The Administrative Court: The Agency’s Decision on Jelić’s conflict of interest was not legal

The Administrative Court’s Decision states that the Agency for Prevention of Corruption’s (APC) Decision lacks rationale of the statement that the ‘’expert services’’ provided by the public official Zoran Jelić, the senator of the State Audit Institution, to the Prva bank of Montenegro can be linked to scientific, educational, artistic and sports activities.

We consider that this Court’s Decision sets the standard for the future Agency’s proceedings in identifying conflict of interest. The Agency, when deciding on the (non)existence of the conflict of interest, often uses these particular legally allowed activities as a cover up for public officials which are violating the law.

It has been one year and nine months since we have issued a lawsuit against the Agency’s Decision to the Court. Only now has the Administrative Court decided and uphold our lawsuit to annul the Decision of the Agency for the Prevention of Corruption  by which it found that Zoran Jelić, a Senator of the State Audit Institution (SAI), is not in conflict of interest for his engagement in the Prva Bank of Montenegro. Throughout this engagement as a member of the Audit Committee of Prva Bank, during more than nine months, Jelić  earned close to 6.000 euro.

In the lawsuit, we found disputable that the Agency explicitly claimed that Jelić’s engagement with Prva Bank  is a matter of “scientific, educational, artistic and sports” activities under Article 9 of the Law on the Prevention of Corruption, and that a public official has the right to perform these activities, acquire income based on it and declare it accordingly.

However, in the, now already annulled Decision, the Agency did not state clearly whether the activity which Zoran Jelić performs in Prva Banka falls under “scientific”, “educational”, “artistic”, “sports” or “cultural” activity .

The Court recognised our arguments and determined all this in the Decision U. No. 3141/18, from 23 of January 2020, returning the case to the Agency for reconsideration and obliging it to issue a new, lawful Decision.

According to the Register of Activities (6419 – other monetary intermediation) and provisions of a number of regulations defining the content of these activities, it is clear that Prva Bank does not perform scientific, sports, artistic or cultural activity. Also, clear provisions of the Law on Banks regarding competences of Audit Committees indicate that neither the Audit Board’s competences fall in the scope of the said activities.

Therefore, we believe that it will be difficult for the Agency to explain in the Decision how these two can be linked, and we expect it to waive such illogical reasoning. Otherwise, we will be forced to continue to question it before all the available court instances.

We remind why this case is important – by approving such engagements to public officials and by encouraging such illegal practices, the Agency sends an open call to other members of the SAI Senate, as well as to other public officials, to engage in such engagements. This does not only undermine clear provisions of the Law on Prevention of Corruption, but also broader societal goals of adopting and implementing the law, anti-corruption policies and integrity policies.

It should be emphasised that the function of a member of the Senate of the State Audit Institution, unlike many other public functions, is particularly protected and privileged as it is a lifelong function with compensation in the pay grade of a Constitutional Court judge. In this sense, the legislator places a member of the SAI Senate among the highest state officials.

Additionally, the State Audit Institution is a constitutional institution that audits all other institutions and bodies and is therefore obliged to show the same or even higher level of integrity in its work and behaviour than other bodies and institution.

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