Monitoring of the Implementation of Bih Anti-Corruption Strategy 2009-2014

Monitoring of the implementation of BiH Anti-Corruption Strategy 2009-2014

Monitoring of the implementation of BIH Anti-Corruption Strategy 2009-2014

First periodical report Transparency International BiH

Supported by

Bosnia and Herzegovina, December 2010

About the publication

Authors of the report

Eldan Mujanović (Holds a Bachelor and Master degree from the Faculty of criminalistic sciences at the University of Sarajevo. He is an author of many academic and practical studies in the field of criminalistic. Worked, among others, on the study of the juvenile delinquency, corruption, money laundry, confiscation of illegally gained assets. Field of interest is the international cooperation in fighting crime)

Darko Datzer (Holds a Master degree from the Faculty of criminalistic sciences criminology and security studies, University of Sarajevo. He is a co-author of the monography „Frankly speaking about police and corruption“, as well as the author of many academic and scientific articles related to prevention of and fight against corruption and theoretical criminal science. Author and participant in many scientific research projects on corruption, crime prevention, juvenile delinquency. Member of the association of criminalists at home and abroad and of the European Association of Criminalists. Member of the editorial board of the magazine Criminalistic themes)

Aleksandar Draganić (Policy Development Expert employed at the Enterprise Development Agency (EDA) Banja Luka, Bosnia and Herzegovina. Holds Masters degree in Economics from the Staffordshire University (UK). Provides expertise and support to local government and public administration reform projects, as well as other project in the area of his competences (youth, social exclusion, economic and socio-economic development). Participated in many studies ordered by government and international organizations, as well as in creation of laws and legislation in B&H. Actively involved in civil society work and their projects. Author, co-author and editor of more than 10 books and publications.

Table of contents

About the publication

Table of contents

Executive summary

Component 1: Capacity-building of the Agency for prevention of corruption and coordination of the fight against corruption

Component 2: Prevention of corruption

Component 3: Education, training and awareness raising

Component 4: Law implementation

Component 5: Coordination and implementation of the strategy

Conclusions...... 104

References

Executive summary

Corruption is an omnipresent phenomenon in Bosnia and Herzegovina. The evidence for this are various surveys characterised by different levels of systematisation and objectiveness and corruption is at the top of the political, economic and crime-political agenda as well as of the discussions on ethics and sociology. The efforts made by the country to reduce corruptive practices are seen as inadequate and inefficient. Therefore, the European Commission in the Bosnia and Herzegovina 2010 Progress Report stated the following: ''Bosnia and Herzegovina has made limited progress in tackling corruption, which is widespread throughout the public and private sectors, affecting the judiciary, tax, customs administrations, public procurement and privatisation...Anti-corruption policies and measures are not adequately implemented“ (European Commission, 2010, p. 14). Furthermore, according to the TI Corruption Perception Index for 2010, Bosnia and Herzegovina shares 91st to 97th place with Gibouti, Gambia, Guatemala, Kiribati, Sri Lanka and Swaziland, while being together with Kosovo, the worst among the neighbours and again at the very bottom among the European countries for the presence of corruption in the public sector.

Considering the longstanding emphasis placed on the adoption of the anticorruption policies as a condition sine qua non of all the systematic efforts in fighting corruption, BIH has made some progress with the adoption of the Anticorruption Strategy 2009-2014, thereby formally fulfilling the requierements set out in the UN Convention against corruption, the European Partnership and Visa liberalization Road Map. However, taking into account the comments presented in the period prior to the adoption of the Strategy itself, it may generally be concluded that the manner of the so far realisation of the objectives and activities envisaged in the Strategy is not satisfactory. In that context it should be noted that major objections were related to the vague formulation of the vision and strategic goal, the lack of plan for allocating necessary resources from the budget and insufficient awareness of the local context. Namely, these strategy-development related problems also hamper its implementation.

The Anti-corruption Strategy identifies the following main implementing bodies and beneficiaries:

• BiH Parliamentary Assembly;
• BiH Council of Ministers and BiH institutions;
• Federation BiH Parliament and Republika Srpska National Assembly;
• Entity governments and institutions;
• BiH Brčko District Assembly;
• BiH Brčko District Government and institutions;
• Public enterprises and institutions;
• Political parties;
• Universities and other education institutions;
• Associations and civil society institutions;
• Citizens;
• Media;
• Private sector.

Although it was planned to make the detailed analysis of the parties in order to identify who did what, it is evident that the only active parties were the BiH Parliamentary Assembly and BiH Council of Ministers with some BiH institutions. They passed strategic guidelines and laws and started building the institutional framework of the Agency for the prevention of corruption and coordination of the fight against corruption.

As it was suggested before the Strategy was passed that the vision of strategic objectives was not clear enough, consequently the implementation faces obstacles. As already mentioned, the vision is too generic and some of its elements are rather related to strategic objectives than to the vision itself. Another problem encompasses the objectives themselves that are not divided into strategic and operative (as the generally accepted division should be) but instead the concept of long-term, mid-term and short-term objectives has been introduced for different operative components. A wish list like this is good in case of development of the plan and possibility of monitoring its implementation but not in case of a comprehensive approach to the issue of corruption. Another issue is the fact that all activities within the Strategy (including the objectives) are related mainly to the Council of Ministers and newly-established Anti-corruption Agency without taking into consideration the importance of media, associations, NGO sector and other numerous organisations. It will remain like this until the Agency becomes completely operative with all its organisational, material and technical capacities with the purpose of establishing further cooperation with the bodies responsible for implementation of the Strategy and with the beneficiaries. The lack of budget resources for the functioning of the Agency and implementation of the Strategy remains enormous obstacle for the implementation of the envisaged activities. It is evident in the BiH Framework Budget Document 2010 – 2012 that the BiH Council of Ministers, when developing this Document, did not allocate any resources for the implementation of the Anti-corruption Strategy and normal functioning of the Anti-corruption Agency. As the Strategy and the Agency resulted from the intensive pressure exerted by EU and international community on Bosnia and Herzegovina, impression is left that local authorities consider that exactly those representatives of the international community are to finance the institution. The Strategy can be implemented only if certain resources are ensured based on which realised activities could be visible. Consequently, within the Action Plan precise cost has to be presented for the implementation of some groups of activities, and the manner in which the cost will be borne (budget, donors, etc.). Unfortunately, neither the Strategy nor the Action Plan specifies the costs, which additionally hampers further implementation and development of the implementation capacities. Finally, awareness of the local context is crucial for the implementation as many of the strategies have failed due to the lack of awareness of the local specificities that are often complex for those who dared to provide strategic solution for certain issues. This primarily encompasses the complexities of the horizontal administrative and legislative structures that are the main holders of the realisation of major activities envisaged by the Strategy.

Within the Monitoring of the implementation of the BiH Anti-Corruption Strategy 2009-2014, Transparency International BiH (TI BiH) monitors the implementation of the Strategy and its Action Plan by following areas: capacity-building of the Agency for the prevention of corruption and coordination of the fight against corruption, prevention of corruption, education, training and awareness raising, law implementation and the coordination and implementation of the Strategy.

Analysis of the implementaion of the Anti-Corruption Strategy

Component 1: Capacity-building of the Agency for the prevention of corruption and coordination of the fight against corruption. Since the time when the Strategy was passed to the time when this report is developed, a good legal framework has been created for the functioning of the Agency. The lower chamber of the BiH Parliamentary Assembly adopted, as expected, the Law on Anti-corruption Agency in December 2009. However, as the Agency has remained understaffed (nomination of the director and deputy director still pending) and no internal acts for its functioning have been in place, the capacities of the Agency have not been sufficiently used. The rulebooks should in more detail define the coordination of the implementation of the national strategy as well as the programmes for prevention and education envisaged in it. Deadline for these activities was June 2010, while the institutions responsible for their implementation were the BiH Council of Ministers, the Agency, BiH Parliamentary Assembly and BiH Civil Service Agency.

In addition to the establishment of the Agency and the nomination of its director, development of its rulebook, staffing, budget planning, other activities for capacity building of the Anti-corruption Agencyhave been planned for the period after this reporting. It should be noted that the procedure for nomination of certain members of the Agency representing the civil society and academic community and the opened procedure of nomination of the Agency director are to be completed. The cause for delay is insufficient readiness of the stakeholders to implement these activities.

Component2: Prevention of corruption. The Strategyidentifies three main areas through which it is necessary to undertake preventive anti-corruption activities (public sector reform, transparency and responsibility; anti-corruption/integrity plans; and, simplification of the business environment), to be achieved by means of short-term, medium-term and long-term activities. In principle, it may be concluded that in the domain of the public sector reform and development of transparency and responsibility, it seems that Bosnia and Herzegovina has made little progress, in a sense of modernisation of the public sector, regulation of work of civil servants and creating possibility for reporting corruptive practices without any consequences on the party reporting it, including lobbyism in the implementing of the public procurement procedures. As for the individual SHORT-TERM MEASURES, the results are quite heterogeneous; however, they mainly indicate that no expected success was achieved in the public sector reform. On the development and adoption of the public sector modernisation programmes with the purpose of strengthening public sector, the implementation of which falls within the responsibility of the BiH Council of Ministers, the Anti-corruption Agency and Public Administration Reform Coordinator's Office, has been implemented partially/ none progress was achieved. A better quality regulation of work of civil servants is subject to a number of objectives and measures. Very little has been achieved in that respect. Thus, for anti-corruption plans, to be passed by all the ministries and institutions at all government levels, no systemically collected data are available. No public opinion survey has been done in order to identify areas where corruption is most frequent, nor activities have been undertaken in order to introduce new, unique rules on receiving and giving gifts in office by civil servants. Activities concerning protection of parties reporting corruption and generally creating an atmosphere where reporting corruption is not considered a denunciation are also very slow. In addition, other activities to improve environment for reporting corruption, including legal framework guaranteeing that parties who report irregularities of public administration in good faith will not be punished, are not adequately addressed. Finally, the Strategy fails to define anti-corruption legislation referred to in section 2.11. of the Action Plan. As the leader of the activity needs to be the Anti-corruption Agency that remains, as already said, non-functional, the report on efficiency of anti-corruption legislation, as an indicator of the implementation of its measure, (as expected) has not been prepared. As for the assessment of the implementation of the medium-term objectivesd it should be noted that most of them coincide with the short-term ones that are the phase in their implementation. . Therefore, taking into account the achievement of the short-term objectives, it is clear that little progress has been made in the public sector reform and transparency and responsibility of Bosnia and Herzegovina. Little can be expected in case of medium-term objectives. Long-term objectives from the Action Plan mainly refer to the identification of weak points within the public sector, that is, they refer to those areas of work or potentially certain posts prone to corruption, revision of public sector (including the introduction of introducing different manner of civil servants' performance assessment) and to introducing of e-government and e-management models. The activities will take place in long-term perspective. However, part of the activities is undertaken within the short-term measures that partly coincide with the said long-term objectives. Therefore, there have been activities related to public sector reform and introduction of e-government and e-management mechanisms. Nevertheless, the activities related to the achievement of long-term objectives from the Anti-corruption Strategy partly refer to the achievement of the long-term objectives from the Public administration Reform strategy, aimed at establishing the quality level of European administrative space. Since the time of writing the report, Bosnia and Herzegovina achieved 43.72% of planned objectives concerning the public sector reform(PARCO, 2010), which a priori is not bad as the time limit for the implementation of the Public Administration Reform Strategyis end of 2014. However, as for the other long-term measures (identification of weak points within public sector), only sporadic activities have been undertaken.

Component 3: Education, training and awareness raising. The realisation of this Strategy component has not started yet due to the time limits envisaged by the Strategy Action Plan. Namely, it has been envisaged since the time of the passing of the Strategy until the time when this report is written, the Strategy and its Action Plan envisage the development of the curricula, pedagogical material and tools and trainers’ training for the purpose of future providing of training in the field of integrity/fighting corruption/ethics for civil servants. However, it should be noted that for the achievement of objectives, a fully staffed Agency needs to be in place and the time limit envisaged for September could not be respected. This is due to insufficient capacity and the secondary legislation governing the functioning of the Anti-corruption Agency. Realisation of the activities in the field of education, training and awareness raising requires a lot of resources as well as a considerate approach to the relevant ministries in order to get the activities started, taking good care to avoid any politicized positions.

Component 4: Law implementation.The Anti-corruption Law provides for the newly-established Agency to coordinate and monitor activities regarding the implementation of the legal-political measures foreseen by the Anti-corruption Strategy (2009 - 2014) and the relevant Action Plan that is to make the strategy measures operational. However, the Agency has not started performing its tasks completely which created legal gap regarding the coordination and monitoring of the implementation of the Strategy. In order to eliminate this obstacle, the BiH Ministry of Security undertook activities concerning permanent monitoring of the implementation of the Anti-corruption Strategy (2009 - 2014). Generally speaking, it can be said that in this component the implementation of the Strategy is not satisfactory. Despite certain programme measures which have partially been implemented or started, shortcomings in the realisation of multiple objectives are visible. So for example, with regards to the measure related to the enhancement of the efficiency of all BiH law implementing agencies, the realisation of the objective is missing, which hampers the analysis of the implementation basically because no specific indicators, based on which the implementation of the measure would be made, are available, even though it must be emphasised that the competent ministries of internal affairs in the entities and Brcko District police undertook few activities towards the realisation of this objective. Also, with regards to the another important measure, the evaluation of application of special investigative actions in case of corruption in order to review their efficiency, measure aimed at reviewing of efficiency of application of special investigative actions to detect and prove criminal offenses involving corruption, there are no reliable data and it can only be stated that the Strategy and the Action Plan the same wording is used in both the Strategy and Action Plan regarding the determination of the short-term objective (Strategy) and its elaboration (Action Plan). This is for sure a weak point that may affect the quality of realising general and specific strategic objectives. The situation is similar also with other measures. For example, regarding the specialized trainings for employees, law enforcement agencies involved in the fight against corruption, as well as for prosecutors and judges in the domain of corruption and confiscation of illegally gained assets, can be stated that, despite significant activities undertaken to realize this objective, key shortcoming of the competent institutions relate to the unsistematic, unequal approach in implementing the objective.The evidence for this is that certain training activities were addressed in less detail depending on which institution organised it. On the other hand, non-functioning of the Anti-corruption Agency in the area of unifying training contents and their supervision considerably contributes to the present conclusion. Furthermore, key shortcomings in this strategic domain relate to evident contradictions between the Strategy and the Action Plan in terms of inconsistencies of deadlines for the achievement of objectives as well as the ways in which certain implementation indicators are given in the Action Plan. This is for example the case with different procedures which aim at improving the investigations for more efficient processing of corruptive crimes as well as with the measure related to the harmonisation of the criminal law in BiH with international standards.