Grand Corruption and Tailor-Made Laws in Serbia

Transparency Serbia cordially invites you to online conference

Grand Corruption and Tailor-Made Laws in Serbia

Presentation of key findings from the study

and open discussion on how to solve identified problems

TUESDAY, 30.3.2021, from 11 to 13 h

The Conference will be held on Zoom platform:

https://us02web.zoom.us/j/85391746913?pwd=SjZtbDdXRXBlTEErTGRqaU0wd2hKUT09

Meeting ID: 853 9174 6913

Translation from English and Serbian is provided

OPENING AND INTRODUCTORY REMARKS, 11.00 – 11.30

Mr Nemanja Nenadić, Programme Director, Transparency Serbia

Mr Dirk Lorenz, Counsellor/Head of Political Section, EU Delegation to Serbia

Mr Tobias Flessenkemper, Council of Europe, Head of the Belgrade Office

Ms Bojana Šćepanović, State secretary, Ministry of Justice, Republic of Serbia

FIGHT AGAINST GRAND CORRUPTION IN SERBIA, 11.15 – 12.10

(Mr Robert Sepi, Transparency Serbia, Ms Lidija Komlen-Nikolić, Association of Public Prosecutors and Deputy Public Prosecutors of Serbia)

In this part, we will try to find answers to the following questions:

How it is determined in Serbia what is considered as „grand corruption“?
What does the concept of grand corruption defined by Transparency International envisage, and what would be the benefits of accepting this concept in Serbia?
Which state bodies are in charge of fighting grand corruption and what are their results?
What are the legal and institutional barriers to detecting and punishing grand corruption?

TAILOR-MADE LAWS IN SERBIA, 12.10 -12.45

(Ms Zlata Đorđević, Transparency Serbia)

In this part, we will try to find answers to the following questions:

Under what circumstances it is possible to determine or suspect that a law or other regulation is tailored to private interests and what examples of such regulations we noticed??
To what extent is the process of passing laws and other regulations in Serbia protected from the legalization of corruption through the introduction of provisions tailored to private interests?
To what extent do the application of rules on lobbying, risk analysis of corruption in laws and public consultations help disclose the interests behind the provisions of the regulations?

Additional time for questions and answers, 12.45-13.00

About the study

The report GRAND CORRUPTION AND TAILOR-MADE LAWS was created as a part of the project „Ending Impunity for Grand Corruption in the Western Balkans and Turkey“ implemented by Transparency International, together with its members and partner organizations from the Balkans.

Transparency International defines grand corruption as offences set out in the United Nations Convention against Corruption (UNCAC) Articles 15–25 when committed as part of a scheme involving a high-level public official so that the crime results in a major misuse of public finances or property or severely restricting the exercise of the most basic human rights of a substantial part of the population or a vulnerable group.

Tailor-made laws are legal acts enacted with the purpose of serving only the interests of a natural person, a legal person or a narrow group/network of connected persons and not the interest of other actors in a sector, groups of society or the public interest. Although it may appear to be general legal acts, the main purpose of tailor-made law is to create the desired effect in certain cases. Since they have the form of a law, the consequences of such acts cannot be disputed in court, because corruption is already legalised. Based on this definition, the following criteria can be used as indicators that laws may potentially be tailor-made: who is behind the enactment of the law or the content of some of its norms, what are the irregularities observed in writing, the enactment or adoption of the law, who benefits from the law or who has been harmed by its application.

As part of this research, we collected data on corruption cases prosecuted in the last 12 years (2008 – 2020), which can be classified as "grand corruption" cases based on the Transparency International definition. We also analyzed cases in which suspicions of grand corruption were publicly stated and argued, but no prosecution was undertaken. Data on corruption cases were collected using requests for free access to information sent to the Prosecutor’s Office for Organised Crime, the Court of Appeals in Belgrade, special departments of the Higher Public Prosecutor’s Office for Suppression of Corruption, analyses of published data (for example, annual reports of the Republic Public Prosecutor’s Office, database of the Court of Appeals in Belgrade and media articles) and interviews. Data on tailor-made laws were collected by reviewing published documents, requesting access to information, based on media reports and interviews, for the same period of last 12 years.

The conference is part of the Transparency International project which is financially supported by the European Union. Transparency Serbia is solely responsible for the expressed views which can in no way be taken to reflect the views of the European Union.

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RECOMMENDATIONS based on research

Judiciary

The concept of grand corruption should be recognised in the Serbian Criminal Code, to prevent impunity for the gravest corruption offences beyond the current statute of limitation rules.
The law on the organisation and competence of state authorities in the suppression of organised crime, terrorism and corruption should be amended to ensure that the Prosecutor’s Office for Organised Crime is in charge of the corruption offences of all high-level public officials.
The Criminal Procedure Code should be amended to enable implementation of special investigation techniques for all corruption-related offences.
The Constitution should guarantee greater independence of judges and prosecutors from politicians. In particular, professional judges and prosecutors, who are elected by their peers in a free, transparent election process, should comprise the majority of the High Judicial Council and State Prosecutorial Council.
The system of judges’ and public prosecutors’ liability for failure to achieve professional and ethical standards should be more transparent.
The Public Prosecutor’s Office should have a clearly defined duty to investigate, within a certain time frame, documented allegations of serious corruption exposed in the media. It should also inform the public about its findings.
The Public Prosecutor’s Office should publish an explanation of decisions not to prosecute cases of alleged grand corruption.
The Prosecutor’s Office for Organised Crime and four departments of the higher public prosecutor’s office in charge of suppressing corruption should be given sufficient resources for more proactive investigations.
The newly adopted Law on Investigation of Property Origin and Special Tax should be checked by the Constitutional Court before it enters into force, to prevent possible damage requests. Once the law is in force, the plan for Tax Administration control should prioritise the control of potential participants in high-level corruption cases.
The police, public prosecution and court statistics should be improved to enable more detailed information on types of corruption, the sector where corruption occurred and offenders. The statistics of various authorities should be enhanced to be fully comparable.
The police, public prosecution and courts should regularly report about their work in the field of anti-corruption (at least quarterly) and this information should be available in open data (machine-readable) format.
The competent public prosecutor should accurately present information about criminal investigations and ongoing cases, thus preventing politicians (the president, prime minister and minister of police) from taking the floor.
Public prosecution offices and courts should publish information about their deals with those accused of corruption and plea bargaining, to ensure a sufficient level of protection of public interest from possible abuses.
Parliament and the Ministry of Justice should organise public hearing (experts’ and practitioners’ debate) to discuss implementation of strategic acts and laws relevant for the prosecution of high-level corruption and related problems. Such forums should include representatives of independent state institutions (the State Audit Institution, the Agency for Prevention of Corruption, the Commission for the Protection of Rights in Public Procurement, etc.), the Anti-Corruption Council and civil society organisations and investigative media that exposed cases of potential high-level corruption.
The coordination body for implementation of the Action Plan for Chapter 23 should organise debates on the results of supressing high-level corruption at least annually, following the EC country report and/or non-paper.

Law making

The following changes in legislation and practice are needed to prevent undue influence in public decision-making and subsequent state capture:

The constitution should be amended to limit the possibility of “bypassing” national legislation (in particular on public procurements, public–private partnerships and privatisation) through state-to-state agreements and loan arrangements. Even before such constitutional changes, the government should provide a detailed explanation of the effects of these agreements that would include considerations and economic analyses of alternative solutions for the same problem. The Fiscal Council should check these analyses and its opinion should be considered along with the governmental proposal in parliament.
All the government’s economic contracts should be published before they enter into force in order to be valid (constitutional changes might be needed). All existing government economic contracts should be published without further delay.
The constitution should explicitly prohibit adoption of “laws for one project” that violate the provisions of systemic law for the area.
An explanatory note for each law should include the full “legislative footprint”, that is, information on all the stakeholders who influenced the process of legislative drafting in all phases.
Public debate should be mandatory for all laws, regardless of its proponent. Failure to organise public debate should be recognised as grounds to deny the constitutionality of the act.
Government, ministries, parliamentary groups, their officials, advisors and task force members should be obliged, through the Law on Lobbying, to publish information on the legal and natural persons that approached them, in connection with the enactment, repeal or amendment of the law, whether it is formal correspondence or an informal attempt to influence;
Ministries and the government should publish an explanatory note for draft bylaws and organise public debates before the adoption of these acts.
The Agency for Prevention of Corruption should be mandated to give its opinion about each law and bylaw that might affect corruption or the fight against corruption, and not just acts that are explicitly mentioned in the Action Plan for Chapter 23. A proponent of the legislation should provide information on how they implemented the agency’s recommendation.