Capacities to fight corruption and anticorruption policies

2005

In Montenegro the Strategy for the Fight against Organised Crime and Corruption was adopted in July 2005 by the Government. The implementation of this strategy remains of utmost importance, in particular with the view to present serious security issues highlighted by the recent murder of a senior police official who was investigating high-profile organised crime activities.[1]

In Montenegro anti-corruption activities are still far from sufficient. At present, the central institution is the Anti-corruption Initiative Agency, which has no investigative or operational authority. This is one of the reasons for the lack of tangible results over the years, despite the numerous cases of corruption reported by the NGO sector. A joint strategy against corruption and organised crime was adopted by the Government in August 2005. It was developed under the lead of the Ministry of Interior, including input from the relevant ministries, agencies, civil society and international organisations. Under this strategy, the central body responsible for implementation will have investigative and operational powers.[2]

In conclusion, no comprehensive action had been taken yet to investigate financial crime, and Serbia and Montenegro’s commitment to fight corruption has remained largely rhetorical. Comprehensive strategies are still lacking, as well as efficient institutions to implement them.[3]

In Montenegro, the first part of the Programme for Fight against Corruption and Organised Crime was finalised by the Ministry of Interior.  A final draft should be approved by the Government in the early months of 2005.  It should be followed by the drafting of a related Action Plan. The National Anti-Corruption Commission has still not been created; its legal basis, inter-disciplinary composition, competence and role are being debated.[4]

In Montenegro, the Programme for Fight against Corruption and Organised Crime has not yet been adopted, pending its harmonisation with the new legislation on Police and the National Security Agency. [5]

In Montenegro, the Programme for Combating Organised Crime and Corruption was adopted by the Government on 28 July 2005.  A working group established by the Ministry of the Interior is expected to draft an Anti-corruption Action Plan.[6]

Fight against corruption and organised crime represents one of the greatest challenges of European countries and in particular of transition countries. In the past months, a number of positive developments need to be underlined.[7]

In Montenegro, the drafting of an Action Plan on anti-corruption and organised crime, following the adoption of the relevant Strategy is ongoing.[8]

While the structures for a fight against corruption are basically there, they do not yet bite.[9]

2006

For the successful implementation of the SAA, Montenegro needs to upgrade its administrative capacity in the areas covered by the agreement. Particular attention should be paid to enhancing administrative capacity and law enforcement in the area of justice and home affairs, in particular concerning the fight against corruption and organised crime, as well as the protection of personal data.[10]

Some progress can be reported regarding Government activities to enhance the fight against corruption. An Action Plan to implement the Strategy against Corruption and Organised Crime of July 2005 was adopted by the Government in August 2006. According to the plan, the specialised prosecutor for the fight against organised crime will also be responsible for prosecuting and investigating corruption cases. A specialised unit will be set up in the Police (Ministry of Interior). A commission will monitor the implementation of the action plan, which was developed in close coordination with the Council of Europe and with involvement of NGOs. Key measures are derived from the most important international documents, including GRECO (Group of States against Corruption), the PACO Impact project of the Council of Europe, as well as the European Partnership priorities. The Action Plan should be implemented by intensifying operational cooperation among all relevant institutions and with NGOs. The Directorate for the Anti-corruption Initiative has a strategic role and is the central government body in charge of prevention and coordination of anti-corruption activities.

Authorities have started to report on corruption cases. In the last annual report of the Chief State Prosecutor there are data about key categories of corruption cases (including passive and active bribery, abuse of office and embezzlement).[11]

Overall, in spite of some progress in particular in the area of the adoption of strategic and planning documents and in investigation of corruption cases, the situation concerning the fight against corruption calls for urgent action in order to achieve results on the ground. Furthermore, all bodies involved in the fight against corruption need to have sufficient resources and properly trained staff. [12]

At the time of the visit, the Government of the Republic of Montenegro was preparing a “Programme for the Fight against Corruption and Organised Crime” and planning to incorporate it into the set of measures and activities aimed at curbing organised crime and corruption in the country. The afore-mentioned Programme is to be followed by an Action Plan including specific implementation measures.[13]

No special training is provided to police officers on corruption matters.[14]

Within the Public Prosecution Service, there is no special department dealing with corruption offences. A Specialised Department for Combating Organised Crime has been established.[15]

In Montenegro, there is no prosecutor’s office specialised in dealing with corruption offences.[16]

The need for specialisation of prosecutors dealing with serious corruption offences and economic and financial offences that could be related to corruption was highlighted by the GET’s interlocutors. Carrying out investigations, especially in corruption cases occurring in sectors such as privatisation or public procurement, requires special expertise and knowledge that cannot be gained by prosecutors who deal with all types of criminal cases.[17]

Therefore, the GET recommends to create a special unit within the Public Prosecution Service to deal with corruption (including corruption-related economic crime offences) and to provide it with the necessary human resources, technical equipment and training.[18]

The GET was informed that, in practice, there is a certain feeling of frustration within the police and among prosecutors about the lack of cooperation between the two institutions.[19] In the GET’s view, this situation constitutes a hindrance to an efficient fight against criminality, including corruption, and needs therefore to be addressed.[20]

Therefore, the GET recommends to set up a comprehensive training programme for police officers (especially for the Unit for Economic Crime) and prosecutors, more directly involved in corruption cases, in order to share common knowledge and understanding on how to deal with corruption and financial crimes related to corruption.[21]

Consequently, the GET recommends to extend the application of the provisions on the use of special investigative techniques (in particular Article 238 of the Criminal Procedure Code) to include all corruption offences and to provide the competent agencies with appropriate means and training in order to make the system of special investigative techniques work efficiently in practice.[22]

At the time of the on-site visit, the Ministry of the Interior, in its capacity as co-ordinator, had developed and submitted for approval to the Government the Programme for Combating Corruption and Organised Crime. The focus of the Programme is the establishment of an efficient institutional and legal framework for fighting the above crimes, and more particularly the prevention of corruption, criminal prosecution as well as education and raising awareness of the public.[23]

The main priorities in the fight against corruption indicated in the Programme are: prevention, prosecution (repression), public education and ensuring support from the public.[24]

Subsequently, the GET recommends i) that the Programme for Combating Corruption and Organised Crime and its Action Plan be formally adopted; ii) to provide for efficient monitoring of the implementation of the anti-corruption programme through a specialized independent anti-corruption body with sufficient resources; iii) to involve local self- governing institutions in the process of elaboration and monitoring of implementation of anti-corruption policies at local level.[25]

2007

Particular attention should be paid to enhancing administrative capacity and law enforcement in the area of justice and home affairs, in particular concerning the fight against corruption and organised crime, as well as the protection of personal data.[26]

The government has taken some further steps to fight corruption. A national commission was established in February 2007 to monitor implementation of the action plan for the strategy for the fight against corruption and organised crime. This commission is headed by the Deputy Prime Minister for European integration and includes government officials and one representative of civil society. The constituent session was held in March and the first report was adopted in July 2007.[27]

Little has been done to implement the action plan on the strategy to fight corruption and organised crime. There are concerns about the independence of the national commission.[28]

Police resources within the economic crime division are limited, as are experience and results in dealing with corruption. The capacity of the authorities effectively to monitor, prosecute and try corruption cases remains limited. The number of persons convicted therefore remains low. [29]

Although precise statistics about the depth and extent of corruption in the various institutions are difficult to obtain and lack accuracy, the considerable number of cases that are being reported by citizens through the appropriate channels (2 new offices were opened for this purpose in 2005), give alarming indications,  as confirmed by the latest GRECO report. These factors have prompted the government to set up a very high-level “anti-corruption commission” (chaired by the Deputy Prime Minister/Minister for European Integration) tasked to monitor the implementation of the strategy and action plan against corruption adopted last year, by the State bodies and institutions.  The commission has only recently begun to function, by providing an inventory of the measures taken essentially in the area of capacity-building and training needs, falling short of tackling the real implementation of the measures required including the 24 recommendations by GRECO. A full commitment was taken by the Prime Minister to integrate the GRECO recommendations in the work of the Commission.[30]

The representatives of all the authorities responsible for anti-corruption activities stressed the need to improve the capacity-building and training of the institutions concerned in order to enhance their preventive capacity with a special mention being made of the need for devising schemes to protect those who report against corruption.[31]

The Deputies encouraged the authorities of Montenegro to consider solutions to improve the efficiency of the structures dedicated to fighting corruption, organised crime and trafficking in human beings.[32]

2008

The main challenge for the Montenegrin authorities will now be to implement the new laws and to transform the Action Plans and National Strategies into concrete and visible results.[33]

The National Commission charged with monitoring and reporting on the implementation of the Action Plan for the fight against corruption and organised crime adopted its second report in March 2008, covering the period September 2006 – December 2007. The report points out that, whereas progress has been made in the legislative field and in the establishing of anti-corruption structures, such as DACI[34], concrete results and efficient criminal prosecution of cases before the courts are still lacking as no significant rulings have so far been handed down. The National Commission has set up a working group in order to improve the Action Plan for 2008 and to target it towards more concrete and visible results. [35]

While the DACI can be very effective, within its current mandate, in promoting standards and good practice which can prevent corruption, it does not have the resources, the mandate or the functional independence to play a serious role in exposing or rooting out corruption. [36]

2005

In May 2005 the Serbian Government submitted to the Parliament a strategy for the fight against corruption, developed with Council of Europe assistance. This strategy needs now to be adopted by the Parliament. In the meantime, problems have emerged with the preparation of the Action Plan for implementation and the establishment of the lead institution, the anticorruption body, whose role and relationship with the existing structures remain to be fully defined. The Anti-Corruption Council, established as a focal point and an advisory body to the Serbian Government in 2001, has finalised several reports on alleged corruption cases, 17 involving high-ranking officials, but the serious allegations raised and documented were not further investigated or properly addressed by the Government.[37]

Some progress has taken place with the development of anti-corruption strategies which now need to be finalised – in Serbia – and effectively implemented.[38]

In Serbia the Government has submitted to the Parliament an anti-corruption strategy. [39]

In conclusion, no comprehensive action had been taken yet to investigate financial crime, and Serbia and Montenegro’s commitment to fight corruption has remained largely rhetorical. Comprehensive strategies are still lacking, as well as efficient institutions to implement them.[40]

In Serbia, the draft National Strategy on Anti-Corruption elaborated with support from the Council of Europe and the OSCE was finalised at the end of December 2004.  Following its presentation in a round-table on 31 January 2005, the National Strategy is expected to be adopted in Parliament in the first half of 2005.  An Action Plan should also be adopted by the end of the year. [41]

In Serbia the draft National Anti-Corruption Strategy was finalised at the end of last year, adopted by the government in mid-May and sent to Parliament for adoption. An action plan should ensure implementation in particular through the setting up of an independent agency. The CoE was broadly consulted on the elaboration of the Strategy. What remains unclear is the future role of the existing Anti-Corruption Council, which has been functioning until now in an advisory capacity to the Prime Minister by monitoring current legislation and by dealing with a number of citizens’ complaints related to corruption. This body has performed a useful advisory function and should probably be maintained in close connection with the future independent “agency”. The work of the Anti-Corruption Council has highlighted the very weak system of prosecution of high profile corruption cases due inter alia to lack of proper co-ordination with the investigative services of the police. To date no sentences have been rendered for high profile cases of corruption.[42]

Republic of Serbia: to undertake adequate measures to fight against corruption and organised crime, namely by adequately implementing the National Anti-Corruption Strategy.[43]

As regards rule of law, in both Republics, fight against organised crime and corruption has been stepped up. The authorities took resolute actions in particular after the murder of a senior police officer dealing with organised crime investigations in Montenegro, as well as accusations of corruption within the judiciary and prosecution in Serbia.[44]

The adoption by the Parliament of the National Anti-Corruption Strategy, already approved by the Government on 26 May 2005, is expected to take place in October 2005.  The adoption of this long-awaited Strategy elaborated with broad CoE assistance should be a priority for the authorities.  An Action Plan – to be adopted by the end of the year – should follow up with detailed measures and ensure its implementation in particular through the setting up of an Anti-Corruption Body. [45]

The Government of Serbia adopted on June 4 2005 the National strategy on the fight against corruption. Preparations are underway for the adoption of the action plan, as well as the law on impartial body in the charge of the implementation of the National strategy.[46]

The draft of the National Anti-Corruption strategy, prepared in co-operation with CoE and OSCE , has been adopted by the Government of the Republic of Serbia in May 2005 and forwarded to the Parliament for the adoption in October 2005. The action plan for implementation of the National Anti-Corruption strategy will be finished by the end of 2005. The Ministry of Justice of the Republic of Serbia is preparing the draft Law on Anti-Corruption Agency.[47]

It should be noted that the Parliament of the Republic of Serbia adopted the Criminal Code on 29 September 2005. It stipulates new crimes, such as commandment responsibility for war crime, genocide, terrorism and corruption, as well as crimes in connection with money laundering, abuse of credit cards, computer crime, etc.[48]

While the structures for a fight against corruption are basically there, they do not yet yield results.[49]

In Serbia, the adoption of the long-awaited National Anti-corruption Strategy – aimed to curb corruption through prevention and adequate educational programmes – on 8 December 2005 – is to be welcomed.  Many interlocutors indicated that the adoption of the Strategy represents a good step in the right direction, which needs to be followed up by concrete implementation and elaboration of Action Programmes, as well as adoption of a Law on Anti-corruption establishing an independent Anti-corruption Agency. These measures have been accompanied in the past years by the adoption of a set of legislation which includes provisions aimed to better enable the fight against corruption, such as the Criminal Code, legislation on conflict of interest, on money-laundering or on free access to information. [50]

Effective implementation of the legislation and Strategy is now crucial. Resolute action from the law enforcement bodies and a better co-ordination between the police and prosecuting authorities is needed. The absence of prosecution in corruption cases, in spite of the information provided to the Public Prosecutor’s Office inter alia by the Anti-Corruption Council, has also been raised.[51]

2006

The national strategy for fighting against corruption was adopted in December 2005. [52]

Relatively few cases are brought to justice. The Action Plan for the implementation of the strategy has not yet been adopted. The Law on the anticorruption body is still outstanding. A clear institutional setup and the role of existing bodies such as the anti-corruption council remain to be defined.[53]

Overall, there has been some progress since the 2005 report, but there is scope for improvement. Though most of needed legislative measures on anti-corruption are in place, the anti-corruption strategy needs to be implemented without further delay and for its efficient implementation a centralised specialised independent anti-corruption body has to be set up. [54]

Important legislation was adopted during the reporting period, including several pieces of legislation concerning the judicial system, fight against corruption, ratification of the European Charter for regional and minority languages, as well as the modification of the parliamentary Rules of Procedure.[55]

A Law on the Anti-corruption Agency has been sent to Parliament recently.[56]

The draft National Anti-Corruption Strategy was finalised at the end of 2004, approved by the government in mid-May 2005 and sent to Parliament for adoption. The “Decision on determining the National Strategy for combating corruption” which sets forth the Strategy states, inter alia, that the government “is obliged to draft an action plan for implementing” the Strategy, in particular through the setting up of “an independent and autonomous anti-corruption body”. [57]

In Serbia, there is no specialised prosecutor’s office competent for dealing with corruption offences. [58]

Therefore, the GET recommends to create a special unit within the Public Prosecutor’s Office to deal with corruption (including corruption-related economic crime offences).[59]

Therefore, the GET recommends establishing continuous in-service training for police officers and prosecutors in order to share common knowledge and understanding on how to deal with corruption and financial crimes related to corruption, including the full use of the practical and legal means available for tracing and seizing the proceeds of corruption.[60]

At the end of 2004, the draft National Anti-Corruption Strategy was finalised and transmitted to Parliament for adoption. One of the main issues regarded as essential for a successful policy to curb corruption in the country is the reform of the public administration. An action plan was also being prepared in order to ensure the implementation of the Strategy’s general principles.[61]

GET recommends that the Action Plan for the implementation of the National Anti-corruption Strategy be adopted and that an efficient monitoring of its implementation is ensured.[62]

2007

In December 2006, an action plan was adopted to implement the national strategy against corruption. Ministries submitted reports on the implementation of anti-corruption measures and some positive results were recorded in prosecuting corruption. Several new cases were opened involving alleged corruption by civil servants, police and customs officers. [63]

The action plan on the fight against corruption lacks clear deadlines, concrete actions and the necessary resources for its implementation. There are shortcomings in implementing the GRECO recommendations. An anti-corruption agency has not yet been established.[64]

Most of the necessary legislative measures against corruption are in place. However, the anti-corruption action plan needs to be implemented and an anti-corruption agency established.[65]

Current legislation stipulates that special investigative techniques may be used only in cases of organised crime. The new Criminal Procedure Code broadens this to include corruption-related offences and preparatory acts.[66]

Serbia’s standing in the Transparency International index improved during this period and a number of high media profile arrests and debates took place concerning corruption in public affairs.[67]

The planned draft laws on the high judicial council, prosecutorial council, on judges, on courts, on the public prosecutor’s office will eventually be complemented by a new criminal procedure code as well as law on the anti-corruption agency.[68]

GRECO welcomes the establishment of the Special Department for Combating Corruption within the Republic Public Prosecutor’s Office, which is to deal with serious corruption offences and to guarantee consistent application of corruption-related provisions throughout the country by, inter alia, providing special expertise and knowledge in this field to district and municipal prosecutor’s offices, as necessary.[69]

The authorities of Serbia report that the Action Plan for the implementation of the National Anticorruption Strategy was adopted on 21 December 2006. The Government set up a Commission for the Implementation of the National Anti-corruption Strategy, which is also responsible for reviewing the steps taken to comply with GRECO’s recommendations. It is composed of representatives from different ministries, the judiciary, the National Assembly, the Anti-corruption Council, the media and non-governmental organisations. In addition, the draft Law on the Anticorruption Agency, which has been prepared in cooperation with the Council of Europe (PACO Serbia project), determines that the Anti-corruption Agency would be entrusted with the monitoring of the Anti-corruption Strategy and its Action Plan. It is envisaged that this monitoring will continue to benefit from the involvement of a broad range of stakeholders; for example, the members of the Agency’s Management Board are to be nominated by both governmental and non-governmental bodies. The Agency is accountable to the National Assembly to whom it has to report annually concerning progress in implementation of the Anti-corruption Strategy and its Action Plan. An application for EU IPA funds to support the setting-up of the Anti-corruption Agency is in the pipeline: a total of 2,500,000 EUR have been requested (the project, if awarded, is to be co-financed by the Government of the Republic of Serbia). GRECO is hopeful that the Anti-corruption Agency, which will be responsible for, inter alia, monitoring the implementation of the Anti-corruption Strategy and its Action Plan, will be vested with sufficient authority and resources to effectively complete its oversight task.[70]

2005

In March 2005, the High Representative removed a member of the Presidency following corruption charges against him. These developments have adversely affected the functioning and public perceptions of the institution.[71]

There have been a number of political deadlocks in the State-level Council of Ministers and the Republika Srpska Government which have adversely affected the normal work of the executives. Further problems occurred when a Minister resigned following corruption charges.[72]

Nevertheless, in March 2005 the High Representative removed a Bosnia and Herzegovina Presidency member following corruption charges against him and his refusal to step down voluntarily.[73]

The State-level Criminal Code includes chapters dealing with corruption, sanctions against corruption and measures to promote official accountability. The same issues are also covered by the relevant Entity legislation, but there is a need to harmonise the relevant criminal codes.[74]

Anti-corruption efforts have been reinforced by the adoption of a Law on Conflict of Interests and the adoption of a National Anti-Corruption Strategy under Bosnia and Herzegovina’s Mid-Term Development Strategy. However, this document does not yet contain an Action Plan with detailed measures and timelines, and has so far had very little impact. [75]

The Ministry of Security and the State Investigation and Protection Agency (SIPA) coordinate anti-corruption efforts at State level. A special Department for Organised Crime and Corruption, including international prosecutors, has been established within the Prosecutor’s Office of Bosnia and Herzegovina. The courts have begun to prosecute cases of alleged corruption by both private citizens and politicians (including a former member of the State Presidency). Nonetheless, while the judicial system has the capacity to prosecute corruption, the number of successful prosecutions remains low, and mainly based in the activity of international prosecutors. With the establishment of the State Court and the State Prosecutor’s Office, the primary responsibility for investigating, prosecuting and trying most of the major cases of organised crime and corruption is progressively being transferred from international to national bodies.[76]

The GRECO’s first evaluation round report was adopted in 2003 and recommended, among other things, the establishment of a body responsible for the enhancement of country-wide anti-corruption activities, the harmonisation to the largest possible extent of criminal and criminal procedures codes within the country, and to develop adequate public procurement rules at State and Entity-level. [77]

While prosecution of a number of specific corruption cases has been ensured, many continue to escape justice. Adequate anti-corruption action plans have to be prepared and implemented. [78]

As regards prosecution of organised crime and corruption cases by the specialised Department in the BiH Prosecutor’s Office and relevant trials by the State Court, concerns were raised by some interlocutors of the Secretariat delegation with respect to observance of ECHR[79] provisions which prevail over domestic law.[80]

In the absence of a specialised body in BiH to deal exclusively with the fight against corruption, the Ministry of Security and the State Investigation and Protection Agency (SIPA) co-ordinate anti-corruption efforts at State level. A special Department for Organised Crime and Corruption, composed also of international prosecutors, is established within the Prosecutor’s Office of BiH by virtue of a Decision of the High Representative. Increasing efficiency in the fight against organised crime is one of the aims of the planned police reform.

The CoE Group of States against Corruption (GRECO) is expected to assess BiH’s compliance with recommendations issued in 2003 before the summer of 2005.[81]

It must be ensured that not only local but also international judges and prosecutors dealing with organised crime and corruption cases in the BiH Court and the BiH Prosecutor’s Office are properly trained on the ECHR and the Strasbourg Court’s case-law. International presence in the State Court when trying such cases should progressively decline. A single BiH Judicial and Prosecutorial Training Centre should be created in accordance with HJPC proposals.[82]

However, no such plan had been agreed with respect to the presence of international judges in the second chamber for Organised Crime, Economic Crime and Corruption who, at present, constitute the majority in the relevant panels. Upon an initiative of the President of the State Court and in agreement with the High Representative, the gradual phasing out of international judges is now also planned for the second chamber of the State Court. As of the beginning of January 2006, permanent panels for organised crime, economic crime and corruption trials will comprise two domestic judges and one international judge so that the majority will pass to local hands. It is expected that with the gradual takeover of responsibilities for the work of this chamber by domestic judges, the conditions for strengthening the capacities that BiH needs for efficient fight against organised crime, economic crime and corruption will be strengthened. Therefore, there will be no need for additional appointments of international judges (i.e. extension of mandates of judges which expire end of 2006).[83]

In its Compliance Report on BiH (doc. GRECO-RC(2005)1 of 20 May 2005), GRECO concluded that BiH had implemented satisfactorily or dealt with in a satisfactory manner the vast majority of the recommendations contained in the First Round Evaluation Report.[84]

According to the Chairman of the Transparency International (TI) BiH Board of Directors, BiH has registered a slight decrease of corruption although certain sectors remained very disappointing. For its part, the Corruption Perception Index (CPI), released on 18 October 2005 by TI, ranks BiH 88^th out of 158 ranked states. Previously BiH was ranked 82^nd. It is to be hoped that police reform, as recently agreed, will allow for a much more efficient fight against organised crime and corruption. [85]

International presence in Chamber II of the State Court for Organised Crime, Economic Crime and Corruption should progressively phase out as of the beginning of next year in accordance with a plan agreed between the President of the State Court and the High Representative.[86]

The authorities of Bosnia and Herzegovina reported that article 14 of the Law on Ministries and other administrative bodies of Bosnia and Herzegovina (Official Gazette, issue 5/03) defines the competencies of the Ministry of Security and its organisational units which consist of the State Investigations and Protection Agency (SIPA), the State Border Service and the Interpol Office of Bosnia and Herzegovina. This Ministry and in particular SIPA may be considered the strongest mechanisms available to coordinate anti-criminal efforts and anti-corruption efforts in Bosnia and Herzegovina.[87]

The Monitoring Office of the Economic Policy Planning Unit is in charge of monitoring and evaluating the National Anti-corruption Strategy and Action Plan. The Ministry of Security established a Department for Organised Crime and Corruption and an Inspectorate in charge of internal control, in addition to the special Department for Organised Crime and Corruption established under the authority of the Prosecutor’s Office of Bosnia and Herzegovina.[88]

2006

A positive development was the adoption in June 2006 of the 2006-2009 Strategy for the Fight against Organised Crime and Corruption. This strategy now needs to be properly implemented. During implementation, Bosnia and Herzegovina needs to pay particular attention to developing the necessary structures and increasing enforcement capacity. [89]

The courts have begun to prosecute cases of alleged corruption by both private citizens and politicians. Nonetheless, the number of successful prosecutions remains low and there is clear scope for improvement. [90]

There is no clear legal definition of the term “corruption” in Bosnia and Herzegovina’s criminal legislation. Anti-corruption legislation is not fully harmonised across the country. The State-level Criminal Code includes chapters dealing with corruption, sanctions against corruption and measures to promote official accountability. The same issues are also covered by the relevant Entity legislation, but there is a need to harmonise the various criminal codes. The rapid development of an appropriate legal framework remains central. GRECO recommendations need to be fully taken into account together with the other relevant global conventions originating in the Council of Europe, OECD and UN. [91]

Furthermore, progress has been notable in the areas of prosecution of war crimes and trials, indictment of high officials, as well as the fight against corruption and organised crime.[92]

However, progress towards adoption of the State Anti-Corruption Strategy has been halting, although now on a better track, and effective implementation strategy will remain of vital importance.[93]

Implementation of the co-operation programmes with the Council of Europe continued and some important benchmarks were achieved, such as the adoption of a State Anti-Corruption Strategy on 15 June 2006.[94]

The State Anti-Corruption Strategy, elaborated with the assistance of the CoE, was adopted by the Council of Ministers on 15 June 2006. [95]

The Entity representatives interviewed by the GET often indicated that SIPA was not fully operational.[96]

In March 2006, the “Strategy for the Fight Against Organised Crime and Corruption” was adopted. The focus of the Strategy is the establishment of an institutional and legal framework for fighting the above crimes, and more particularly the prevention of corruption, criminal prosecution as well as education and public awareness raising.[97]

The “Strategy for the Fight Against Organised Crime and Corruption” was adopted in March 2006. It includes a range of specific measures, institutions responsible for implementation and deadlines.[98]

Consequently, the GET recommends to ensure a systematic assessment and evaluation of the effectiveness of the Anti-Corruption Strategy and its Action Plan through the setting up of an independent anti-corruption body with sufficient resources. [99]

With regard to public administration, a Strategy for the Fight against Organised Crime and Corruption was adopted in March 2006; much could be done to ensure its success, notably by regular monitoring of its implementation by an independent anti-corruption body. [100]

The new provisions on confiscation and seizure are comprehensive and generally meet the standards of the Council of Europe Criminal Law Convention on Corruption; that said, there is a clear need to implement the new legal framework and this calls for improved coordination, effective cooperation and extensive training of the agencies involved in the detection, investigation and prosecution of corruption.[101]

2007

A National Anti-Corruption Strategy and action plan was adopted in 2006, but the implementation has not been satisfactory, due in part to a lack of resources. The second evaluation report adopted by the Council of Europe Group of States against Corruption (GRECO) in December 2006 underlined the need to enforce the legal framework and to improve coordination and training of the agencies involved in fighting corruption and seizure of the instruments and proceeds of crime. Limited action has been taken in this regard. No action has been taken to improve anti-corruption legislation. The Criminal Codes of the State, Entities and Brčko District establish a general obligation to report suspicions of criminal offences – including corruption – but no legal measures are in place to ensure confidentiality and to protect civil servants reporting such cases. [102]

No independent anti-corruption agency has been established. Convictions for corruption remain limited. [103]

Strategies and action plans are in place, but they are not properly implemented. More vigorous investigation and prosecution is necessary. [104]

Out of the action plans provided for by the national strategy to combat organised crime and corruption, only the one on stolen vehicles has been drafted.[105]

BiH adopted in June 2006 the three-year National Anti-Corruption Strategy and an operational action plan for its implementation, but so far no institutional assignment was given to a specialised agency to co-ordinate and follow-up on the implementation of the Strategy and Action Plan.  The Second Round Evaluation Report on BiH which contains a number of recommendations and observations was adopted by GRECO in December 2006. The report underlined that there was a clear need to enforce the legal framework and called for “improved co-ordination, effective co-operation and training of the agencies involved in fighting corruption”. [106]

Implement effectively GRECO’s recommendations listed in the Second Round Evaluation Report.[107]

During the period under review, no major improvements can be reported in this respect. BiH has to show that it is ready to sustain anti-corruption efforts in the long run.

In November 2007, the High Representative decided to re-activate within his office the anti-corruption unit, whose role has yet to be defined, but the High Representative made it clear that the Unit will not investigate or prosecute individual cases. According to HR Lajcak the “team will co-operate closely with local and international institutions to analyse the nature and strength of links between crime, terrorism, war crime suspect networks and the potential involvement of high-ranking individuals in Dayton obstruction or in obstructing the legitimate functioning of BiH institutions”.[108]

2008

On 26 May 2008, the EU started the technical dialogue on visa-free travel with BiH and, within the next few weeks, BiH authorities will receive a “roadmap” detailing all the benchmarks that will have to be met by the country before lifting the EU visa restrictions. It is expected that the EU will include benchmarks such as the introduction of biometric passports, better control of the borders, fight against organised crime, anti-corruption measures and curbing illegal immigration.[109]

The GRECO Second Round Evaluation Report, which was adopted in December 2006, contained a number of recommendations on the need to enforce the new legal framework and asked for improved co-ordination and better training of the agencies involved in the detection, investigation and prosecution of corruption. In the first half of 2009, GRECO will evaluate compliance with these recommendations. [110]

2005

Since 2003, a financial investigation unit, staffed by Guardia di Finanza officers, has the mandate to conduct financial inspections of public bodies and public enterprises as well as other organisations receiving public funds and launch criminal investigations. Also an investigation task force – comprised of representatives of the UN office of internal oversight services, the European anti-fraud office and the financial investigation unit – has received a wide mandate to undertake administrative investigations to identify fraud in the expenditure of public funds. The Office of the SRSG [111] is coordinating the implementation of recommendations issued by the investigation task force. Internal investigation services have been set up in the police and the judiciary.[112]

UNMIK and the provisional institutions of self-government have set up a special prosecutor’s office as part of the office of the public prosecutor. The office will be handling cases of organised crime, terrorism, trafficking in human beings and corruption cases. All these cases are currently handled by international prosecutors. Efforts should also be given to combat financial crime and its links to corruption, fraud and organized crime.[113]

2006

Progress in implementing the law on the suppression of corruption has been slow.[115]

Neither the office of the auditor general nor the police are represented in the anti-corruption council. Three of its members represent political parties and one member is an acting municipal chief executive officer. There are doubts about the political neutrality of the council members.[116]

2007

The KAA is not yet fully staffed. It has repeatedly had to defend its independence against political pressure from within the government and the Assembly. Further training of its staff is required. [118]

The composition of the government anti-corruption Council does not sufficiently guarantee its impartiality. The Council is not very active in the definition and implementation of anticorruption policies. The unclear definition of responsibilities between the KAA and the Office of Good Governance, whose head is deputy head of the anti-corruption Council, has led to friction and remains to be addressed.

The differing definitions of corruption in the penal law and in the anti-corruption law make for legal uncertainty. The implementation of the anti-corruption action plan is considerably behind schedule.[119]

In September 2007 the killing of a police officer led to a protest march against crime and corruption that was organised by civil society organisations.[120]

2005

The release of the macro-financial assistance is associated with the conditions which include improved public finance management with more secure financial circuits, measures to improve the functioning of the public administration and the fight against corruption, and progress in financial sector reform.[121]

Some efforts have been made towards progress in the fight against corruption, with the work of the Anti-Corruption Monitoring Group (ACMG) continuing, participation in the Council of Europe Group of States against Corruption (GRECO), new legislation dealing with conflicts of interest, an increasing number of prosecutions of public officials for corruption, strong action against police corruption and the ratification of a number of international anticorruption conventions. [122]

Deficiencies in the implementation, enforcement and coordination of efforts nonetheless remain, and international perceptions of the country in this respect continue to be poor. Despite Albania’s efforts, and the active support of the international community in supporting Albania’s anticorruption strategy, tangible results in the fight against corruption remain limited. [123]

The government has continued to support the institutional and legislative framework in the fight against corruption. As regards the institutional framework, the ACMG, a permanent body under the Council of Ministers, continued its work in reporting and monitoring anticorruption measures. Further improvements are needed, as line ministries have shown little interest in attending the ACMG meetings and some participants have appeared insufficiently prepared. The transmission of information on anti-corruption measures implemented by the line ministries should be improved, and the protection offered by immunity should be used only in compliance with international rules and practices. Implementation of Albania’s Action Plan on the Prevention of and Fight against Corruption should be strengthened and its updates should include realistic, precise and measurable steps.[124]

The number of public officials prosecuted for corruption is increasing: 171 in 2004, up from 76 in 2003 and 58 in 2002. [125]

Given the close inter-relationship between corruption and organised crime, the October 2004 “anti-mafia package” should in the medium term also help alleviate some aspects of corruption. [126]

Nonetheless tangible results remain limited: considerable further efforts are required to enforce current legislation and adopt new measures in line with Albania’s anti-corruption action plan, GRECO recommendations and international anti-corruption conventions.[127]

Albania should ensure that its strategy to fight corruption is realistic and precise, that it is adequately enforced, and that the capacity to investigate and prosecute transgressions is in place. Albania should show more commitment to, and devote more resources to, investigating and prosecuting cases of corruption in all public services including the police, and to implementing the Law on Declaration of Assets.[128]

The recent amendment of the provisions of the Criminal Code on corruption (Law No 9275 of 16.9.2004), the adoption of a new “anti-mafia law” (Law No 9284 of 30.9.2004 on preventing and striking at organised crime) and the amendments to the legislation concerning illegal trafficking constitute welcome developments. They could affect positively the fight against corruption if, in every aspect of the fight against corruption, the possible connection with organised crime and money laundering is taken into account. In the GET’s view, enhanced coordination and co- operation between the authorities in charge of the fight against corruption and those in charge of the fight against organised crime, trafficking in human beings, drug trafficking and money laundering will enable them to enhance their effectiveness.[129]

The prevention of and fight against corruption remain amongst the highest priorities of the Government, which has established two high-level bodies to direct anti-corruption efforts: the Government Commission for the Fight Against Corruption (GCFC) and the Anti-Corruption Monitoring Group (ACMG) comprised of a Monitoring Board and an Anti-Corruption Unit.[130]

2006

The number of public officials prosecuted for corruption has increased. Of 237 prosecuted in 2005 and 75 in first quarter of 2006 (compared with 171 in 2004) 84 were sentenced, including mid- and high-level officials. Despite fears that staff changes could be used as a political weapon, leniency has not been shown towards those affiliated to the governing party.[131]

The government has set up an Anti-corruption Task Force headed by the Prime Minister. It consists of line ministers and heads of sensitive government agencies such as taxation, privatisation, licensing and public procurement. It analyses and assesses corruption problems in specific sectors and formulates strategic priorities and practical measures. The seniority of its membership gives it the authority to make real changes. The existing Anti-Corruption Monitoring Group has been merged into the Department of Internal Administrative Control and renamed the Department of Internal Administrative Control and Anti-Corruption (DIAC). It operates under the Prime Minister’s office and comprises a director and ten inspectors who analyse reported cases of corruption in all branches of the public administration. They propose administrative measures or send the cases for criminal investigation. [132]

The task force of selected prosecutors and judicial police officers established at the Tirana district court now deals with corruption cases as well as financial crimes.[133]

Some legislative measures designed to combat corruption have been rejected by the Constitutional Court following concerns on individual rights (for example a law against nepotism in the customs and tax administrations). A government proposal to lift the immunity of members of parliament for the purposes of prosecution for corruption is still pending in parliament as a 3/5 parliamentary majority is required and the opposition objects on constitutional grounds. [134]

Implementation of GRECO Evaluation Report recommendations has been limited. The government has followed a new approach rather than using the framework of the National Anti-Corruption Strategy which it has not updated. A new law to encourage citizens to denounce corruption in the public administration puts into action a GRECO recommendation on whistle-blowing. However, this has led to concerns that denunciation could be abused for score-settling.[135]

2007

The government has drafted a new anti-corruption strategy for 2007-2013. A strategy covering an extended period shows a positive change in approach from short-term solutions to more effective and sustainable measures. [136]

Specific legislation on bribery has been adopted. Institutional capacity to investigate and prosecute corruption was strengthened by setting up a new task force against corruption and economic crime in the prosecution office, which coordinates with police and intelligence structures. In the recent reorganisation of the police, the structures dealing with economic and financial crime were upgraded to the level of directorate and a special anti-corruption section was set up. Anti-corruption investigations led to the arrest of a number of high-level officials. Prosecutors, judicial police and judges have been trained on anti-corruption legislation. [137]

The government’s new anti-corruption strategy does not include sufficiently concrete objectives and indicators. [138]

Further progress is required on implementing a second set of GRECO recommendations from 2005. These include strengthening procedures and training for the police and the prosecutor on seizure of assets and improving training on corruption for tax authorities, private accountants and auditors.[139]

A cooperation agreement on tackling financial crime and corruption offences was signed between the Ministries of the Interior and of Finance, the State Intelligence Service and the prosecution office.[140]

2005

Amendments to the Act on the Office for the Prevention of Corruption and Organised Crime (USKOK) strengthening the role and jurisdiction of the Office and providing for better coordination with police and other investigative bodies entered into force in March 2005. The failure of USKOK to successfully prosecute a number of highly publicized cases since its inception was partly explained by shortcomings in the old law. The degree to which USKOK will now become fully operational remains to be seen.

In any case, administrative capacity in the fight and against corruption needs to be considerably further improved, not only at USKOK, but across the board including the courts, the State Attorney’s Office and other bodies and agencies involved in fighting corruption. At the enforcement level, more attention should be given to the effective prosecution of corruption cases. Action plans to prevent and combat corruption in the relevant law enforcement agencies (border police, police, customs, judiciary) need to be developed. A new National Strategy against Corruption is still awaited as a successor to the 2002 National Programme to Combat Corruption. It is vital that a new multi-annual anticorruption strategy and action plan is implemented with the necessary resolve so as to avoid the lack of effective implementation associated with the current programme. This should also clearly build on lessons learnt from the implementation of the 2002 Programme. Attention should be paid to high level and political corruption as well as to prevention and awareness raising on the negative impact of corruption, including on the investment climate. An overall statistical methodology is also needed in order to better monitor corruption.[141]

Croatia should considerably step up efforts in this field, in particular by following up the 2002 National Programme to Combat Corruption with a new national anti-corruption strategy and action plan, which should contain clear benchmarks, designate responsible institutions, provide adequate financial resources and a timetable for implementation. It would be advisable that the current anti-corruption policy of Croatia be subject to an independent audit, the results of which could serve to better focus activities. An interinstitutional body should monitor its implementation. Croatia also needs to deploy greater efforts to detect and combat high-level corruption, including specific measures in the national strategy. As regards implementing capacity, amendments to the Act on USKOK (the Office for the fight against Corruption and Organised Crime) entered into force in March 2005 which strengthen the role and jurisdiction of the Office, and more clearly define the Office’s activities. However, so far only one of the Office’s four departments is operational and it remains to be seen whether these amendments will be effectively implemented. USKOK must be made fully operational as soon as possible and needs to take on the leading role in the fight against corruption, including improved co-operation with the police, especially at local level. There should in general be greater attention paid to prevention, awareness raising, internal control and supervision of the public administration. In this respect, it would be useful to conduct a coordinated awareness-raising campaign involving the media, nongovernmental organisations and the public, in order to inform about the danger of corruption, measures taken to fight it, sanctions that may be imposed and the institutions involved in fighting corruption. A more pro-active approach towards investigating and effectively prosecuting corruption should be established. Specific action plans for preventing and fighting corruption in law enforcement agencies should be developed.[142]

Finally, an overall statistical methodology should be developed in order to better monitor the fight against corruption.[143]

As regards corruption policy, there has been considerable progress on the legislative front, but this must now be matched with pro-active enforcement, preventive and awarenessraising measures, yielding demonstrable results.[144]

In February 2005, the Act on the Office for the Prevention of Corruption and Organised Crime (USKOK) was amended to broaden its competence, as well as that of the courts.[145]

In the area of anti-corruption, there has been progress in establishing a legal framework for tackling corruption. However, these efforts need to be followed up with real implementation on the ground including improved coordination of the government bodies and agencies involved.[146]

A solid legal framework and reliable institutions are required to underpin a coherent policy of prevention and deterrence of corruption.[147]

Particular attention needs to be paid to providing specialised training to judges and prosecutors on issues such as economic crime, money laundering, the fight against corruption and management training.[148]

2005

Parliament receives annual reports from the State Auditor, the Ombudsman and the State Commission for the Prevention of Corruption and debates them in plenary sessions.[149]

The former Yugoslav Republic of Macedonia has adopted various anti-corruption measures. In addition to indirect incrimination of corruption through a number of related criminal offences in the Criminal Code, a Law on Prevention of Corruption was adopted in 2002. Under this Law, a State Commission for the Prevention of Corruption was established in November 2002 as a consultative and preventive body. The Commission adopted a National Programme for Prevention and Repression of Corruption in 2003 and an annex on measures to prevent corruption at local level in June 2005. [150]

In 2005 new departments were established in the Ministry of Interior and in the Public Prosecutor’s Office to combat organised crime and corruption. Cooperation between them is gradually being established. [151]

The overall coordination and cooperation between law enforcement agencies (including the Public Prosecutor’s Office, the Police, the Financial Police, the Directorate for the Prevention of Money Laundering and the judiciary) needs to be strengthened and the existing memoranda of understanding must be fully implemented. There is still confusion over competence and weaknesses in the collection and investigation of relevant evidence. While progress has been made on implementation of the National Programme for Prevention and Repression of Corruption, much remains to be done. Beyond formal implementation of the programme, further efforts are needed to ensure effective enforcement of the provisions adopted. [152]

In addition, the effectiveness of the State Commission for the Prevention of Corruption depends on an appropriate level of cooperation by the State bodies. The guidelines adopted in 2004 to facilitate this cooperation have contributed to improving the situation. Better cooperation with the Public Prosecutor would also enhance the effectiveness of the action against corruption. [153]

However, overall, the outcomes of the judicial proceedings have been slow. A number of old cases of corruption (especially in the context of privatisation, disposal of particularly important State assets, companies and land, tax evasion and fraud) have remained unsettled. The independence of the officials in charge of investigations and of the judges needs to be enhanced. Progress on implementation of the State Programme for the Fight Against Corruption, on the follow-up given to the recommendations by the State Commission for the Prevention of Corruption and by the State Audit Office, including by Parliament, as well as on addressing the weaknesses of the institutions and the lack of transparency in public decisions would further demonstrate the political will to address the corruption phenomena. [154]

Equally, Member States must fight corruption effectively as it represents a threat to the stability of democratic institutions and the rule of law. A solid legal framework and reliable institutions are required to underpin a coherent policy of prevention and deterrence of corruption. [155]

The former Yugoslav Republic of Macedonia has adopted various anti-corruption measures.[156]

This Commission prepared a State Programme for Prevention and Repression of Corruption in 2003 and adopted an annex on measures to prevent corruption at local level in June 2005. [157]

As a consultative and preventive body, the State Commission for the Prevention of Corruption’s effectiveness relies on co-operation from the state bodies. Guidelines adopted in 2004 on co-operation with administrative bodies, public enterprises and entities and legal entities with state capital have contributed to improving the situation. Better co-operation between the State Commission and the Public Prosecutor would enhance the action against corruption.

Specific administrative anti-corruption structures are in place. [158]

Most of the 17 recommendations made by GRECO in 2002 have been put into action. Four have been partially met, and two have yet to be implemented. The two remaining recommendations concern immunity rules and require changes in the Constitution before they can be implemented. Current proposals by the government to amend the Constitution include the necessary changes. [159]

Despite the existence of memoranda of understanding, the overall co-operation between law enforcement agencies (including the Public Prosecutor’s Office, the police, the Financial Police, the Directorate for the Prevention of Money Laundering and the judiciary) needs to be strengthened. There is still confusion over competence and weaknesses in the collection and investigation of relevant evidence. [160]

Much remains to be done to implement the State Programme for the Fight against Corruption, fully to follow up the recommendations by the State Commission for the Prevention of Corruption and, above all, to address the weaknesses of the institutions and the lack of transparency in public decisions and to ensure implementation of the legislation adopted. The capacity to investigate and prosecute corruption must be increased and cooperation among law enforcement bodies and between the administrative bodies, as well as between the Public Prosecutor’s Office and the State Commission for the Prevention of Corruption, needs to be enhanced. Progress in these areas would further demonstrate the political will to address the corruption phenomena.[161]

The SAO[162] reports its findings and recommendations to Parliament (Committee for Financing and Budget) and to the Ministry of Finance. Since the SAO has no executive and regulatory authority and cannot apply sanctions, suspicions of fraud and corruption are reported to the competent authorities (e.g. the Public Prosecutor and the State Anti-Corruption Commission).[163]

The State Commission is mainly a body for prevention of corruption; it has been given the competence to adopt the National Programme against Corruption and the Matrix for its implementation. Moreover, the State Commission has control functions; it may investigate cases of, for example, conflicts of interest with regard to elected officials and civil servants and is also entitled to initiate cases for investigation by the prosecutorial bodies and it receives complaints from the public (the control function is described below).[164]

One of the more significant measures is the establishment of the State Commission. [165]

Above all, the State Commission has developed the State Programme for the Prevention and Suppression of Corruption, which is an extraordinarily comprehensive piece of work covering almost every sector of Government, including the public administration.[166]

Therefore, the GET recommends that the Government formally adopts the State Programme for the Prevention and Suppression of Corruption.[167]

2006

The government presented its priorities for 2006-2010 which were: improving the living standards of the citizens, increasing employment, strengthening the fight against corruption, developing democracy, improving interethnic relations, political stability and integration into the EU and NATO.[168]

Since the November 2005 opinion, the legal and institutional framework to address corruption has been further strengthened. [169]

Recommendations from the Council of Europe Group of States Against Corruption (GRECO) are steadily being implemented. There has been progress in the cooperation and coordination in the fight against corruption. An interministerial body was set up in April to co-ordinate the activities of those involved. Relations between the State Anti-Corruption Commission and the Public Prosecutor are more constructive. Co-operation with the Public Prosecutor’s Office has progressed at the operational level, especially in the Specialised Unit for Fight Against organised Crime. [170]

However, the results of legal and institutional measures remain far from satisfactory and have had a limited impact. [171]

Little progress was achieved in identifying the extent of corruption, which hampered preventive and detection measures. Whereas there have been a few high profiles cases concluded, such as the case of the Director of Health sentenced to four years in prison, prosecutions of corruption cases remain at a low level.[172]

The implementation of the existing anti-corruption regulations requires additional capacity and political will.[173]

More initiatives should be undertaken by the Public Prosecutor Office. More remains to be done to demonstrate a zero tolerance policy. The irregularities identified by the State Audit Office in its reports should be followed up. The potential of the Ombudsman Office should also be used more fully.

The new government has put a particular focus on the fight against corruption in its work programme. It remains to be seen if the political intention demonstrated will be strong enough to ensure effective progress in this area.

Overall, there was some progress in strengthening the legal and institutional framework for fighting corruption. [174]

The legal and institutional framework to address corruption has been strengthened. The immunity rules have been changed, in line with the recommendations of the Council of Europe Group of States Against Corruption (GRECO), through changes to the Constitution and to the relevant laws. Only the Prime Minister will be given immunity, which may be lifted by Parliament.[175]

The new government presented a set of additional measures aimed at enhancing the fight against corruption. The State Anti Corruption Commission has continued to monitor the implementation of the Programme for Prevention and Repression of Corruption. [176]

An inter-ministerial body was set up in April to co-ordinate the activities of all organs involved in the fight against corruption. At the operational level there is ongoing cooperation between the Public Prosecutor’s Office, and the relevant services in the ministry of interior, especially the Specialised Unit for Fight Against organised Crime, has progressed.

However, tangible results in the fight against corruption remain dependant on further strengthening of the institutions, more transparency in public decisions and to the full implementation of adopted legislation. [177]

Overlapping competences and the insufficient exchange of information between the law enforcement bodies involved in combating corruption need to be fully addressed. [178]

2007

Five specialised court departments have been established to deal with organised crime and corruption, one of which is fully operational.[179]

Progress was made in anti-corruption policy and measures. The legal and institutional framework was strengthened, and strong political commitment yielded some results.[180]

Determined efforts were made to prevent and punish corruption. The renewed State Anti- Corruption Commission began its five-year mandate and the government adopted an Action Plan. Cooperation with the Public Prosecutor’s Office and other state bodies improved. Law enforcement agencies, in particular the Ministry of Interior and the public prosecution service, and also the customs administration, demonstrated a stronger determination. The capacity to investigate corruption was reinforced and coordination among law enforcement agencies improved. Toll-free telephone hotlines have provided a channel for the public to report cases of corruption.[181]

The approach to tackling corruption is not yet comprehensive and the Action Plan lacks a clear budget allocation. The NGO sector remains weak, politicised and divided in this field.

The high number of legislative acts has created a fragmented legal system which makes implementation and monitoring more difficult. Attention must be paid to the loopholes in the legislation identified by the State Audit Office and the state commission, as well as to the quality of the legislation in order to increase its clarity and consistency.[182]

Overall, the anti-corruption legal framework needs to be reviewed and strengthened, in particular with a view to ensuring effective implementation.

Lack of human and technical resources continues to impede the work of the state commission. [183]

A track record demonstrating the capacity of the judiciary to take decisions against corruption at all levels needs to be established. Improved coordination between the police and the prosecution office during investigations is needed. Delivery and enforcement of court decisions need to be strengthened.

There is still neither a unified methodology nor a system for collecting and sharing intelligence and for mutual access to databases. This hampers more effective coordination among law enforcement agencies and watchdog bodies. [184]

Overall, implementation of the framework for fighting corruption has yielded some results, in particular a number of high level prosecutions and convictions. However, legal reforms are still in early stages of implementation and a more comprehensive and consistent approach across all sectors would improve their impact. [185]

Considering the challenges the country has to meet, sustained political commitment is required.[186]

The legal and institutional framework for anti-corruption policy and measures has been strengthened. The government has emphasized it strongly in its work programme and public statements.[187]

As regards the Council of Europe Group of States Against Corruption (GRECO) recommendations good progress has been made: the first set has been mostly implemented and implementation of the second set is ongoing. [188]

Amendments to the laws on healthcare and on health insurance aimed to reduce corruption in the health sector.

The mandate of the State Anti-Corruption Commission was renewed for 5 years and it began its work. A new programme for prevention and suppression of corruption was drafted with input from representatives from state administrative bodies, media and civil society was adopted. It was complemented by the government’s action plan. [189]

Cooperation between the state commission and the Public Prosecutor’s Office has continued to improve, and cooperation with the Public Procurement Bureau has been strengthened. As a result of improved coordination, several cases related to combating corruption and organized crime were pursued.[190]

However, the approach to tackling corruption is not yet comprehensive and the Action Plan lacks a concrete allocation of resources. [191]

Delivery and enforcement of court decisions, which involves strengthening of the judiciary and consistent efforts by all institutions to pursue a zero tolerance policy, are still deficient. There is still no system of collecting and sharing information and no mutual access to databases relating to the fight against corruption and organised crime. [192]

Cooperation at central level between law enforcement agencies and the judiciary meets international best practice. This is due to improvement in the cooperation between the organized crime department and the sector for internal control and professional standards within the Ministry of Interior and the special unit for the fight against organised crime and corruption in the public prosecutor’s office. Both the number of investigations carried out and their quality are satisfactory; use of special investigative measures and techniques has become increasingly common. However, cooperation between the public prosecutors and criminal police of the regional headquarters is not satisfactory. Gaps remain in the law on criminal procedure, notably the provisions on special investigative measures, especially for the fight against corruption.[193]

Enactment of the law on monitoring of communications was an important step towards an appropriate legal framework for the fight against terrorism, organised crime and corruption. Its implementation needs to be carefully monitored.[194]

The authorities report that on 19 December 2006 the Government adopted the State Programme for the Prevention and Suppression of Corruption and made an explicit commitment to ensure its implementation.

Moreover, the authorities indicate that the State Commission for the Prevention of Corruption has prepared a new Programme for the Prevention and Suppression of Corruption supplementing the existing State Programme with regard to the measurement of the risks of corruption and of the efficiency of the institutions engaged in the fight against corruption, as well as action plan. [195]

2004

In its 2003 Regular Report, the Commission found that: “Corruption remains a problem, and Bulgaria should maintain concerted efforts to implement measures in this respect. The fight against corruption remained high on the political agenda and further measures in this context were adopted.”[196]

Since the last Regular Report, there have been several other good examples of co-operation with civil society, notably in the social field and in the fight against corruption.[197]

Substantial delays due to frequent referrals of cases back to the investigation and preliminary investigation stages negatively affect Bulgaria’s capacity to prosecute organised crime and corruption.[198]

Education and health care are also considered to be amongst the most corrupt sectors of the administration.[199]

There are no reliable surveys of the level of corruption at local level (municipalities). Since the beginning of 2003, the collection and processing of statistical information on judgments on bribery distinguishes between active and passive bribery in the private and public sector, trade in influence and abuse of official positions. In total, 322 cases were examined by courts which pronounced 88 sentences, mostly for abuse of official position and for active bribery.

During the reporting period, further pieces of legislation and regulation have been adopted and amended to continue to align the legislative environment with the main international standards in the fight against corruption.[200]

Following the publication last year of a report on the implementation of the National Strategy against Corruption (2001), the government adopted in December 2003 an updated Action Plan for the period 2003-2005. Its objective is to achieve an institutional and legal environment based on EU principles and standards. It emphasises corruption prevention activities and the development of control, and includes specific sector strategies in health and education. However, it does not specifically cover high level and local corruption. [201]

Overall, the approach taken by the Bulgarian authorities in the fight against corruption has left aside the need to take specific measures in the fight against high level corruption, in the political, local and business circles. The institutional set-up in the fight against corruption has been further consolidated. The inter-ministerial committee, chaired by the Minister of Justice, has been in charge of coordinating and controlling the implementation of the National Strategy and the Action Plan since February 2003. Special investigation departments have been set up by the Supreme Cassation Prosecutor’s Office. [202]

Memoranda of understanding have been signed between the Supreme Judicial Council, the Prosecutor’s office and the Ministry of Justice on exchange of information on corruption. Special units within various ministries and within the police and border guards are in charge of fighting corruption. Lawsuits for corruption form a small part of all the cases in penal procedure. Nevertheless, the pre-trial proceedings on corruption charges are increasing, from 2 253 cases in 2001 to 4 458 in 2002 and 6 785 in 2003. In 2003, the number of persons convicted in first instance for corruption-related crimes was 431. [203]

On issues such as border control, visas, migration, asylum, drug trafficking and money laundering, combating organized crime, the fight against terrorism, fraud and corruption, police and judicial co-operation, customs cooperation, data protection and the mutual recognition of court judgments, as well as human rights legal instruments, Member States need to be equipped to ensure they achieve adequate and acceptable standards of implementation.[204]

Implementation of the Bulgarian government’s anticorruption strategy continued throughout the reporting period. In December 2003 the action plan for the implementation of the strategy was updated to cover the period 2004- 2005. [205]

As regards the fight against fraud and corruption, Bulgaria has partly aligned its legislation with the acquis. [206]

As regards the fight against corruption, progress has been made in implementing the anti-corruption strategy and it is generally acknowledged that this policy is starting to have visible results on the ground as regards petty corruption. [207]

However, significant further efforts are needed to strengthen the law enforcement capacity and policy formulation in order to step up the fight against organised crime and corruption.[208]

Bulgaria should start to implement the necessary reforms of the structures of the judiciary, notably vis-à-vis the pre-trial phase, and enhance its progress in the fight against corruption.[209]

GRECO recommended to promote objective research on corruption with a view to developing a precise picture of the situation in the country and in particular institutions.[210]

The authorities of Bulgaria have reported that in parallel to the setting up of the UISCC,[211] the Criminological Research Council (CRC) was established. It became operational in April 2003, operating under the aegis of the Ministry of Justice from which it receives material, technical and financial support. A pivotal part of its role is dealing with corruption-specific research. [212]

The foundations were laid by the Bulgarian Government with the adoption on 1 October 2001 of a National Strategy on Combating Corruption, implemented by the Action Plan on the Implementation of the National Strategy on Combating Corruption. On 11 February 2002, the Minister of Justice became Head of the Commission on the Coordination of the Activities in the Field of the Fight against Corruption (the Commission) and thus responsible for both the National Strategy and Action Plan.[213]

The authorities of Bulgaria have reported that they have extended three main areas of the anticorruption regime. Firstly by widening the offence regime under the Criminal Code to include: non-material (non-valuable) advantages within the scope of the definition of a bribe; criminalisation of bribery in the private sector, trading in influence, passive bribery of foreign public officials, bribery of arbitrators and, in some specific cases, bribery of lawyers; enlargement of the scope of the definition of a foreign public official; restriction of the existing defences concerning the punishment of active bribery; introducing a fine as an additional sanction for bribery; and more severe sanctions for active and passive bribery of judges, jurors, prosecutors and investigating magistrates. Following the above amendments to the Criminal Code, in December 2003, the National Assembly ratified the Additional Protocol to the Criminal Law Convention on Corruption and withdrew the reservations made by Bulgaria in 2001 on ratification of the Criminal Law Convention on Corruption. [214]

2005

Enhanced efforts are needed to improve the functioning of the justice system, particularly as regards the pre-trial phase and the penal procedures, to address the problem of backlogs at courts and to combat efficiently organised crime and corruption.[215]

Finally, a number of areas of serious concern requiring immediate action from Bulgaria so that it may reap the benefit from EU accession but also in order to preserve the balance of the Union. These areas include the ability to absorb European funds allocated to Bulgarian beneficiaries, the need to ensure a high level of food safety and to fight efficiently and in a pro-active manner corruption and organised crime. The Bulgarian authorities are strongly encouraged to spare no efforts to remedy the existing gaps without further delay.[216]

Report as requiring further improvements: public administration reform (all aspects, but especially local and regional administration); justice reform (all aspects, including police and measures to combat organised crime); anti-corruption measures; trafficking in human beings; freedom of expression/media independence; ill-treatment in custody and prison conditions; childcare and mental healthcare system; protection of minorities and integration of the Roma minority.[217]

Furthermore, there is a need for revision of other legal acts, including the Judicial System Act, the Attorney Act or the Ministry of the Interior Act, with a view to considerably enhancing the efficiency of the Bulgarian penal justice system and establishing the required capacity to deal with organised crime and corruption. [218]

The main problem is weak results in the investigation and prosecution of corruption cases. There were no reported cases of completed prosecutions of high-level or political corruption cases, and very few concerned members of the magistracy.

There were few significant legal developments in this area in the reporting period. However, the legal instruments required by the acquis are almost all in place. [219]

In September 2005, the Law amending the Law on Administrative Violations and Sanctions was adopted dealing with liability of legal persons. Bulgaria also continued to implement the “Updated Action Plan for the National Anti- Corruption Strategy 2004-2005” through the Commission for the Coordination of the Fight against the Corruption. The administrative capacity of this Commission remains weak. The Commission focuses above all on prevention and education measures, such as the development of special programmes for education in anti-corruption practices at the Public Administration and European Integration Institute and in various high schools, and the implementation of specific programmes for prevention in the different ministries and agencies, taking into consideration their specific activities.

In February 2005, the Council of Ministers adopted an amendment supplementing the National Strategy for Combating Corruption of October 2001, which provides for measures to combat high-level corruption. The amendment is aimed exclusively at undertaking measures to prevent corruption in the administration of the executive power at the level of political cabinets and at curbing corruption in other sensitive spheres, such as public procurement. However, deadlines fixed in the National Strategy for Combating Corruption have been largely missed and consequently its impact remained very limited.[220]

Bulgaria’s current anti-corruption policy would greatly benefit from an independent audit. The results of such an audit could feed into the new strategy and focus on better targeting remaining problems.

Bulgaria continued to take a number of administrative measures to strengthen the fight against corruption. The necessary structures within law enforcement agencies and the judiciary have been created, but their results so far vary considerably.[221]

Boxes labeled “Anti-corruption” were placed on the premises of the Ministry of Justice to encourage reporting by staff on suspected cases.[222]

On issues such as border control, visas, migration, asylum, drug trafficking and money laundering, combating organised crime, the fight against terrorism, fraud and corruption, police and judicial co-operation, customs cooperation, data protection and the mutual recognition of court judgements, as well as human rights legal instruments, Member States need to be equipped to ensure they achieve adequate and acceptable standards of implementation.[223]

As regards the fight against fraud and corruption, efforts have continued on the implementation of the National Anti-Corruption Strategy 2004-2005 and the Program for Execution of the National Strategy for Counteraction to the Corruption 2004-2005. [224]

In February 2005 the National Anti-Corruption Strategy was amended to include a number of measures to fight high level corruption, though deadlines to implement these measures have been missed. [225]

2006

The aim of this report is to provide an assessment of certain areas that were considered to need further improvement in the 2005 October monitoring report. Eight such areas were identified: public administration reform; the justice system; the fight against corruption; the fight against trafficking in human beings; ill-treatment in custody and prison conditions; children protection; the disabled and mental healthcare system, and the protection and integration of the minorities.[226]

The pre-trial phase continued to be a serious bottleneck for organised and economic crime as well as for corruption cases to find a final settlement within a reasonable delay due to the formalistic character of the Penal Procedure Code which was in force until the end of April. The impact of the new Penal Procedure Code will need to be carefully monitored. [227]

In December 2005 a report was published on the results of the implementation of the Anti- Corruption Action Plan for 2004-2005. The report lists actions that have been taken to prevent corruption in the state administration. In January 2006, following consultation with NGOs, the Anti-Corruption Strategy covering the period 2006-2008 and an accompanying Action Plan were adopted. The strategy and action plan provide a comprehensive framework for combating corruption and focuses extensively on fighting high level corruption. [228]

In March 2006 constitutional amendments were adopted making members of Parliament liable for all types of crimes and allowing for lifting the immunity if a Member of Parliament gives his consent in writing for the court case to be initiated. The Prosecutor General retains his monopoly to request the lifting of immunity of Member of Parliaments. Since February 2006 ten requests for lifting the immunity of Members of Parliament were tabled. Five Members of Parliament have voluntarily abstained from their immunity and the immunity of a sixth one was lifted by vote of the Parliament, thus allowing the court to formally pursue allegations of corruption. In March 2006 one, and in April 2006 eight other requests to lift the immunity were tabled by the Prosecutor General. Five of the individuals concerned have in the meantime given their written consent for lifting their immunity.

At the end of March 2006 a specialised department was established at the General Prosecutor’s Office with as main task to lead and supervise the pre-trial procedure in cases related to organised crime and corruption. 35 indictments were filed between 1999 and end 2005 against high-level politicians. [229]

The Commission for the Prevention and Counteracting of Corruption needs to increase its capacity if it is to perform its role effectively. [230]

However, certain outstanding issues remain to be addressed. Overall the administrative capacity and, more specifically, the coordination capacity of the Commission on Preventing and Counteracting Corruption, now headed by the Minister of Interior and placed in the Council of Ministers, needs to be further enhanced. So far, the track record of measures put in place to fight against high level corruption remains poor and the implementation of the new strategy and action plan needs therefore to be monitored closely.[231]

In January 2006, a Council to improve coordination between the anti-corruption committees of the National Assembly, the Council of Ministers and the Supreme Judicial Council was established. The Ministry of Health has taken additional measures to monitor and control health care institutions with regard to the risk of petty corruption. An ethics committee was established in the Parliament. [232]

Bulgaria has taken a number of measures to fight corruption. A code of ethics was adopted for the executive branch. An anti-corruption strategy for 2006-2008 was adopted. Constitutional amendments have reduced the scope of immunity of Members of Parliament. The prosecutor general presented requests for lifting the immunity of ten Members of Parliament. Five voluntarily abstained from their immunity and the immunity was lifted for a sixth one by a vote in Parliament; the other cases are still being examined. This allowed investigations into high-level corruption cases to be launched.[233]

As regards the fight against fraud and corruption, a new anti-corruption strategy covering the period 2006-08 was adopted. It was underpinned by an Action Plan. They can provide a comprehensive framework for combating corruption if fully implemented. However, the implementation of the strategy is not linked to a performance management system, with concrete and measurable targets. The Secretariat of the Commission on Prevention and Counteracting Corruption still has an insufficient administrative capacity. The role of this Commission is essential, as it is the institution which encompasses knowledge about all key anti-corruption measures.[234]

The report focuses primarily on the areas highlighted in the conclusion of the May 2006 report as needing immediate action or further efforts. For Bulgaria, these are the justice system, the fight against corruption, police cooperation and the fight against organised crime, money-laundering, integrated administrative control system for agriculture (IACS), transmissible spongiform encephalopathies (TSE), and financial control.[235]

Thirdly, the corresponding disbursement of funds for these programme or programmes can be interrupted, suspended or cancelled if, on the basis of Commission findings, the Commission suspects or detects cases of irregularities or fraud including corrupt practices. [236]

Based on the findings of this report, the Commission will take remedial measures, where necessary, to ensure the functioning of EU policies. This concerns cases in the areas of food safety, air safety, EU agricultural funds and the judiciary and fight against corruption, as described below. In case other shortcomings are identified before or after accession, appropriate measures will equally be taken to ensure the proper functioning of EU policies.[237]

Based on the findings of this report, the benchmarks to be addressed are as follows: … Conduct and report on professional, non-partisan investigations into allegations of high-level corruption.[238]

There continues to be a more pro-active attitude of the Prosecutor General in terms of requests for lifting immunity of members of Parliament. Since May 2006, immunities from two Members of Parliament were lifted. [239]

However, certain concerns persist. The secretariat to the Anti-corruption Commission is not yet fully operational. Coordination of the anti-corruption strategy remains incomplete and the bodies involved are too dispersed. Arrangements for encouraging whistle blowing are still inadequate. [240]

2004

In general, Romanian anti-corruption legislation is well developed and is broadly in line with relevant EU acquis.[241]

The priority for the Romanian government must be to ensure the rigorous enforcement of existing legislation. Measures contained in the National Corruption Strategy and associated Action Plan have so far had a limited impact. Despite the suspensions from party duties of a number of high-profile regional and local politicians, none of these cases has yet led to criminal sanctions during the reporting period.

The April Emergency Ordinance also increased the staffing levels of the National Anti- Corruption Prosecution Office (PNA) with the number of positions for prosecutors up from 98 to 130. At the same time the Emergency Ordinance lowered the financial threshold for cases that the central PNA structure can investigate. This may lead to an increased workload and a shift of PNA activity towards petty corruption. The number of convictions stemming from PNA investigations remains rather modest. Of the 2 300 cases registered with the PNA during the period September 2003 to July 2004, competence was declined in 348 cases, 867 are still being investigated, while in 925 cases no criminal charges were brought and in 160 cases prosecutions were launched in the courts. Since becoming operational PNA investigations have led to 86 prison sentences, though few of these could be regarded as being for high-level corruption. The PNA should ensure that it remains focussed on its core mandate of investigating high-level corruption instead of processing a large number of petty corruption cases. The PNA’s obligation to report to Parliament was removed in May 2004 following repeated claims by the head of PNA that this would safeguard its political independence. This move, however, limits transparency, the public accountability of the PNA and parliamentary oversight.

Other agencies also have some degree of competence for investigating corruption but inter-agency co-operation is generally weak. This is detrimental to the effectiveness of the law enforcement process and reduces transparency in the handling of corruption cases. [242]

The GRECO Plenary concluded that Romania had satisfactorily implemented almost all of its recommendations from the March 2002 First Round Evaluation Report. Among the positive developments described by the Compliance Report were increases in salaries for police officers and certain prosecutors as well as the elaboration of a code of conduct for customs officials. The recommendation on removing of former ministers’ immunity from criminal prosecution had, however, not yet been addressed. The Romanian authorities are committed under the July 2004 IMF stand-by agreement to remove the immunity of former ministers by January 2005. GRECO still needs to assess Romania’s capacity to implement the anticorruption laws in practice. [243]

Romania’s anticorruption legislation is generally well developed, but its ability to curb corruption will depend on the effective implementation of the law. In particular, additional efforts are required to ensure the independence, effectiveness and accountability of the National Anti-Corruption Prosecution Office. It should concentrate its resources on investigating high-level corruption. [244]

On issues such as border control, visas, migration, asylum, drug trafficking and money laundering, combating organized crime, the fight against terrorism, fraud and corruption, police and judicial co-operation, customs co-operation, data protection and the mutual recognition of court judgements, as well as human rights legal instruments, Member States need to be equipped to ensure they achieve adequate and acceptable standards of implementation.[245]

In the fight against fraud and corruption significant changes to the legal and institutional framework were contained in an April 2004 Emergency Ordinance.[246]

A new Criminal Code was adopted in June 2004 that will introduce a general notion of liability and sanctions for legal persons once it enters into force in July 2005.[247]

In the fight against fraud and corruption, efforts have been focused on legislative measures and sanctions. The main challenges do not, however, stem from an inadequate legal framework and efforts should now be focused on ensuring effective implementation. Institutions within the criminal justice system remain affected by corruption. Integrity tests and disciplinary sanctions are often preferred over criminal trials when dealing with corrupt practices but such approaches do not serve as the most effective deterrent nor increase public confidence in these institutions. [248]

While the National Anti-Corruption Prosecution Office has achieved some success in cases of petty corruption, it still has to demonstrate its ability fully to tackle politically-sensitive cases of high-level corruption in an effective way.[249]

Implementation capacity should also be significantly strengthened, in particular in the fight against corruption, judicial co-operation, fighting various types of organised crime, and border management.[250]

As regards the fight against corruption, implementation capacity should also be significantly strengthened and the existing legislation should be rigorously enforced. Romania should implement its current plans to fully address the above issues of concern and in particular increase its administrative capacity in the relevant institutions, implement an effective reform of the judicial system, recruits and train the necessary staff and take measures that have a significant impact on corruption.[251]

In particular, additional efforts are required to ensure the independence, effectiveness and accountability of the National Anti-Corruption Prosecution Office. It should concentrate its resources on investigating high-level corruption.[252]

As regards the fight against corruption, implementation capacity should also be significantly strengthened and the existing legislation should be rigorously enforced. Romania should implement its current plans to fully address the above issues of concern and in particular increase its administrative capacity in the relevant institutions, implement an effective reform of the judicial system, recruits and train the necessary staff and take measures that have a significant impact on corruption. [253]

With regard to the political criteria, Romania has launched major reforms in the field of public administration, the fight against corruption and the judiciary with the aim of reinforcing democracy and the rule of law.[254]

GRECO also welcomed the establishment of the Prosecution Anti-Corruption Unit and the introduction of emergency telephone lines.[255]

GRECO noted that “explicit and detailed” programmes are being developed in 2004 by the National Crime Institute (NCI) as part of an anti-corruption campaign, to meet the objectives of the recommendation. [256]

GRECO recommended to maintain and strengthen the prosecution service’s specialised unit for fighting organised crime and corruption, by assigning it the necessary extra financial and human resources, especially in terms of specialised staff seconded from other public bodies whose secondment shall be extended in order to ensure more stability. This strengthening of the prosecution service’s specialised unit should take place in those parts of the country where, due to the number of cases pending and reasonable predictions, the number of prosecutors is already inadequate.[257]

Emergency Government Decree No. 43/2002 of 11 April 2002 established a Prosecution Service National Anti-Corruption Unit as an autonomous body with legal personality and its own budget, independent of the courts and the public prosecutor’s offices, and in its relations with other public authorities, to deal with large and medium-scale corruption offences. The Anti- Corruption Unit comprises a central office in Bucharest and 15 regional offices in major urban centres with courts of appeal. It is staffed by specialist prosecutors, a detachment of police officers and specialists from various fields, appointed for a fixed period, who therefore reinforce the specialist skills of the Unit itself. [258]

GRECO took note of the information supplied by the Romanian authorities and welcomed the progress made. It noted that the Anti-Corruption Unit now only deals with corruption offences whereas the previous specialist prosecution unit also covered cases of organised crime. [259]

2005

However, a number of shortcomings still exist: significant efforts are needed to pursue the reform of public administration, effectively implement the reform of the justice system and ensure effective enforcement of the fight against corruption, including high level corruption. [260]

The Report identifies three stages of preparations for accession: Finally, a number of areas of serious concern requiring immediate action from Romania so that it may reap the benefit from EU accession but also in order to preserve the balance of the Union. These areas include the structures and mechanisms for participation in European structural funds. They also include the control of industrial pollution, the fight against corruption and the need to ensure a high level of food safety, in the interest of both citizens of current Member States and Romania. The Romanian authorities are strongly encouraged to spare no efforts to remedy the existing gaps without further delay. [261]

However, the following areas were identified in the conclusions of the 2004 Report as requiring further improvements: public administration reform (all aspects, in particular local and regional administration, civil service reform, decentralisation, policy coordination, the parliamentary process, freedom of information, and transparency); justice reform (including management of court cases and quality of judgements); anti-corruption measures; trafficking in human beings; ill-treatment in custody and prison conditions; freedom of expression; child protection; property restitution; disabled and mentally ill people; protection of minorities and integration of the Roma minority.[262]

The General Prosecutors and the General Prosecutor of the National Anti-Corruption Prosecution Office (PNA) will become personally responsible for the results of their institutions, and after the Superior Council has issued an advisory opinion the Minister of Justice can dismiss either of them should their performance as measured against clear and objective criteria become unsatisfactory. This provision was subsequently applied to the PNA senior management as well as parts of the General Prosecutor’s Office and will also cover the new National Anti-Corruption Directorate.[263]

In March and April 2005 the Director and all three Deputy Directors of the Directorate-General for Protection and Anti-Corruption (DGPA) were dismissed following the discovery of activities incompatible with the institution’s legal base. A new Director was appointed in April 2005 and there is now considerably more openness and transparency about the DGPA. There are no new reports of DGPA acting outside the prison system, where it has a legal mandate to ensure public safety.[264]

Nevertheless, there has been an increase in the political will to tackle corruption and several steps were taken that could have a positive impact if implemented fully. The new Government declared the fight against corruption would be one of its highest priorities together with the preparations for EU accession, and even described corruption as a threat to national security. In January 2005 an international non-governmental organization was contracted to audit the results of the old National Anti-Corruption Strategy 2001-2004.

This report was published in March and its recommendations were reflected in the new Strategy and Action Plan 2005-2007. These new documents are clear, well structured and operationally focused with deadlines, benchmarks, guaranteed budgetary resources and clear institutional responsibilities for the various activities. The Strategy and Action Plan proposes new legislation and administrative actions to enhance the capacity of the responsible authorities and to clarify the existing legal framework. This would make a positive contribution to overall anti-corruption policy if implemented fully. In April 2005 a high-level inter-Ministerial Council was established to monitor the implementation of the strategy.[265]

Nevertheless, it is widely acknowledged that Romania’s legislation already broadly complies with the relevant EU acquis and that what is urgently required is to implement the existing legislation more rigorously rather than proposing new laws. [266]

In March 2005 the competences of the National Anti-Corruption Prosecution Office (PNA) were redefined so as to restrict the range of individuals that can be investigated and raise the financial threshold. In May the Constitutional Court issued a majority ruling that only the General Prosecutor can investigate Members of Parliament. As a result the 8 PNA files dealing with Senators and Deputies were passed to the General Prosecutor’s Office. The PNA received further staff increases (28 prosecutors, 35 judiciary police officers, 6 experts and 24 support staff) and its equipment and training programme were also improved. [267]

Additional efforts are also required to address the problem of weak inter-institutional co-operation in fighting corruption and the proliferation of structures with overlapping competences, which remains a major obstacle to effective and timely investigations.[268]

Weaknesses in enforcing the current legislation are partly caused by a passive attitude on the part of prosecutors (i.e. a reluctance to conduct serious and thorough investigations) even when there are strong suspicions of corruption, in the frequency with which competence for cases is declined when the suspects are high-level figures, and in the lack of experience and training of those prosecuting complex financial cases.

In August 2005 the Head of the PNA resigned and the rest of the PNA senior management team were either dismissed, took early retirement or resigned. A new Head was selected by the Minister of Justice and a hearing of the Superior Council of the Magistracy issued a favourable advisory opinion. In September 2005 the decision was taken to rename the National Anti-Corruption Prosecution Office the National Anti-Corruption Department (DNA) and for it to become a department in the General Prosecutor’s Office attached to the High Court. The DNA will be independent in terms of its operations, human resources and budget and will resume responsibility for the investigation of corruption cases involving Members of Parliament. The competences of DNA have been narrowed to only the very highest corruption cases where the bride is over EUR 10 000 or the material damage exceeds EUR 200 000.[269]

As DNA is now part of the General Prosecutor’s Office, which is the leading agency for fight organised crime, it is hoped that corruption cases linked to organised crime will be investigated more effectively. It is too early to assess the impact that these personnel and organisational changes will have on Romania’s ability to deliver a credible track record in fighting corruption and in particular high-level corruption.

While the new DNA is the leading institution in investigating and prosecuting corruption cases, many other institutions have some form of responsibilities in this area. [270]

In April 2005 Romania abolished the criminal immunity of former government ministers, public notaries and bailiffs as recommended in the July 2004 First Round Compliance Report of GRECO. [271]

On issues such as border control, visas, migration, asylum, drug trafficking and money laundering, combating organised crime, the fight against terrorism, fraud and corruption, police and judicial co-operation, customs co operation, data protection and the mutual recognition of court judgements, as well as human rights legal instruments, Member States need to be equipped to ensure they achieve adequate and acceptable standards of implementation.[272]

In the fight against fraud and corruption, the Directorate General for Anti-Corruption in the Ministry of Administration and Interior began operating in September 2005 and recruitment of staff in its territorial branches is ongoing. It reports exclusively and directly to the Minister.[273]

Generally the focus of the state’s fight against corruption is still on adopting new legislation and changing the institutional landscape. The main challenges do not, however, stem from an inadequate legal framework. Serious concerns remain about the effective implementation of the existing laws in the fight against corruption, and immediate action is needed to increase Romania’s capacity to fight it effectively and to efficiently prosecute significant high-level corruption cases. Institutions within the criminal justice system remain affected by corruption. Integrity tests and disciplinary sanctions are still preferred over criminal trials in such cases, and these do not always serve as the most effective deterrents nor increase public confidence in these institutions. [274]

While the old National Anti-Corruption Prosecution Office achieved some success in dealing with cases of corruption, mainly of petty corruption, it will still have to demonstrate its ability fully tackle politically-sensitive cases of high-level corruption in an effective way now that it has been relocated to the General Prosecutor’s Office and renamed the National Anti-Corruption Department. [275]

Serious concerns exist in relation to Romania’s preparation for implementing the acquis in the fields of Schengen and the EU external border as well as the fight against fraud and corruption. Immediate action is needed to clarify the funding sources to be used to meet the individual border management needs and to increase Romania’s capacity to fight corruption. Existing anti-corruption legislation must be enforced rigorously and corruption in law enforcement agencies must be tackled. [276]

An administrative cooperation agreement was signed with OLAF and became operational in October 2004; within Romania, the anti-fraud co-ordination service has concluded Protocols with the National Anti-Corruption Prosecutor’s Office and with the Financial Guard.[277]

Finally, urgent action is required in the field of justice and home affairs, in particular as regards preparations for applying the Schengen acquis and for the management of the future EU external border, as well as the fight against fraud and corruption, if Romania is to be ready for membership by the envisaged date.[278]

Consequently, the GET recommends to strengthen the capacities of prosecution services and courts to deal efficiently with corruption cases within a reasonable time, in particular through specialisation and training.[279]

The new National Anti-Corruption Strategy II (NACS II) (2005-2007), which was adopted on 30 March 2005 (after the GET’s visit), emphasises expediting the implementation of existing legislation and specifies 10 priority objectives, including increased transparency and integrity on the part of the public administration. It is accompanied by an Action Plan setting out concrete measures to implement the said 10 objectives.[280]

The Ministry of Justice and the National Supervisory Authority had been monitoring the implementation of NACS I since October 2003. Governmental Decision (GD) No. 233 of March 2005 set up the Co- ordinating Council for the implementation of NACS II. [281]

At the time of the visit, the GET noted that there was insufficient co-ordination between the anti-corruption strategies and action plans and the revised Strategy for Administrative Reform, and also inadequate co- operation among the different bodies responsible for formulating and implementing these instruments. The GET observes that the Romanian authorities should ensure improved co- ordination between the different anti-corruption strategies and action plans and the Strategy for Administrative Reform, and improve co-operation in monitoring these instruments[282]

The GET considers that although there have been some criminal convictions, particularly in cases of corruption dealt with by the NAPO, there has been insufficient recourse to administrative means of preventing, detecting and suppressing corruption and breaches of professional ethics, particularly in the field of public contracts, subsidies, refunding of excise and acquisitions, and the existing administrative means do not facilitate the effective and proactive detection and suppression of offences of corruption.[283]

A series of corresponding measures have already emerged, such as the adoption of a new anti- corruption strategy and an action plan to implement it, and the scheduled setting up of a National Integrity Agency and a body responsible for verifying declarations of assets and interests and incompatibilities.[284]

2006

The aim of this report is to provide an assessment of certain areas that were considered to need further improvement in the October monitoring report. Nine such areas were identified. These concern the public administration reform, effective implementation of the justice reform, the fight against corruption, the fight against trafficking in human beings, ill-treatment in custody and prison conditions, children protection, the disabled and mental healthcare system, effective restitution of property, and the protection and integration of the minorities.[285]

In January 2006, the Directorate General for Protection and Anticorruption, the Ministry of Justice’s part-militarised security service, was abolished.[286]

Since the October 2005 report, there has been progress in the following areas. The criminal immunity for bailiffs was eliminated in December 2005. In the same month, the law on granting non-reimbursable contract financing from public funds was adopted. Amendments to the Criminal Code including provisions on the criminal liability of legal persons were presented by the Government. In March 2006, the Parliament approved the law transforming the lead agency in the fight against corruption, the National Anti-Corruption Prosecutor’s Office (PNA), into the National Anti-Corruption Directorate (DNA) and allowing it to investigate all cases of high-level corruption including allegations involving Members of Parliament.[287]

Since October 2005, DNA stopped working on petty corruption cases and has focused on medium and high-level corruption. Since taking office, the new DNA Head has evaluated the performance of DNA prosecutors and judicial police officers and subsequently 30 people left the institution. 15 replacement prosecutors have been recruited and there are 32 current vacancies out of 345 allocated staff positions. DNA’s budget for 2006 has increased by 14%.[288]

During this period, the courts passed initial convictions against 77 individuals based on earlier PNA investigations and pronounced a further 102 final convictions. There has also been a clear qualitative improvement in DNA’s investigation, notably by reopening investigations closed under the previous management team for unclear reasons. DNA has the staff, financial resources and training to conduct effective investigations into high-level corruption. It has also concluded co-operation protocols with a number of agencies with a role in fighting corruption. In October 2005, the Directorate General for Anti-Corruption (DGA) in the Ministry of Administration and Interior became operational and now has exclusive competence to plan and conduct integrity tests on the Ministry’s staff. Since then, DGA has conducted 754 investigations on 1859 persons and 74 into Ministry staff were transferred to DNA for investigation, a 185% increase compared to last year. DGA regional offices are being established and where required, they work closely with DNA regional offices. However, certain outstanding issues remain to be addressed.

On the legislative side, there have been delays in the implementation of 3 of the 47 actions foreseen in the current strategy and action plan, pending adoption by Parliament of some important laws.[289]

There have been attempts in Senate to change the nomination and revocation procedures for high level prosecutors. This would have undermined the accountability of the system and decreased the operational capacity of the DNA. It remains to be ensured that all judges have sufficient specialist knowledge to hear and judge complex economic and financial cases based on DNA’s recent investigations into fraud in privatisations and public procurement. There is still a need for further indictments, prosecutions, trials, convictions and dissuasive sentences. Petty corruption remains a concern in sectors such as health and education. [290]

The reforms led by the Ministry of Justice and the DNA, now need to be followed by sustained efforts of all other executive agencies, of the legislative branch, and of the justice system as a whole so that the progress made becomes irreversible. [291]

The reforms led by the Ministry of Justice and the National Anti-Corruption Directorate (DNA) need to be followed by sustained efforts of all other state institutions so that the progress made becomes irreversible.[292]

As such the anti-corruption laws are being implemented more rigorously. Efforts to fight corruption and improper behaviour within law enforcement agencies have been intensified. The Directorate-General for Anti-Corruption (DGA) is now fully operational at central level while recruitment of staff in local branches is ongoing. During 2005 around 770 files dealing with suspected corruption in the police were passed to the National Anti-Corruption Directorate (DNA), a 133% increase on 2004, and more than 7150 to other prosecutors. Thus, in the fight against high-level corruption, the newly formed DNA has made more progress during the first seven months of its existence than had been made in the years before.[293]

Follow-up to allegations of high-level corruption needs to be carried out without obstruction so that no one is perceived to be above the law. Further indictments, criminal trials, convictions and dissuasive sentences need to be pursued in a sustainable manner. Romania has still not yet fully complied with the second Protocol to the 1995 Convention on the Protection of the Community’s Financial Interests and introduced the liability of legal persons. Overall, implementation of the existing laws in the fight against corruption needs to become more efficient and systematic. There has been opposition in the Parliament against further legislative action against corruption and corruption still remains a widespread problem affecting many aspects of society. Increased, concerted efforts by all law enforcement agencies and members of the justice system are needed urgently in this area.[294]

Significant progress has been made in the preparations for the Schengen acquis and management of the future EU external border, as well as in the fight against fraud and corruption. These areas still require increased efforts and swift action now in order to resolve the shortcomings in time for accession.[295]

Progress has also been made in a number of areas, which no longer give rise to serious concern but still require increased efforts to complete preparations: protection of intellectual property rights; veterinary border inspection posts and animal identification and registration, animal diseases control measures, and veterinary aspects of public health; institutional and financial management structures for regional policy regional policy; industrial pollution prevention and control; Schengen preparations and management of the future EU external borders; fight against fraud and corruption.[296]

The report focuses primarily on the areas highlighted in the conclusion of the May 2006 report as needing immediate action or further efforts. For Romania, these are the justice system and the fight against corruption and IACS, Paying Agencies, TSE and interconnectivity of tax systems.[297]

The quantity and quality of non-partisan investigations by the National Anti-Corruption Directorate (DNA) into allegations of high-level corruption have continued to increase. However, there needs to be a clear political will to demonstrate the sustainability and irreversibility of the recent positive progress in fighting corruption. In the Parliament there has been some attempts to substantially reduce the effectiveness of such efforts.[298]

However, further progress is still needed in a number of areas, such as social policies and employment including public health, genetically modified organisms, motor insurance, capital requirements for credit institutions and investment firms, money laundering and the fight against fraud and corruption, financial management and control of future structural funds and animal diseases. [299]

Thirdly, the corresponding disbursement of funds for these programme or programmes can be interrupted, suspended or cancelled if, on the basis of Commission findings, the Commission suspects or detects cases of irregularities or fraud including corrupt practices.[300]

Based on the findings of this report, the Commission will take remedial measures, where necessary, to ensure the functioning of EU policies. This concerns cases in the areas of food safety, air safety, EU agricultural funds and the judiciary and fight against corruption, as described below. In case other shortcomings are identified before or after accession, appropriate measures will equally be taken to ensure the proper functioning of EU policies.[301]

The report shows that further progress is still necessary in the area of judicial reform and the fight against organised crime and corruption. The Commission will establish a mechanism to cooperate and verify progress in these areas after accession. This will be based on Articles 37 and 38 of the Act of Accession. Romania shall report regularly on progress in addressing specific benchmarks. The first report should be submitted by 31 March 2007. The Commission will provide internal and external expertise to cooperate and provide guidance in the reform process and to verify progress. The Commission will then report to the European Parliament and the Council by June on the progress made in addressing the benchmarks. The Commission’s reports will assess whether the benchmarks have been met, need to be adjusted and may request further reports on progress if necessary. The mechanism will continue until the benchmarks have been met. Should either country fail to address the benchmarks adequately, the Commission will apply the safeguard measures of the Accession Treaty. They lead to the suspension of the current Member States’ obligation to recognise those judgments and execute warrants issued by either country’s courts or prosecutors falling under the principle of mutual recognition.[302]

Based on the findings of this report, the benchmarks to be addressed are as follows: … Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption. [303]

In line with the findings of this report, the Commission, after consulting the Member States, will set up a mechanism for cooperation and verification of progress in the areas of judicial reform and the fight against corruption, money-laundering and organised crime. [304]

The implementation of the national Strategy and Action Plan for fighting corruption has continued. In June 2006 amendments to the Criminal Code were adopted introducing the criminal liability of legal persons. [305]

The quantity and quality of non-partisan investigations into allegations of high-level corruption have continued to increase. The National Anti-Corruption Directorate (DNA) launched investigations in three new cases of high-level corruption involving a former member of Parliament, leading figure from local government and senior civil servant. DNA indicted seven people for cases of high-level corruption, four of whom were politicians from the ruling coalition, two from the opposition and one high-profile business person. [306]

Since March 2006, DNA indicted a total of 199 suspects and the courts issued initial convictions against 87 defendants and 82 final convictions in cases initiated by DNA.[307]

The anti-corruption framework has become more effective as more DNA investigations are launched on the basis of information provided by public control bodies. In May DNA was allocated an additional 56 posts. [308]

However, certain concerns persist. There needs to be a clear political willingness of all political actors to demonstrate the sustainability and irreversibility of the recent positive progress in the fight against corruption. In the Parliament there have been some attempts to reduce the effectiveness of the proposed National Integrity Agency during the passage of the Draft Law through Parliament, which Romania committed to adopt in the national Strategy and Action Plan against corruption. In the Parliament there has also been an attempt to change the nomination procedure for both the General Prosecutor of Romania and the Head of the National Anti-Corruption Directorate, which would bring additional legal and institutional uncertainty to the anticorruption framework. The reforms led by the Ministry of Justice and DNA need to be complemented by sustained efforts from all other executive agencies, the legislature and the judiciary. Co-operation between the two specialised prosecution services needs to be further improved in cases of high-level corruption and organised crime. It is still not ensured that all judges have sufficient specialist knowledge to hear and judge complex cases of financial and economic crime. So far, there have not been any final convictions in high-level corruption cases stemming from the new investigations launched by DNA in September 2005. Corruption remains a general concern. Certain sectors such as health care, education and local government are particularly vulnerable. [309]

All political actors need to demonstrate their commitment to a serious and effective fight against corruption and ensure that no one is perceived to be above the law. Once an effective Integrity Agency has been established and co-operation between prosecutors working on corruption and organised crime cases has been improved there is a need to ensure stability in the legal and institutional anti-corruption framework. [310]

In the area of the fight against fraud and corruption, there have been seven further indictments for high-level corruption.[311]

Criminal trials, convictions and dissuasive sentences for those found guilty are needed to ensure the irreversibility of the fight against corruption. [312]