euro, and for the responsible person in the authority from 500 to 2.000 euro. However, there is no available data on which authorities and responsible persons in authorities, if any, will be held accountable for violating these legal provisions.
Reporting incomes and assets of public officials, protection of whistleblowers and misdemeanor liability
In part of control of income and assets, Quarterly Performance Report shows that only 4.638, out of 8.000 reports received until March 31, were registered in the archives of the Agency, i.e. slightly more than a half, and in the reporting period, there is no single report that, according to the Law should be publicly available, was not published on the Agency’s website.
Additionally, the accuracy of data from only 137 reports out of these more than 4 000 was verified, and the Agency determined inaccuracy of data in six of them. Against three public officials the Agency ran misdemeanor proceedings and adopted decisions determining that they have violated the Law, while the cases against three other public officials are still pending.
In the reporting period, there were no cases submitted to the competent prosecutor’s office. In the Department for Preventing Conflict of Interest of Public Officials nine work places were systematised, and only seven filled so far. Compared to the number of public officials and their reports on incomes and assets that shall be controlled, the Agency’s capacities are obviously too weak, according to the statistics from the Quarterly report.
Bearing in mind that the Agency has an obligation to keep records on violations of the laws in its jurisdiction, and towards greater transparency of its work, we consider that it should periodically and thoroughly inform the public about the course and outcome of all these proceedings.
When it comes to whistleblowers protection, according to the Report, the Agency received eight requirements for protection of whistleblowers, but it is still early to evaluate its work in this part of its jurisdiction because all the cases are in an early stage, and especially if we take into account the sensitivity of this issue.
Public Policy Researcher