In the future, officials will have to report digital assets in all forms, as well as trust funds (transfer of beneficial ownership of assets) in the country and abroad, as well as beneficial ownership, to the Anti-Corruption Agency.
The agency will also have the ability to check the lifestyle of an official if it suspects that his or her income and the assets of household members are significantly lower than the declared and undeclared assets and expenses.
“… The burden of proving the basis for acquiring property and income lies with the public official,” is the new paragraph in Article 33 of the Draft Law on the Prevention of Corruption.
The Ministry of Justice published a report on the public debate on the Draft Law yesterday, and key suggestions from the interested public were taken into account, so there will be no "stacking" of memberships in management boards, but no statute of limitations for violating regulations.
The Minister of Justice confirmed to "Vijesti" at the beginning of the month that numerous suggestions are mostly justified. Bojan Božović.
He then told "Vijesti" that he would "personally advocate for their integration into the final text of the Law, with particular attention to key provisions regarding limitations, the definition of conflicts of interest, and the jurisdiction of competent bodies."
No statute of limitations, no hoarding of chairs
The Directorate for Criminal and Civil Legislation of the Ministry of Justice, which prepared the Draft Law, accepted the suggestion of the Network for the Affirmation of the Non-Governmental Sector (NGO) that "for the sake of unambiguous interpretation, digital assets in all forms and trusts in the country and abroad, as well as beneficial ownership" become specifically prescribed as data that officials must report.
The MANS proposal was also accepted, according to which "the article introducing a statute of limitations for violations of the law by public officials regarding the concealment of assets or income represents one of the most problematic provisions of this legal act."
"The original introduction of a five-year statute of limitations, and now its extension to ten years, still represents a significant step backwards in the fight against corruption. It is important to emphasize that the previous law did not provide for a statute of limitations for these acts, which allowed for more efficient processing of cases of illicit enrichment without a time limit. The introduction of any statute of limitations in this area opens up space for evasion of responsibility and potentially encourages corrupt behavior," states the MANS proposal, which was accepted by the Ministry, so that this provision will be deleted.
Božović's department also abandoned the provision that allowed officials who perform their duties on a non-professional basis to be members of several management bodies of institutions, state-owned institutions, or municipal enterprises.
"...There is a real danger that a large number of public officials from management boards and advisory bodies, who have great powers and are therefore susceptible to corruption, will be excluded from the restrictions provided for by this law," MANS explained the suggestion, which the Ministry of Justice found justified, so this provision was deleted from the Draft Law.
The proposal of MANS to return the solution from the previous version of the law was partially accepted - instead of raising the value of the increase in property for which a special report must be submitted from 10.000 to 5.000 euros, MANS also requested that the obligation for officials to submit reports on property and income within two years of the termination of their function be restored - on the day their function ended, and not by the end of March for the previous year, as currently provided for by the Law.
"The proposal is partially accepted at the time the report is submitted. In relation to the value being reported, the proposal is not accepted because it is in line with Directive (EU) 2015/849 of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing," the Ministry of Justice explained.
Proposals were also accepted to include the interests of related parties in the definition of conflict of interest, to enable public officials to review the Agency's opinion before the competent court, but at the same time, legal transactions concluded in the presence of a conflict of interest are null and void.
The ban on receiving gifts, at the suggestion of MANS, has been extended to "related persons".
This NGO was of the opinion that the term “related person” was unjustifiably replaced with “a relative of a public official in the direct and collateral line up to the second degree of kinship, a relative by in-laws up to the first degree of kinship, a married and common-law spouse, a partner in a same-sex life partnership, an adoptive parent and an adopted child, a member of a common household”, because this “completely renders the meaning of this provision meaningless and prevents ASK from processing conflicts of interest”. The Ministry also accepted this suggestion.
The proposal of that NGO, which referred to a permanent restriction for public officials regarding the representation of legal or natural persons before government bodies in cases in which they participated in decision-making as public officials, was partially accepted.
"Restrictions on the representation of legal or natural persons before government bodies in cases in which they participated in decision-making as public officials are increased to two years. A permanent restriction cannot be established because it would violate the right to work, bearing in mind that public officials as managers often sign a huge number of decisions in which they did not actively participate. Also, restrictions of a certain duration are an international standard," Božović's department believes.
They will also report off-book ownership.
The Ministry also accepted the suggestion of the Deputy President of the Agency for the Prevention of Corruption Mladen Tomović that a person related to a public official is, in addition to relatives up to a certain degree of kinship, also “another natural or legal person with whom the public official establishes or has established a business or other relationship for the purpose of acquiring personal interest”.
His proposal that "off-the-books ownership of real estate and movable property" must also be reported was also accepted.
Tomović requested, and the Ministry of Justice accepted, the addition of a new article according to which "the Agency may initiate the procedure for comparing the reported income and expenses of a public official and household members since the beginning of the public official's performance of public office."
"If the Agency determines during the verification process that the reported income and assets of a public official and members of a joint household are significantly lower than the reported and undeclared assets and expenses of a public official and members of a joint household, the burden of proving the basis for acquiring the assets and income lies with the public official. Significantly lower income means the difference between the income generated by a public official and the reported and undeclared assets and expenses of a public official, and the difference is greater than 50.000 euros," Tomović's suggestion was accepted.
He also suggested that "the procedure for dismissing the Agency's director is initiated upon the proposal of the Council, and the decision to dismiss the Agency's director is made by the Council by a majority of at least three votes," which was also accepted.
Tomović also requested that, if the proposal for the annual budget law makes changes to the Agency's draft budget proposal determined by the competent body of the Parliament, the Government submit a written explanation to the Parliament, which was also accepted.
The Association of Disabled Youth and the Union of Free Trade Unions requested that “a person whose election, appointment or placement was approved by a government body at the proposal of a representative trade union, a representative association of employers or the civil sector should not be considered a public official.” The Ministry of Justice accepted their arguments.
They will have to pay for the damage.
MANS requested, and the Ministry approved, the introduction of an obligation for an official who, by violating this law, causes damage to the state, to compensate for that damage. "It is also necessary to prescribe the jurisdiction of the institution that would be responsible for initiating proceedings for state compensation in such cases," it was explained.
Although MANS requested it, the Ministry did not agree with the position that the Council's jurisdiction should be prescribed to decide on appeals against decisions of the Agency's director and to establish that the Council's decisions are final, and that an administrative dispute can be initiated against them.
"The proposal is not accepted, as this would reduce efficiency and delay the final decision-making process made by the Agency's director," the Justice Department explained.
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