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Illegal concealment of medical procurement documents

Documents on how public funds are spent on the procurement of medical equipment are twice concealed – The Serbian Government marked them as "strictly confidential” and the procurements were conducted without following the law, it is shown in response from the National Health Insurance Fund to TS.

Despite the fact that publishing information on how much Serbia procured "medicines, tests, medical devices, personal protective equipment and other necessary means and equipment for the treatment of COVID-19 patients" would allegedly cause “a severe damage to the interests of the Republic of Serbia" (as the Serbian authorities keep stating), the government officials and members of the COVID-19 Crisis Response Team provided such information.This fact further indicates that the complete secrecy of such information is not justified.

According to the Law on Public Procurement, in force until June 30th this year, not even a shortened procedure ("negotiated procedure") is carried out, not even in the situations when procurements needed to be carried out immediately "in order to provide basic life conditions in cases of natural disasters".

This exception could have been applied only when, due to urgency, it was not possible to wait even a weekfor example – that is how long the procurement procedure of 15 respirators, which was carried out by the Ministry of Health in March this year lasted. Even in such situations, however, there was a legal obligation to ensure the application of the principles of transparency as much as possible: e.g. to publish what was procured and at what price – but the Serbian authorities did not respect that obligation.

The new Law on Public Procurement – which came into force on July 1, 2020, and is in line with EU rules – does not know this exception at all. That means that any emergency medical procurement after that date would have to be announced.

Neither the old nor the new Law on Public Procurement allows the possibility for all data on public procurement to be declared secret, except for certain procurements in the security sector. However, it seems that this is exactly what happened, that the procurement of medical equipment were proclaimed secret by the Decision of the General Secretariat of the Government (March 11, 2020) and the Conclusion of the Government (March 15, 2020). Still, it is not possible to check if that was the case since the above-mentioned decision and conclusion are not publicly available either.According to the Law, the confidentiality of certain procurement data can be kept, but in no case, can data on whetherthe procurement has been carried out and the contract concluded be treated as confidential.

The National Health Insurance Fund – where40 billion dinars (approximately €34 million) were transferred from the budget reserves and which probably conducted the majority of procurements related to the fight against pandemic – has denied requests for access to information of public importance and repeatedly violated the law.Due to that reason, Transparency Serbia filed a complaint to the Commissioner.

The Funddescribed the request for access to information as "inadmissible", although the Constitution and the Law state that it is always permissible to request information, regardless of whether there may be any grounds for later denial. The Fund cited only formal grounds for its denial (determination of secrecy) although it was obliged to take into consideration whether the confidentiality was necessary to preserve "in order to protect the overriding interest".The Fund did not state which interest it is preserving at all by denying the public information on how the authorities handle public funds and to what extent they have provided the procurement of medical equipment for the suppression of infectious diseases. Finally, due to alleged secrecy, The Fund even denied the information on the procurement of ventilators and virus tests. At the same time, the state officials and the Crisis Response Team members were sharing (some of) such information, thus creating the impression that they all violated the confidentiality of data and that they caused the "severe damage" to the interests of the Republic of Serbia because that is exactly what can be protected by determining "a strict confidentiality".