Interview with our research coordinator, Jovana Marović, for MINA news agency:
What, in your opinion, are the main flaws of the Montenegrin legislation when it comes to the fight against corruption?
In the European Commission’s opinion general framework for the fight against corruption in Montenegro has been established, but the legislation shows many shortcomings, while this legislation implementation is not efficient. The assessment of the general framework established for the fight against corruption is not entirely correct. It remains unclear why the public-private partnerships are not within the context of negotiations on Chapter 23, and the overall fight against corruption. It is also questionable why the definition of this framework is not in the Government Work plan for 2013 year, and what are the specific results of the previous two years work to creating a common legal framework for PPPs and concessions. The same remark applies to the Law on Concessions harmonization with relevant EU legislation, since the EC’s Montenegro Progress Report for 2012 underlined the need for harmonization. Precisely because of this law shortcomings, the imprecisely set institutional arrangements and overlapping responsibilities, as well as inadequate billing systems in concessions, concessionaires only in 2012 on behalf of arrears owed 12 million euro. In the absence of adequate legal, institutional and supervisory framework for PPPs and concessions, chances for corruption remain high.
When you take into account which legislation EC characterized as a good basis for the subject area regulation, as is the case with the Law on Public Procurement, besides the problem of inadequate actions control, the law is not fully in line with the acquis (eg shopping method regulation), nor has it adequately responded to the need for improving the anti-corruption policies and mechanisms. There is also an absence of institutional mechanism for monitoring and follow- up of defined anti-corruption norms and rules implementation (eg provision which prohibits the employment of persons involved in the procurement process for a two years period for a legal entity – the bidder who has signed a contract on Public Procurement).
It is necessary to change the Criminal Code provisions in part related to the precise definition of the offense of bribery, as well as the criminalization of undue influence on the judiciary.
With the need to eliminate the shortcomings of the anti-corruption legal framework, only the continuous implementation of regulations with adequate implementation control, can make fight against corruption more effective.
Do you think that, in order to effectively fight against corruption should start the procedure for the Law on the origin of the assets adoption, and opening of collaborators of the secret services files?
Initiative for adopting the Law on the origin of the assets exists in the region (for example, in Serbia currently are in the focus current activities concerning law preparation). The arguments most often heard in the direction of its approval are based on the need to fight against the so-called “Lateral corruption”, that would measure unjust enrichment of public official’s relatives, and that this law would be a significant contribution to the overall fight against corruption. However, regardless of some results that might come from the Law on origin of the property implementation, the experience of countries where this law was in effect are not positive. Thus, for example, in the Slovak Law on sources of assets 2005, concerning those who can’t prove the property origin, was in effect only for a month. The Act provisions had launched a huge number of cases and requests for verification of assets, which almost paralyzed the system.
What, in your opinion, should be the punishment for corruption when it comes to public officials?
Effective penalization for abuse of office by public officials can be achieved by the Article 45 of the Law on Offences implementation which specifies that “the offender shall not engage in occupation, activity or duty performed on a competent authority’s subscription or permission basis.”
The report on the screening of legislative alignment in Chapter 23 (Judiciary and Fundamental Rights), the EC stresses that the Law on conflict of interest does not define adequate disclosure of public officials assets because it doesn’t check the content of applications in order to identify cases of illicit enrichment, and the criminal penalties provided in this Act are not sufficiently preventive. Therefore, in the direction of better criminal law regulation, provisions should specify the maximum penalties that exist in the European Union.
Do you think that the law should provide that acts of corruption and organized crime never expire?
The provisions prescribing that acts of corruption and organized crime are not becoming obsolete are necessary to incorporate at the Montenegrin legal framework. This would be good way to monitor practices in the region (Croatia, for example, in 2010 with Constitutional amendments resolved this issue). Offences of corruption and organized crime are difficult to prove, the provisions prescribing this offences never to expire, would be a positive step in their clarification.
Should the law regulate the seizure of illegally acquired property to apply retroactively?
The principle of retroactivity is not legal. The laws apply from the moment of coming into force. Retroactivity may affect the (in) security of the legal system and uncertainty among citizens.