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Problems of fighting corruption in the context of European integration

If it is to be judged by the rhetoric of EU officials, the Member States and the Republic of Serbia in the last few years, after accession negotiations are opened with Serbia, the most important issues are those concerning the achievement of a sustainable solution for Kosovo and the rule of law. As far as Kosovo is concerned, negotiations are being held between representatives of the Republic of Serbia and representatives of the “temporary institutions” there with the mediation of the EU, and it is clear that this is the process whose outcome depends not only on Serbia, but also on the actions of actors on the other side of the negotiating table.  

On the other hand, when it comes to the progress that Serbia should show in the ”rule of law”, it should be equally clear that it is about the standards Serbia itself needs to achieve, and not the issues that are ”negotiated” in the right sense of the word. Therefore, in principle, the approach is not correct to negotiate whether Serbia has achieved the rule of law, by which Serbia would argue that the modest results are sufficient and the European Union would ask Serbia to have better laws and apply them more.

For the same reason, it is not entirely correct to present the rule of law as a process that requires some time to pass, as a standard that cannot be reached ”overnight”, as is often done by European and Serbian officials. Namely, the achievement of standards in the rule of law in Serbia has long ago been a much smaller issue in the need to improve the regulations, establish state bodies and strengthen their capacity. The predominant part of the problem is that state bodies that exist have the capacity but not the will to implement the laws that Serbia has already adopted.  

The fight against corruption is one of the areas of rule of law where the results are not good enough. The European Union’s progress in this area is accompanied by negotiations on Chapter 23, in which this issue is specifically dealt with, but also in many parts of other chapters, such as 24, relating to security, 5, relating to public procurement and public – private partnerships, Chapter 32 relating to financial control and others.  

As it is well known, Chapters 23 and 24 are among those that have been open first, and for which progress in achieving ”final criteria” will be traced to the very end of European integration. This progress is followed through the semi-annual so-called nonpaper reports, not just annually.

It is often emphasized that the EU has opted for such an approach due to poor experiences with the last three cases of accession – Bulgaria, Romania and Croatia – where new members were received, although they did not fully meet standards in this area. However, according to the author’s view of this text, judging by the current course of “negotiation” in relation to Chapter 23 it cannot be concluded that the EU has drawn enough lessons and that an approach that will deliver results within the set deadlines is selected.

For now, there are two such deadlines – first defined by the Action Plan for Negotiating Chapter 23, where all activities should be implemented in the period 2016-2020. The second deadline is the indicative time of Serbia’s accession from the February EU Strategy, according to which the admission could be 2025, if by 2023 the criteria are met.

The author of this text has repeatedly had the opportunity to introduce EU officials and Member States in direct talks with the findings of Transparency-Serbia, independently or within the framework of the prEUgovor OCD coalition, presented to domestic institutions and the public, according to which the current plans of activities, even if they were fully met, would not lead to the reduction of corruption to the level of individual incidents to which a society finds a response by punishing an individual who has violated the rules. A typical response to such fears was that, regardless of the content of the action plan and its fulfillment, success would be judged at the end of the process, by concluding that the “criteria for closing the chapter” were met.

Such an approach can be”easy” from the point of view of final EU assessors, who would be little in touch with giving an assessment of whether success is satisfactory or not-is it, for example, that at same point before the enlargement will be made a final verdict for the corruption of one, five or ten high-ranking public officials an evidence of the functioning of the system.

Such an approach could also be suitable for the authorities in Serbia, if they counted that at the key moment of enlargement to the readiness assessment, another reasons would be significantly influencing, for example, geopolitical reasons. In no case, however, the “looseness” of the benchmark is not suitable for citizens of Serbia for which the process of European integration is a unique opportunity to establish a more effective system of combating corruption.

The system for improving the fight against corruption, established by the action plan of April 2016, does not work. At first glance, it could be said that the problem is that only 56% of matured liabilities are fully met or are “continuously executed”. These findings from the official government statistics should otherwise be taken with a reserve because the estimates of fulfillment are often based on the claims of the taxpayer and not on the examination of the effects of the applied measures.  

The bigger problem is that the situation would not be much better or that the percentage of fulfillment is higher. For example, if the amended Anti-Corruption Law Act has been adopted to date and the implementation of related activities (by-laws, trainings, and promotions) the success would seem to be higher. However, the adoption of the current text of the draft Law on Prevention of Corruption, intended to replace the existing Law on the Agency, would not solve almost any problem due to which the reform started. The Agency would not have the power to perform its tasks more efficiently, would not be organized so as to be less subject to the influence of those it should control, nor would it create the conditions to devote more attention to resolving conflicts of interests of current and former officials in place of excessive administration and consent.

The basic problem with the Action Plan, and this does not only concern the Serbian institutions, is that it is not designed to measure the impact of individual activities against the goal, and the revision of this document, planned for 2018, should be used to eliminate the problem at root. This can best be demonstrated in the case of an activity that was realized even before the current AP was officially concluded-the adoption of the Law on the Protection of the Accuser. This law is indeed applied, and some accusers, on the basis of its provisions, received judicial protection that would otherwise be denied. However, the purpose of adopting this law was to increase the number of reported criminal offenses of corruption. Not only this general goal has not been achieved, which is evident from the prosecutorial annual statistics, but there is no systematic monitoring of possible correlations with the application of the ZZU.

Another important problem for AP is the wrong choice of activities. For example, in the case of free access to information of public importance, activities are planned to improve the part of the legal framework, and none in relation to the most visible problem-that in several hundred cases each year, the authorities, contrary to law, do not act upon the final decision of the Commissioner for Information , that the Government does not ensure the execution of these decisions, and that the National Assembly does nothing to solve these problems after receiving data in the annual report of the Commissioner. 

No matter how the amended Action Plan has been improved, the situation will not be corrected unless the approach to solving the problem „on the go“ is changed, through much better coordination and monitoring. The current monitoring system, in which the body of the Government (the Council for Monitoring and Application of Chapter 23) quarterly collects and publishes information that activities have not been carried out, that institutions cannot agree on what their job is or simply do not finish it, and no visible measures are taken by the government, obviously cannot lead to the goal.

Experience does not give the reason for optimism, either in case the authority for monitoring application is transferred to the Anti-Corruption Agency, as planned. Namely, the Agency has been responsible for monitoring the implementation of the national action plan for the fight against corruption for five years, and reports on this to the Assembly. The results are devastating-a large part of the taxpayers do not at all provide verified information on the fulfillment of obligations, and this remains without the reaction of the National Assembly. Also, the body for coordinating the implementation of the anti-corruption strategy, headed by the Prime Minister, who should take over the monitoring of the chapter on combating corruption, not only does not solve the problems indentified, but has not met for years.