ACA opinion on the Draft National Anti-Corruption Strategy
for the 2013 – 2018 time period
The Anti-Corruption Agency welcomes the adoption of the new National Anti-Corruption Strategy. Over the past few years there has been a vital need for a new strategic document in this area, considering the fact that the 2005 Strategy ceased to produce any real results. In spite of the fact that it is for the most part still in effect, the concept of the remaining recommendations is such that it would probably not bring about any significant progress in the fight against corruption.
Therefore, the ACA recommended revising the Strategy and Action Plan in the Agency’s first report (published in 2011) on the implementation of this document. This was done in view of the fact that five years of being in effect seemed like a reasonable time period for these documents to undergo an adjustment to the changing circumstances in many areas.
Areas of the Strategy
The Strategy, adopted by the Government of the Republic of Serbia on June 20, following a three-month public consultation, and currently undergoing a parliamentary procedure, includes some important novelties. Important anti-corruption objectives are projected for each of the ten areas regulated by the Strategy; therefore, among other things, its implementation should bring about:
1) broadening and specification of competences; development of capacities of the ACA and other independent bodies with anti-corruption powers; 2) establishment of corruption risk analyses during legislation drafting; 3) introducing the obligation for the National Assembly to monitor the implementation of conclusions and recommendations it passed based on independent public authorities’ reports; 4) establishing an efficient and effective whistleblower protection system; 5) adopting a law on lobbying; 6) advancing public involvement in legislative procedures and monitoring budget spending; 7) defining clear and objective criteria for the proposal, election, dismissal and performance evaluation of heads of public enterprises; 8) developing the e-Taxes system and establishing a framework for implementing tax identification numbers for natural and legal persons; 9) establishing records of competent authorities’ action on irregularities in public procurement procedures identified in the reports of overseeing and regulatory bodies; 10) developing a system for prevention, disclosure, reporting and action on irregularities related to spending funds obtained from the European Union and other international institutions and organizations; 11) eliminating corruption risks in legislation regulating the process and oversight of privatization, reorganization and insolvency proceedings of state and publicly funded companies, in the area of public-private partnerships and concessions; 12) establishing full independence, i.e., autonomy and transparency of the judiciary in terms of budgetary powers; 13) establishing proactive procedures dealing with disclosure and prosecution for the criminal offense of corruption; 14) improving substantive criminal legislation in this area and its harmonization with international standards; 15) establishing unified records for criminal offenses in the area of corruption; 16) strengthening police capacities for corruption investigation and strengthening internal oversight mechanisms aimed at combating corruption within the police sector; 17) reducing the number of procedures and introducing a “one-counter system” for issuing building and other licenses and approvals related to construction and urban planning; 18) ensuring there are transparent criteria and public participation in the process of land-use and urban planning at all levels of authority; 19) establishing a transparent information system in the health care and citizen participation in the oversight of health care institutions; 20) changing the legal framework regulating the selection, position and authorizations of primary and secondary school principals and faculty deans, in addition to adopting regulations dealing with educational inspection; 21) ensuring transparency of admission, examination, assessment and knowledge evaluation processes in all school institutions; 22) ensuring transparency in the financing of sports and sports club and association ownership; 23) ensuring transparency in media ownership, financing and editing policies.
The attainment of these objectives should eliminate many of the other deficiencies in the legal and institutional framework and practice of public authorities, among them a considerable number of those that have been mentioned for some time in all reports on Serbia’s progress regarding the European integration process.
Nonetheless, one of the most important suggestions put forward by the ACA, as one of the participants in the process of strategy drafting, was not adopted. The recommendation in question was that mechanisms for strengthening the system’s resistance to corruption need to be introduced in the entire public sector. Namely, various analyses and the integrity plan development process coordinated by the ACA have shown that the Serbian public sector is not sufficiently resistant to corruption, and typical risks occur in that sense throughout the sector and all its processes, regardless of the department in question. The risks amount to unnecessary procedures, unlimited discretionary powers, and lack of transparency, oversight, and accountability in the work of public authorities. Such risks turn the system into an environment vulnerable to corruption, even suitable for its emergence and development. Therefore, it is not enough to undertake measures which are merely suppressive, but it is also important to identify causes and eliminate them.
The system’s vulnerability to corruption might be overcome by having the new Strategy establish an obligation to conduct appropriate analyses in order to identify risks and provide recommendations for their elimination by way of sector-specific plans and public policies. These obligations would be established for every part of the public sector, not just the ones most frequently identified as high-risk areas. This is why the new strategic document has paid special attention to these areas.
Incorporating measures dealing with the elimination of redundant procedures, limitation of discretionary powers, assurance of transparency, oversight, and accountability in public authority work and their day-to-day application, would provide a systemic approach to the resolution of the main causes of corruption, cover all public authorities in a comprehensive manner, and help with their active involvement in the fight against corruption, providing them with the foundation for autonomous internal reforms. It would also enable the participation of all interested institutions in the necessary normative and other reform-related processes, the building of public sector capacities so that these processes can be finalized properly, building capacities for the strengthening of the system’s resistance to corruption throughout the public sector (and indirectly, the areas of the private and civil sectors that come into contact with public resources and public powers), and not just public authority capacities at the highest level, as well as the application of these principles to a large part of the processes within the public sector, and a considerable share of those within the private and civil sectors.
Finally, a frequent objection to the current 2005 Strategy, which encompassed seven different systems, was that some areas often denounced for carrying risks (e.g., health care) had not received special treatment. The introduction of segments dealing with this issue into the new strategy would successfully solve the abovementioned deficiency of the current strategy and provide a comprehensive treatment of the public sector in the new document.
Strategy implementation oversight
Aside from innovations in terms of content, a significant step forward was made by the new Strategy by creating the foundation for a sort of accountability system, regarding failure to comply with the obligations specified in the strategic documents, unlike the still current 2005 Strategy. Thus it specifies that the National Assembly shall devote a session to deliberation of the ACA’s report on the implementation of the Strategy; that it shall conduct a public consultation on the re-examination of the activities of the parties required to implement the Action Plan; and that the Government shall submit a report to the National Assembly within six months on the implementation of the conclusions passed by the National Assembly upon deliberation on the ACA’s report. Moreover, the ACA will have broader powers regarding checks on compliance with obligations; aside from collecting biannual and annual reports of the reporting parties, it shall have the right to collect evidence in line with activity indicators presented in the Action Plan, and to call for reporting parties to provide further explanations, in case there are any doubts concerning compliance with parties’ obligations. It will also have the option of giving its opinion on the failure to comply with obligations to public authorities; such public authorities shall be required to discuss the issue within 60 days, and report to the ACA and the public on the conclusions reached. The opinion shall also be presented to public authorities that have selected and appointed the head of the reporting institution concerned by the opinion.
On the other hand, the Strategy confers certain powers related to implementation monitoring to the Anti-Corruption Council, prescribing that it shall monitor the results of the implementation of the Strategy and Action Plan in state authorities required to implement the Action Plan, by collecting information on the experience of implementing the Strategy and Action Plan, and on the obstacles faced during the process. This shall be done at quarterly meetings organized by the ministry competent for judicial affairs, with the purpose of coordinating Strategy implementation. The Council shall submit a report on this to the Government. For this reason, the segment of the strategic document dealing with implementation oversight leaves several issues to be addressed:
The relation between the reports of the Council and those of the ACA; whether the Council shall take into account the ACA’s reports and vice versa, and the possible consequences in case the reports differ in conclusions.
The strategy does not stress the fact – though it must be taken into consideration – that the Council, as a Government body, only has jurisdiction over some of the parties required to implement the Strategy and Action plan; therefore, its reports will be limited only to state administration. On the other hand, the text does not clarify the formulation according to which the Council shall monitor Strategy and Action Plan results in “state authorities”.
The “verbal account” of the report delivered by a state authority before the ACA is referred to by the Strategy as a meeting, where the public is allowed to be present; however, this measure would definitely prove more efficient should it be organized as a public hearing, with the requirement to convene interested parties within the area in question.
The Strategy prescribes that the ACA shall draw up an opinion containing an assessment of the implementation of activities and recommendations for overcoming difficulties only in “exceptional cases”. Besides the fact that this formulation leaves it to the ACA to decide which cases are exceptional, it is not clear why an opinion on Strategy implementation should be given exclusively in such cases, nor what type of cases these would be.
Finally, although credit must be given to the announcement that mandatory elements of the report on Strategy implementation shall be prescribed, the clarification as to the specific act which would do so was omitted. Also, the reasons are not clear for eliminating the part of the prior version of the Strategy dealing with the organization of an annual conference, where Strategy and Action Plan implementation would be discussed; the conference could also provide an important improvement measure for implementing the strategic document.
The new Strategy was developed through a broad consultative process, which involved both domestic and international experts, as well as representatives of foreign and international organizations; its latest version passed through a three-month public consultation. Nevertheless, real insight into the quality of the new strategic document will be possible only after the beginning of its implementation, which cannot take place before the adoption of the accompanying action plan, currently undergoing a public consultation process; its adoption is expected within three months after the adoption of the Strategy. In order for the Strategy and Action Plan to be implemented successfully, it is important to incorporate into the text a recommendation that it is important to undertake periodical analyses and possibly modify both documents, so as to adjust them to current societal circumstances. A real opportunity for such analyses and modification initiatives should be provided by all the measures projected with the purpose of overseeing the Strategy, above all the quarterly coordination meetings, as well as the recommendations from the reports of the Anti-Corruption Agency and the Anti-Corruption Council.
ACA opinion on the Draft Action Plan for the implementation of the National Anti-Corruption Strategy for the 2013 – 2018 time period
Bearing in mind the lessons learned during the three-year experience of monitoring the implementation of the previous Anti-Corruption Strategy and accompanying Action Plan, the Anti-Corruption Agency submitted to the Ministry of Justice and Public Administration its opinion on the working version of the Action plan for the implementation of the National Anti-Corruption Strategy for the 2013 to 2018 time period. The opinion places special emphasis on the following general recommendations:
The Action Plan needs precise formulations. – During the process of monitoring the implementation of the old Strategy and Action Plan, one of the challenges the ACA had to face was the fact that some Strategy recommendations and, more often, Action Plan activities, seemed incomplete, that is to say, it was not entirely clear which tasks were required of the responsible parties. In the absence of a reliable interpretation, this situation not only made monitoring more difficult for the ACA, but also complicated the implementation of certain measures for the responsible parties. Therefore, both institutions were left to interpret the content and purpose of the recommendations and activities on their own, in line with the presumed aim the authors of the Strategy and Action Plan might have had in mind.
This is why the ACA recommended that all formulations, even at the cost of considerably expanding the text, be made more precise, so as to, first and foremost, make it completely clear to the responsible parties which measures ought to be taken, and to the ACA, and any other institution undertaking such activities, which measures ought to be monitored.
Aside from adding more precise formulations, it is also essential to make the partition of activities more precise. This is especially necessary in situations where two activities of different types have nonetheless been grouped together, but may prove extremely useful with certain types of measures, such as, for instance, those dealing with training in different areas. Namely, the very formulation of training in certain areas does not mean much either to the responsible party, in terms of guidelines on the quantity and type of training courses and the number of people that should be involved, or to the ACA, which is supposed to assess whether the activity was carried out or not. For this reason, it is recommended to initiate all activities with formulating an adequate plan and program of the training, based on analysis of needs, if possible. As a result of this, it will be easier later on to carry out the training, but also to monitor its implementation, by monitoring the implementation of the plan.
Only one public authority should be the responsible party. – Only one public authority should be designated as the party responsible for implementing or at least initiating an activity contained in the Action Plan, whereas authorities whose participation in the activity in question is merely beneficial should be indicated within comments on the activity. In the case where several public authorities are indicated as responsible parties, without it being clear which authority is in charge of which portion of activities, it remains unclear which authority is to be held accountable should there be a failure in carrying out the activity within the set time frame. Consequently, the activities designed as joint projects should not assume there is or will be perfect coordination between the mentioned public authorities which would lead to the realization of the activities; rather, it must be precisely determined which public authority shall initiate the entire process and be responsible for that particular segment.
Other general recommendations. – Another one of the ACA’s recommendations refers to enabling qualitative monitoring of measure realization through the introduction of new obligations in the procedure of drawing up explanations of draft laws and other regulations. Namely, a lot of Action Plan measures require the passing of new regulations or amendments of existing regulations. The direction this should take is determined either by the Action Plan itself within the measure, activity or comment, or by the recommendations of a needs analysis, also envisioned by the Action Plan. Although the ACA’s oversight of the Action Plan implementation includes only activity indicators, which are not part of the content of draft regulations, but only markers of compliance with activities, the qualitative monitoring of measure realization could benefit from the introduction of the obligation for regulation proposers to refer in their explanations to the recommendations for new solutions contained in the Action Plan or in the needs analysis required by the Action plan. They ought to show in what manner the changes were introduced; if they were not, an explanation ought to be included adducing the reasons for this. Thus the responsible parties would be required to give their opinion on the adoption and an explanation for not adopting the Action Plan recommendations or the recommendations of needs analyses. This would enable the ACA to come to far-reaching conclusions on Strategy implementation, without worries that its capacities are unable to cover all the areas where the passage of new regulations and amendments to existing ones were envisioned by the Action Plan. On the other hand, when presenting the reasons for passing a law, it is entirely natural to include in the explanation of the draft the recommendations given by strategic documents in a particular area, and an overview of whether or not these were introduced in the legislation, and why. This would also facilitate the oversight of experts in terms of the content of new solutions in different regulations. In order to introduce this obligation it would be desirable to amend the Unified Methodological Rules on Legislation Amendment.
All of the abovementioned recommendations are really aimed at additional regulation of public authority action, i.e., at building a system which requires precisely defined tasks from specific institutions; these tasks ought to be planned and realized in such a manner as to follow the recommendations contained in strategic documents or corresponding analyses, and include a mandatory explanation in case some of these recommendations are not adopted.
Among specific recommendations for improvement of the text, the ACA recommended, among other things, the introduction of an electronic system for assets and income declarations, which would be in line with the general tendency of introducing electronic administration in public authorities, in addition to considerably facilitating the collection and archiving of these declarations, along with their oversight; eliminating the provision specifying that the ACA not act on anonymous complaints, these being a frequent and valuable source of information on corruption; and establishing a network of educators in the fields of anti-corruption, ethics and integrity, which would involve calls for applications, organizing training, granting licenses and compiling a list of the ACA’s licensed educators, as well as developing a system of online training which would encompass online educational material and films, along with the development of appropriate software. Namely, in view of the fact that the Action Plan envisions programming, planning and implementation of training in the areas of anti-corruption, ethics and integrity for a considerable number of public officials and employees of the public sector – an undertaking that will require lecturers and materials – establishing an educators’ network would increase the number of potential lecturers in this area, while the introduction of the online training system would enable a more efficient way of organizing education for as much attendants as possible.
Aside from the abovementioned suggestions, the ACA recommended an overall adjustment of the Action Plan text and, above all, mutual alignment of all deadlines for activity realization, as one of the crucial guarantees for a coordinated, successful implementation of strategic documents.
GUIDELINES FOR REPORTING ON STRATEGY AND ACTION PLAN IMPLEMENTATION AND IMPLEMENTATION OVERSIGHT
At a session held on July 1, 2013, the National Assembly of the Republic of Serbia adopted the new National Anti-Corruption Strategy for the 2013-2018 time period (Official Gazette of RS, no. 57/13) – hereinafter: the Strategy. At a session held on August 25, 2013, the Government of the Republic of Serbia adopted the Action Plan for the implementation of the National Anti-Corruption Strategy for the 2013-2018 time period (Official Gazette of RS, no. 79/13) – hereinafter: the Action Plan.
The Action Plan specifies measures, activities, time frames, responsible parties and resources necessary for attaining the objectives set by the Strategy. Moreover, indicators for activity monitoring were also suggested, as well as additional qualitative instructions to responsible parties, with the purpose of guiding them through the projected activities.
The Action Plan entered into force on the day of its publication, September 6, 2013; deadlines are applicable starting from this date.
Pursuant to Article 5, first paragraph, of the Law on the Anti-Corruption Agency (Official Gazette of RS, no. 97/08, 53/10, 66/11-US and 67/13-US), the Anti-Corruption Agency (hereinafter: the ACA) is responsible for the oversight of the implementation of the National Anti-Corruption Strategy and Action Plan for implementing the National Anti-Corruption Strategy.
Reporting of responsible parties
In order to ensure that the reporting process is as efficient and effective as possible, responsible parties shall designate a person within the institution who will be in charge of regular communication with the ACA regarding this subject; the person’s contact information (telephone and email) shall be given to the ACA. This person shall be responsible for monitoring the implementation of the requirements set out in the Action Plan within the institution, of writing and submitting reports to the ACA, attending meetings organized by the ACA related to compliance with Action Plan requirements, and maintaining regular communication with the ACA regarding this subject.
All responsible parties specified by the Strategy and Action Plan are required to submit quarterly reports on the implementation of these documents to the ACA, in accordance with Article 62, paragraph 2 of the Law on the Anti-Corruption Agency.
Quarterly reports shall be submitted in print and electronic versions in the following order:
First quarterly report (for the period January 1 to March 31) – to be submitted by April 15;
Second quarterly report (for the period April 1 to June 30) – to be submitted by July 15;
Third quarterly report (for the period July 1 to September 30) – to be submitted by October 15;
Fourth quarterly report (for the period October 1 to December 31) – to be submitted by January 15;
Each quarterly report shall contain the following information:
1. Statement on the realization of Action Plan activities, written in the following form:
Activity (- indicate the exact formulation of Action Plan activity -) was carried out in the manner and within the time frame set by the Action Plan.
Or: Activity (- indicate the exact formulation of Action Plan activity -) was not carried out in the manner and within the time frame set by the Action Plan.
Or: Activity (- indicate the exact formulation of Action Plan activity -) was not carried out, due to the fact that the deadline for its realization has not yet passed.
Or: The realization of the activity (- indicate the exact formulation of Action Plan activity -) is still in the process of being completed.
2. Short description (no more than 500 words) of the measures undertaken in the course of activity realization.
The description should encompass all the relevant measures undertaken with the aim of completing the activity, e.g., passing a decision on forming a working group for the drafting of a new regulation, hiring an expert to offer advice during the process, conducting comparative legal analyses, number of meetings held by the working group, and so on.
If the activity involves adopting a new or amending an existing law or bylaw, this part should contain the innovations introduced by the new regulation or its amendments, as well as a clarification on the manner in which these innovations should contribute to the realization of the measure in question.
3. Evidence of the accomplished activity, in accordance with indicators and the comment accompanying the Action Plan activity.
The enclosed evidence may be as follows: decision on forming a working group for amendments to the law, report on conducted analyses, program, list of participants, report on the evaluation of training, and so on.
All evidence that may be submitted electronically shall be submitted in this manner, e.g., scanned decisions, reports and analyses; if these are required to be published on the Internet, links to their webpages shall be submitted. Furthermore, if an activity includes the adoption of new legislation or amendments to current legislation, it is not necessary to submit the entire text of new provisions in print; it suffices to indicate in which issue of the Official Gazette it was published, or the internet address where it can be found.
4. Short explanation in case the activity was not completed or was not completed in the manner or within the time frame set by the Action Plan.
The explanation may adduce, for example, lack of resources needed for activity realization, a working group’s inability to come to an agreement regarding the final version of a regulation, delay in activity realization caused by other parties, etc. It is recommended that this explanation be accompanied by appropriate proof, if any.
5. Suggestions for further action (optional), i.e., to amend a particular segment of the Action Plan, e.g., extending a deadline, changing the responsible party, increasing necessary resources, introducing additional comments, and so on. Each suggestion shouldo be accompanied by an appropriate explanation.
The quarterly report shall contain all the abovementioned elements for each of the activities required of the responsible parties.
Aside from these elements, the fourth quarterly report shall contain an annual cross-section, i.e., a list of all the activities which were or were not completed during the year.
As the Action Plan came into force on September 6, 2013, and has since been being implemented, the first report on Strategy and Action Plan implementation that responsible parties need to submit to the Agency is the fourth quarterly report, which shall encompass the period from the start of the Action Plan implementation to December 31.
After the due dates for report submission for a particular quarterly period, the ACA will publish on its website the list of responsible parties that submitted their reports respecting the deadline, and of those who failed to do so. For the first three quarters, it will also present a short overview of activities completed in the last quarterly period; this report shall be published on its webpage.
The information contained in the fourth quarterly report will be used for the annual report on Strategy and Action Plan implementation. This report will be submitted to the National Assembly within the annual report on the work of the ACA, before March 31 of the current year for the previous year, in conformity with Article 26, paragraph 2 of the Law on the Anti-Corruption Agency.
Aside from analyzing quarterly reports for the current year, the ACA also collects information on Strategy and Action Plan implementation using the following methods:
1. Collecting relevant reports, research and analyses;
2. Organizing meetings with representatives of responsible parties and/or relevant interested parties on the subject of particular activity realization, if necessary; and
3. Organizing gatherings on the subject of particular Action Plan activity realization, if necessary.
The annual report on Strategy and Action Plan implementation is comprised of systematized and processed data collected from quarterly reports, and using other methods as stated above. The report shall be comprised of the following elements:
Overview of Action Plan activities which were completed and of those that were not completed;
Problems encountered during the realization of Action Plan activities; and
Suggestions for overcoming these problems and for further action on the part of the responsible parties.
Pursuant to Article 5, seventh paragraph of the Law on the Anti-Corruption Agency, the ACA gives opinions regarding Strategy and Action Plan implementation. In accordance with this provision, in cases where Action Plan requirements were not complied with in the manner and within the time frame set by this document, the ACA shall draw up specific opinions on Strategy and Action Plan implementation, submit them to corresponding responsible parties, and make them accessible to the public.