Conflict of interests

2005

Legislative progress was achieved with the adoption of the Laws on Financing of Political Parties in both republics as well as the Laws on the prevention of conflicts of interest, whereas codes of conduct for public servants are stalled. This previous legal vacuum has contributed to a very slow reaction to serious allegations against top government officials and ministers. Even the existing institutions in this field do not enjoy the necessary support from government. As this matter goes to the core of the transition from a totalitarian regime to a functioning democracy based on the rule of law, it is indispensable to achieve rapid improvements.[1]

The Law on Conflict of Interests has been implemented with difficulty and contains problematic provisions allowing members of parliament to be members of boards of public companies. This legislation needs to be reviewed in line with international standards. [2]

In Montenegro, on 26 January 2005, the Constitutional Court decided on the unconstitutionality of Article 15 of the Law on Conflict of Interest.  The controversial Law on Conflict of Interest, which is being re-drafted, should be submitted to the Council of Europe for expert opinion.  A positive development is the creation of a Commission for the identification of the conflict of interest on 21 December 2004.[3]

Amendments to the Law on Prevention of Money-Laundering and the Law on Conflict of Interest were adopted on 16 March 2005. Although the Law on Conflict of Interest was amended following a recent decision of the Constitutional Court concerning one of its provisions, concerns remain on the possibility of MPs to be members of companies’ managing boards. As concerns the Commission established to regulate conflict of interest, it has no monitoring or reporting powers.[4]

At the beginning of August, a new draft Law on Conflict of Interest drafted by an ad hoc parliamentary Committee and experts from the CoE was presented to the CoE experts’ appraisal and is now before the Parliament. It is hoped that conditions for a wider public participation and discussion inter alia with the civil society be facilitated.[5]

As concerns the new draft Law on Conflict of Interest, the present version incorporates recommendations made by the Council of Europe and the Organization for Economic Co-operation and Development/Sigma, while adequately complying with international norms and reflecting the local political and administrative context.[6]

2006

The lack of an appropriate legal framework to deal with the conflict of interests of officials has a crucial impact. The Montenegrin Parliament failed to amend the Law on Conflict of Interest. The existing law contains problematic provisions and needs to be substantially reviewed.[7]

The legal framework to prevent conflicts of interest in Montenegro is provided for by the Law on Conflicts of Interest, adopted in 2004, with regard to public officials and “persons connected with them”, and the Law on Civil Servants and State Employees with regard to civil servants.[8]

A number of new pieces of legislation were drafted and enacted by Parliament, in particular the Law on Conflicts of Interest, the Law on the National Auditing Institution, the Law on Public Procurement, the Law on Political Party Financing and the Criminal Code. [9]

An analysis of the Montenegrin legislation related to the prevention of conflicts of interest indicates that the system suffers from several shortcomings. Firstly, the GET noted that two different laws are applicable in this field: the Law on Conflicts of Interest with regard to public officials and the Law on Civil Servants with regard to civil servants (as for the definition of public officials and civil servants see footnotes 11 and 13). It is clear that conflicts of interest are regulated in much more detail for public officials than for civil servants: in fact, Article 49 of the Law on Civil Servants only provides for a generic enumeration of basic activities that could undermine civil servants’ impartiality when they exercise their public functions. Secondly, the Law does not impose any restrictions on the president and other members of the Commission with regard to their membership of political parties or of elective bodies, such as municipal assemblies. Thirdly, the Law allows the highest-ranking politicians, members of the government and other high-ranking officials to serve on the board of companies with predominant state or municipal capital and to simultaneously negotiate the privatisation of state property on behalf of the state. In the GET’s view, this situation can give rise to serious conflicts of interest. In the light of the aforesaid, the GET recommends to expand the application of the Law on Conflicts of Interest to include all public officials who perform public administration functions, including public officials as referred to in Article 2, paragraph 2, of the Law on Civil Servants. The GET also recommends that legislative or other measures be taken to ensure that all public officials and civil servants are prohibited from acquiring inappropriate benefits for themselves or their relatives through holding a position as member of the board in State owned companies. Finally, the GET recommends to seek ways of reducing the potential of political influence in the decisions taken by the Commission for the determination of conflicts of interest.[10]

The GET recommends to introduce clear rules/guidelines for situations where public officials move to the private sector (“pantouflage”) in order to avoid situations of conflicts of interest.[11]

As already detailed in the descriptive part of this report (paragraph 78), according to the Law on Conflicts of Interest, public officials are allowed to keep gifts not exceeding the amount of 50 Euros. The GET considers this minimum value to be high, especially if compared to the current average salary in Montenegro (200 Euros). Therefore, the GET recommends to lower the value of any gifts that may be accepted by public officials to levels that clearly do not raise concerns regarding bribes or other forms of undue advantage.[12]

2007

The current Law on conflict of interest needs to be substantially amended.[13]

The requirements in the area contained in Opinion No. 261 cover the adoption of anti-corruption legislation, the amendment of the law on the conflict of interests, and the adoption of a law on political parties finance.[14]

Legislative progress was achieved with the adoption of the Laws on Financing of Political Parties in both republics as well as the Laws on the prevention of conflicts of interest, whereas codes of conduct for public servants are stalled. This previous legal vacuum has contributed to a very slow reaction to serious allegations against top government officials and ministers. Even the existing institutions in this field do not enjoy the necessary support from government. As this matter goes to the core of the transition from a totalitarian regime to a functioning democracy based on the rule of law, it is indispensable to achieve rapid improvements.[15]

Conflicts of interest remain a concern, as there have been delays in implementing the new legislation and the results so far have been limited.[16]

The law on conflicts of interest has been adopted but its implementation has brought so far limited results.[17]

In Serbia, following the adoption and entry into force of a Law on conflict of interest in April 2004, the constitution – with several months delay – of the Republic Board for resolving conflict of interest on 18 January 2005 is to be welcomed.  A number of recommendations for changes were made on the said Law by a Council of Europe expert in December 2004. In that respect, concrete measures to amend and implement the Law, as well as to provide the Board with all resources needed (financial, material, human), are expected from the authorities. [18]

The implementation of the laws on conflict of interests and on the financing of political parties continues to face difficulties, notably concerning the inefficient mechanisms for sanctions. Around 40% of public officials failed to report on their assets and income, and a high number of political parties failed to submit their financial reports to the parliamentary committee for finances, within the set deadlines. Moreover, the issue of board membership in public companies for the members of Parliament has not been resolved.[19]

In the light of the aforesaid, the GET recommends to expand the application of the Law on the Prevention of Conflicts of Interest in the Discharge of Public Office so that it would include all public officials who perform public administration functions without excluding those indicated in Article 2 paragraphs 2 and 3 of the Law (i.e. judges and public prosecutors and “officials appointed to organs of institutions and other organisations whose founder is the Republic of Serbia, the autonomous province, the municipalities, the towns and the City of Belgrade”).[20]

The GET recommends to introduce clear rules/guidelines for situations where public officials move to the private sector (“pantouflage”) in order to avoid situations of conflicts of interest.[21]

Legislation on conflict of interest was generally observed by officials reporting on their assets, but no enforcement procedures are in place and no adequate follow-up is foreseen by the law. [22]

GRECO hopes that an unequivocal framework regulating conflicts of interest of all public officials performing public administration functions is promptly established and looks forward to receiving additional information in this respect.[23]

GRECO takes note of the measures listed by the Serbian authorities. It is aware that the rules contained in the Law on the Prevention of Conflicts of Interest were already in place at the time of adoption of the Joint First and Second Round Evaluation Report (paragraph 81); they largely focus on standards and procedures for the outside employment of officials during public service. Accordingly, GRECO welcomes the ongoing legal reform process reported to further regulate this issue, notably, through the introduction of additional post-service restrictions, in the draft Law on the Anti-corruption Agency. It encourages the authorities to proceed swiftly with the adoption of the draft.[24]

2005

While the State-level Law on Conflict of Interests has been successfully implemented, Entity legislation makes provision for different enforcement bodies which may jeopardise uniform handling of conflict of interest cases throughout the country. [25]

The adoption of the law on the conflict of interest has been a positive step. Its consistent implementation needs to be ensured. [26]

The implementation of the State-level Law on Conflict of Interests in Institutions of Government of BiH has been successful but Entity legislation provides for different enforcement bodies potentially jeopardising the uniform handling of conflict of interest cases achieved throughout the country under the State-level law.[27]

2006

The fight against corruption has also been reinforced through the Law on Conflict of Interests and the laws on public procurement and VAT. Sustained efforts are needed to ensure the correct implementation of this legislation. [28]

In the light of the foregoing considerations, the GET recommends to (i) adopt a Code of Conduct for civil servants at State level; (ii) expand the Code of Ethics of the Federation of Bosnia and Herzegovina to include explicit references to ethical issues and risks of corruption; and (iii) develop regular training at all levels of government on public ethics and risks of corruption, including the resolving of practical, specific cases (e.g. reactions to gifts, conflicts of interest, etc.).[29]

The GET is of the opinion that the current system does not meet its intended purpose to deal with conflicts of interest in a credible manner. Consequently, the GET recommends to introduce an effective system for reviewing financial declarations (including random verifications) by the respective Civil Service Agency at each level of government and the Election Commission, and to allow that such declarations be used in a preventive manner by providing individual counselling on the prevention of conflicts of interest.[30]

The GET noted that the existing legislation does not contain any provisions establishing a system of regular/periodic rotation of staff most exposed to the risks of corruption. [31]

2007

There was some progress on enforcing the law on conflict of interest, with the Central Election Commission sanctioning a number of elected officials and preventing them from running for office.[32]

2007

The current law on asset declarations does not allow the KAA to publish these declarations or to make inquiries about the origin of the wealth declared. The correctness of the declarations is not checked with other relevant bodies. [34]

2005

Some efforts have been made to fight corruption: work has continued in international fora, new conflict of interest legislation has been adopted, more public officials have been prosecuted for corruption, and strong action has been taken against police corruption.[35]

Some of the crucial issues identified by the Albanian authorities requiring further work were the following: further regulation of the incompatibility; harmonisation and standardisation of the conflict of interests’ definition and concept; detailing the procedures (identification, declaration, registration); expanding the scope of conflicts of interests to all public officials and institutions; defining the responsible authority of the conflict of interests; unification and standardisation of ethics issues in general, and promotion of awareness-raising on this very important issue. The GET was told that a draft law on these issues was under preparation.[36]

Neither at state nor at regional or local level any general system of rotation exists for positions vulnerable to corruption.[37]

The rules on conflicts of interest differ from one text to another and from one category of public officials to another; the rules on incompatibilities and accessory activities are not satisfactory and some groups are not covered. [38]

The GET noted however, with satisfaction, that the High Inspectorate for Declaration and Control of Assets (cf. paragraph 34) was meant to monitor that law once adopted. As the Inspectorate will also have other important functions, such as the prevention of conflicts of interest, and the assessment of new draft laws, it is advisable to confer to the Inspectorate the necessary means to perform its duties effectively and independently.[39]

The issue of conflict of interest has also been dealt with in greater detail, in particular through the preparation of specific legislation in this field.[40]

2006

The Law on Conflict of Interest has been amended to address practical problems resulting from the implementation of the existing law. The High Inspectorate for Disclosure and Verification of Assets has intensified its activity and officials of the inspectorate have now been authorised to investigate bank accounts of officials outside the country.[41]

2007

The High Inspectorate for Declaration and Audit of Assets (HIDAA) made progress on enforcing asset declaration obligations. Of 3500 persons who are under a legal obligation to declare their assets and private interests, only 87 have failed to do so.[42]

The law on conflicts of interest needs to be further clarified. A proposed change to the parliament’s rules of procedure to allow its members’ immunity to be lifted on a case-by-case basis has still not been adopted. The HIDAA lacks mechanisms to investigate declarations. [43]

The authorities stress that Law No 9131 of 8 September 2003 “on ethical rules in public administration” applies to all categories of public officials except for elected officials, members of the Council of Ministers and judges and that they consider these provisions sufficient, including those which prohibit the use of confidential information gained in the exercise of public functions for private purposes, after having left public service, as well as those which prohibit a former employee from representing any person or organisation in a conflict or trade relation with the public administration which is related to his/her previous position.[44]

2005

Amendments to the Act on Prevention of Conflict of Interest in the Exercise of Public Office and to the Act on Financing Presidential Electoral Campaigns, in both cases aimed at improving transparency, entered into force in July and August 2005 respectively.[45]

In July 2004, amendments to the Act on Prevention of Conflict of Interest in the Exercise of Public Office and to the Act on Financing Presidential Electoral Campaigns were adopted. [46]

There are neither specific statutes that prevent public officials from moving to the private sector nor statutes that prohibit them from misusing government information gained while a public official or misusing their former positions.[47]

Neither law contains clear guidance with regard to the obligation to recuse from matters where the interests, income or activities are not prohibited, but where there still remains an actual or apparent conflict with the private interests or activities of the individual (or spouse) and the individual’s public duties. The GET was aware that the criminal corruption provisions could potentially be used to reach conduct where the conflicts raise a question of abuse of office or a bribe, but was concerned that those to whom those provisions applied may not be aware that is the case.[48]

2006

The scope of the Law for the Prevention of Conflict of Interest should be widened to ensure proper sanctions can be applied. Also, authorities need to develop public written interpretative guidance of the current prohibitions for public officials in this respect.[49]

In February 2006, Parliament adopted the conclusions of its Investigative Commissions into two Members of Parliament, concluding in one case that the person concerned was in conflict of interest during his ministerial mandate. However, there has been no follow up to these conclusions. Investigative Commissions appear to be used partly as a political tool rather than a serious means to tackle conflicts of interest.[50]

2007

The concept of conflict of interest is little understood.[51]

The obligation to submit assets declarations was extended to all judges and to State Prosecutors and their deputies in January 2007. [52]

Other shortcomings in the legal framework remain to be addressed. Sanctions under the Law for the Prevention of Conflict of Interest need to be made more effective, and the supervisory role of the Commission for the Resolution of Conflict of Interest reinforced. There is no public written, interpretative guidance of the current prohibitions for public officials in this respect. As regards assets declarations, there is in practice often confusion over what exactly is to be declared and supervision is lacking.[53]

2005

Furthermore, a Law on Prevention of Corruption was adopted in 2002, which defines a number of measures and activities to prevent corruption and conflict of interests and under which the State Commission for the Prevention of Corruption was set up in the same year. [54]

The same Commission started its work by collecting reports on the assets of public office holders. In 2004 the obligation to submit an assets declaration was extended to civil servants in the state administration. The legislative programme provided for by the programme is being progressively implemented.[55]

Under this Law, a large number of officials and elected representatives are under an obligation to submit a declaration of assets to the State Commission when they are nominated or elected. The Law was amended in 2004 to extend this obligation to civil servants in the State administration. This obligation has been partly implemented and a few charges have been brought for failure to submit the declaration of assets. [56]

The Law on Prevention of Corruption is based on the principles of legality, trust, equality, publicity and responsibility. Moreover, this Law provides particular regulations to prevent corruption in various fields of interest, covering both elected representatives and civil servants. It deals with the prevention of conflicts of interest, reporting of offences and the exercise of discretionary powers.[57]

The Constitution and the Law on Prevention of Corruption provide the legal framework to prevent conflicts of interest of public officials; some additional rules for special categories of public officials have been established in other laws, e.g., Law on the Election of Deputies and the Law on Civil Servants as well as in sectorial codes of ethics, see below.[58]

This autonomous and independent body established by law is clearly an important factor for a continuous fight against corruption. The State Commission has both a preventive role and investigative powers, the latter with regard to conflicting interests of public officials.[59]

2006

According to the State Anti-Corruption Commission, almost all officials have submitted asset declarations. The Commission has brought charges against those who have not submitted these.[60]

While, according to the State Anti-Corruption Commission, almost all officials have submitted asset declarations, sentences delivered to officials failing to fulfill this obligation have been lenient. A fully effective checking of the property declarations would require strengthening the bodies involved. [61]

Tangible progress in reducing the discretionary rights of ministers and other officials has yet to be achieved. Incompatibility rules still lack clarity, and control and enforcement mechanisms are weak. Conflict of interest remains to be regulated and monitored. For instance, there is no clear policy as regards the employment of former members of the government. [62]

The discretionary powers of ministers and other officials in the administration have been reviewed.[63]

Misdemeanours procedures have been initiated against 30 Members of Parliament for not having submitted their declaration of assets in the delay foreseen by the Law on Prevention of Corruption. Relations between the State Anti-Corruption Commission and the Public Prosecutor have improved and are more constructive. [64]

2007

A law on conflict of interest was adopted.[65]

The amendments[66] reinforced the obligation on all appointed and elected officials to declare their assets, and made it obligatory for these to be published on the State Anti-Corruption Commission website.[67]

A number of misdemeanour procedures were brought against officials who failed to submit asset declarations following the elections in 2006 and a few court decisions have been issued. There were court decisions in a number of high profile cases, including those of a former Deputy Minister, a former Customs Director, judges, lawyers, notaries, and police officers. [68]

Although a large number of officials have declared their assets, the commission’s capacity to publish them is limited, checking remains weak and sanctions lenient. [69]

Furthermore, there has been limited follow-up to the review of discretionary powers of ministers and other officials in the administration.[70]

The amendments also strengthen the obligation of all appointed civil servants and elected deputies to declare their assets, and make publication of these declarations on the State Anti-Corruption Commission website obligatory.[71]

A law on conflict of interest was adopted which sets out measures and activities for establishing, preventing and sanctioning cases of conflict of interest when performing activities of public interest. The State Anti-Corruption Commission was given the responsibility of dealing with cases. [72]

The commission has continued to monitor the asset declarations of elected and appointed officials and has strengthened its cooperation with the Public Revenue Office. Misdemeanour procedures were brought against 86 current and former appointed and elected officials (including government ministers and MPs), directors of public companies and supervisory board members who failed to meet their legal obligations following the 2006 elections. 16 court decisions were issued. [73]

Limited follow-up has been given to the review of discretionary powers of ministers and other officials in the administration.[74]

2004

Amendments to the law on civil service adopted in November 2003 contain a definition of the situations related to conflicts of interest and disclosure for civil servants. [75]

2005

The Law on making public the property of persons occupying high State positions, which contains provisions for establishing a public register for declaring property, income and expenses of persons occupying high State positions in the Republic of Bulgaria, continued to be implemented. [76]

The measures to prevent conflicts of interest and incompatibilities are provided for in the LPO[77]. [78]

The GET noted that it is a well established practice in a number of countries to use periodic declarations of assets, income and liabilities by public officials as an effective tool for deterring corruption, as well as a means by which to promote public confidence in public officials and government decision-making. The GET noted in this respect that the LPO appears to provide a basis for an appropriate financial disclosure system and a conflicts of interest control mechanism, both of which are accompanied by sanctions in cases of non-compliance. The GET also welcomed measures taken by the Bulgarian authorities to promote awareness in the field of conflicts of interest by organising training.[79]

2006

In December 2005, the Council of Ministers adopted a Code of Ethics regulating the work of the members of government and other politically appointed officials of the executive.

According to this code, the officials concerned must declare and register their financial interests, they are prohibited from participating as partners in companies and are not allowed to work as freelancers, they are accountable for the management of the resources entrusted to them and they must take the necessary measures to prevent corrupt practices in the bodies for which they are responsible.[80]

Following amendments in April 2006 to the Law on publicity of the property owned by persons occupying high state positions, the National Audit Office will be obliged to publish annually a list of people who did not comply with the obligation to declare their property. The fines for non-compliance were increased.[81]

The implementation of the Law for Publicity of the Property of Persons Occupying High State Positions requires the National Audit Office to enhance its capacity to verify asset declarations. The recent amendments to the law require prior permission for publication of asset and income declarations in the media. [82]

The legislative framework for the fight against corruption has been improved with the adoption of amendments to the laws on political parties and on publicity of property owned by high level officials. All ministers have published their asset declarations on the internet.[83]

Based on the findings of this report, the benchmarks to be addressed are as follows: … Report on internal inspections of public institutions and on the publication of assets of high-level officials.[84]

As part of the programme for the implementation of the strategy for transparent governance and for preventing and counteracting corruption, amendments to the ‘law on the publication of the assets of persons occupying high public positions’, were adopted in August 2006. They will enter into force in January 2007. The law now authorises the National Audit Office with support of other public bodies to carry out inspections to confirm the accuracy of declarations submitted to the National Audit Office by persons occupying high public positions. Furthermore, the recent amendments widened the range of persons obliged to declare their assets. All ministers have published their asset declarations on the internet.[85]

2004

Significant changes to the framework of anti-corruption legislation were introduced in an April 2004 Emergency Ordinance that decreased the financial threshold for wealth declarations, decreased the value of gifts/hospitality that may be received by public officials and introduced stricter controls on share and property ownership for those covered by the legislation. [86]

There is however, still room for improvement to make it possible in practice to monitor declarations on conflict of interest, by aligning the conflict of interest legislation with EU best practices, introducing sanctions for incorrect or incomplete declarations of interests, addressing the transfer of assets to relatives and lowering the burden of proof before an investigation can be launched into whether assets were obtained illegally. [87]

Romania should also increase public awareness of the negative consequences of corruption and potential conflicts of interest.[88]

Detailed programmes are being developed in 2004 as part of an anti-corruption campaign. Act No. 115/1996 on the declaration and supervision of the assets of senior officials, judges, prosecutors, officials and managers, as amended by Act No. 161/2003, requires declarations of assets to be published on the Internet sites of Parliament and Government, ministries, other public institutions, or in the Official Gazette of Romania.[89]

2005

A number of measures designed to fight high-level corruption entered into force, including the removal of the de facto immunity of former Ministers in April 2005 and the adoption of new templates for wealth declarations in May 2005. These declarations will be accessible to the public, though an effective mechanism for overseeing this process remains to be established.[90]

Romania should also increase public awareness of the negative consequences of corruption and potential conflicts of interest. [91]

The question of conflicts of interest and incompatibilities is governed by Article 49 of Law No. 188/1999 as amended and expanded by Laws Nos. 161/2003, 7/2004 and 171/2004.[92]

The Government was also considering a draft Law on the creation of a National Integrity Agency responsible for investigating and supervising declarations of assets and interests, as well as the regulations governing incompatibilities. [93]

Many of the provisions on conflicts of interest, incompatibilities and ancillary activities in the civil service have not yet been harmonised. [94]

Nor is there any authority responsible for supervising legislation on conflicts of interest, despite the fact that a draft Government Decision still provides for the setting up of a National Integrity Agency with powers of supervision in the field of conflicts of interest and declarations of assets and interests. The GET finds the rules on conflicts of interest and incompatibilities and the supervision of such rules insufficient. [95]

Consequently, the GET recommends to extend the scope of the existing rules on conflicts of interest and incompatibilities and make them applicable to all public officials exercising an activity involving prerogatives of public authority, and to introduce an appropriate system for supervising the application of these rules, including in the field of abusive migration by public officials to the private sector. [96]

The GET noted during the visit that the system for supervising declarations of assets is not effective, in particular, because the investigatory commission is only seldom applied to, the level of evidence required to initiate that process is very high and because of the absence of a preliminary and independent administrative review of these declarations in order to identify actual or apparent violations of the law, unjustified fluctuations in the public officials’ financial situation, conflicts of interests, incompatibilities and prohibited gifts.. Lastly, there is also no appropriate system for verifying declarations of interest. Consequently, the GET recommends introducing an effective system for supervising declarations of assets and interests. [97]

2006

The quantity and quality of non-partisan investigations into allegations of high-level corruption have substantially increased compared to the previous period. Since October 2005, DNA has investigated fourteen high-level political figures from the opposition and ruling coalition parties who either hold, or have held, Cabinet rank or are Members of Parliament. These investigations have led to four criminal indictments so far. Some of these investigations were initiated on the basis of the wealth declarations that about 100,000 public officials have to produce annually and that are publicly accessible. [98]

Legislation establishing an independent agency to verify wealth declarations has not yet been adopted. Amendments to the Criminal Procedure Code introducing liability for legal persons are still pending in Parliament. The Parliament rejected a request made by DNA to search the property of a Member of Parliament. In February 2006, the Senate tried to prevent DNA from investigating Members of Parliament. [99]

Romania must pursue results in the fight against corruption at all levels; to prevent and fight corruption within law enforcement agencies and to adopt legislation on the financing of political parties, to be able to verify wealth declarations and to introduce the liability of legal persons.[100]

Based on the findings of this report, the benchmarks to be addressed are as follows:  Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken. [101]