CDT: ASK now has no ability to access public officials' accounts

The Anti-Corruption Agency (AKS), due to poor normative solutions and inconsistencies with other laws, now does not have the ability to access the accounts of public officials, the Center for Democratic Transition (CDT) announced.

CDT Program Director Milica Kovačević said that the authorities in Montenegro, during the process of obtaining IBAR, produced a set of laws that are unusable in practice, instead of enacting substantive and functional reforms that strengthen the rule of law.

"One of the most obvious examples of such a formalistic and superficial approach is the Law on the Prevention of Corruption, passed in June last year," said Kovačević.

According to her, a particular problem is the article of the law that relates to access to the accounts of public officials.

Kovačević said that at the time the law was passed, it was highlighted as a rare positive step in the abundance of cosmetic changes, because it was supposed to overcome the long-standing practice of avoiding asset control by denying officials consent to access accounts.

"However, due to poor normative solutions and inconsistencies with other laws, ASK now does not have the ability to access the accounts of public officials - neither with nor without their consent," the statement said.

It is stated that the opinion of the Agency for Personal Data Protection and Free Access to Information (AZLP) dated February 24 indicates that the Law on the Prevention of Corruption does not provide a legal basis for processing the banking data of public officials.

Kovačević said that referring to the Law on Credit Institutions proved to be an inconsistent and legally inadequate solution, because that law does not recognize ASK as the legal user of that data.

She said that the current consent form refers to articles of the law that have ceased to be valid, so ASK, according to the AZLP, no longer has the ability to access data even based on consent, because it is based on a provision that no longer exists in the legal system.

"What is additionally worrying is the fact that the Law on Credit Institutions was amended in February, and that at that time an amendment was submitted to the parliamentary procedure, and then subsequently withdrawn, which was supposed to allow access to data that constitute banking secrecy and to the KAS, in order to exercise its legal powers," the statement says.

Kovačević said that it remains unclear why this opportunity was missed and why the moment was not used to provide ASK with access to officials' data that is crucial for controlling their assets and income.

She stated that the result was paradoxical, that the law that was supposed to strengthen the supervisory function of the KAS disabled the basic purpose of that institution - effective control of declarations of assets and income.

"The law is, simply put, superficial and poorly written and has not even passed a basic check for compliance with key laws in the field of data protection and the financial system," said Kovačević.

According to her, such a result is a direct consequence of the approach in which laws were adopted to fulfill a political goal – obtaining IBAR, rather than reforming the system.

"As the Ministry of Justice is already working on amendments to the Law on the Prevention of Corruption, we consider it crucial that this time they approach the job with a minimum of professional responsibility," said Kovačević.

She said that it is necessary for the changes to be based on a serious analysis of the legal framework, with the involvement of experts and relevant stakeholders, in order to finally ensure efficient and lawful supervision of the assets of public officials.

Kovačević emphasized that it is particularly important to provide access to accounts as soon as possible, because ASK cannot currently exercise one of its key legal responsibilities.

"Every day of delay means an extension of the legal vacuum and a continuation of the period in which there is no real control over the property and income of public officials," Kovačević stated.

She pointed out that it is also high time to learn a lesson from this case.

Reforms, she said, cannot be improvised, nor implemented without a thoughtful approach and a basic understanding of the system that is changing.

"Bringing the system to a worse state than it was before the alleged reform seriously jeopardizes the fight against corruption and sends a message that institutions are not ready to take real responsibility for establishing integrity in the performance of public affairs," the statement said.