Since August 8, the Agency for the Prevention of Corruption (AKC) has had the legal right to access data from public officials' bank accounts and accounts of members of their household without their specific consent, but for the full implementation of this authority, bylaws have yet to be enacted that will regulate the manner of accessing and processing such data.
While ASK and the Ministry of Justice are preparing bylaws, "Vijesti" sources explain that the law is in line with the Law on Credit Institutions, which stipulates that data that constitute banking secrecy may be made available to third parties when such a possibility is prescribed by law. Professor Dr. Miloš Vukčević, a lawyer, confirms that the laws are not in conflict, but also warns that the new powers should not be interpreted as an unlimited right for ASK to review the entire financial life of officials.
The Ministry of Justice informed "Vijesti" that it is in the process of forming a working team that will prepare and harmonize bylaws with the amended Law on the Prevention of Corruption, which entered into force on August 8 this year.
According to the Ministry's response, the legal deadline for harmonizing these acts is six months from the date the amendments enter into force.
"Particularly considering the provisions of Article 27a of the Law, which allow the Agency for the Prevention of Corruption to access data on the accounts of public officials and members of their common household that constitute banking secrecy, it is necessary to provide a clear and functional normative framework for the exercise of this right, while at the same time fully respecting the regulations governing the protection of personal data, banking secrecy and other issues of importance for the protection of citizens' rights," the Ministry stated.
They added that they will harmonize and adopt the bylaws within the legal deadline.
"This will ensure the necessary conditions for the full and unhindered implementation of new legal solutions, including provisions relating to access to data on the accounts of public officials," the Ministry of Justice announced.
Teacher In his response to "Vijesti", Vukčević points out that Article 27a of the Law on the Prevention of Corruption contains several important limitations - access is allowed for a specific purpose, checking the data reported in the report. He specifies that the Law determines the categories of data that can be accessed and speaks about the individual balance of deposits, as well as the balance and inflows on individual accounts.
Vukčević reminds that the new regulation also specifies that the data obtained can only be used to verify the reported data and cannot be used for other purposes.
"The Agency's authority should not be interpreted as a general and unlimited right to 'comb' the entire financial life of a public official. If the law speaks of balances and inflows, such authority cannot be extended to all outflows, every card transaction, every individual payment or other data not covered by the law without a clear legal basis," said Vukčević.
CBCG: Verification in accordance with regulations
The Central Bank of Montenegro (CBCG) believes that from the point of view of banking secrecy, there is no legal obstacle for ASK to use the new authorization and that it did not require amending the Law on Credit Institutions.
The Central Bank of Montenegro told "Vijesti" that Article 204, paragraph 3, item 18 of that law already stipulates that data and information that constitute banking secrecy may exceptionally be made available to "other persons in accordance with the law."
"Given the aforementioned provision, the Law on Credit Institutions provides for the possibility that data constituting banking secrecy may be made available to other persons when such a possibility is prescribed by law," the CBM stated.
In this case, this special legal basis was introduced by Article 27a of the amended Law on the Prevention of Corruption.
It stipulates that KAS, for the purpose of verifying data from income and asset reports, has access to data relating to the individual balance of deposits of a public official and members of his or her joint household, as well as data on the balance and inflows in their individual accounts in credit and other financial institutions.
"Therefore, in order to exercise the Agency's new powers, it was not necessary to amend the Law on Credit Institutions, since the possibility of making data and information that constitute banking secrecy available was already provided for by that Law, while the specific basis for access to the data in question was established by amendments to the Law on the Prevention of Corruption," the CBM stated.
They reminded that this Law also limits the circle of persons within ASK who can access this data - the right to access is granted to the Agency's director, an authorized official, and an ASK official who, according to their job description, processes the personal data of public officials.
"This data can only be used for the purpose of verifying the data reported in the report and cannot be used for other purposes," the Central Bank of Montenegro emphasized.
Vukčević: Consent is not required
Vukčević confirms that there is no conflict between the Law on Credit Institutions and the Law on the Prevention of Corruption.
He explains that the first law establishes banking secrecy as a rule, but at the same time allows for legal exceptions to that rule.
"Of particular importance is the provision of Article 204, paragraph 3, item 18, according to which data constituting banking secrecy may be made available to 'other persons in accordance with the law'. This formulation obviously points to the possibility of determining other bodies with the right to access banking data through special laws," said Vukčević.
In this specific case, he says, the special law is the Law on the Prevention of Corruption.
"The Law on Credit Institutions establishes a general regime for the protection of banking secrecy and allows for exceptions established by other laws, while the Law on the Prevention of Corruption, as a special law - lex specialis, specifies one of these exceptions and gives the Agency the right to access precisely specified banking data," he explained.
This, according to his interpretation, means that the verification no longer requires special consent from officials.
"The legal basis for access is no longer the will, or rather the consent of officials, but directly the law itself," said Vukčević.
(They) can't "comb" everything
Professor Vukčević assesses that the very concept of the new legal solution is in principle consistent with the right to privacy under Article 8 of the European Convention on Human Rights, but that the method of application must be clearly limited and accompanied by protection against abuse.
According to him, banking and financial data are part of private life, so access by a state authority to that data constitutes interference with privacy.
"It would be difficult to talk about an effective system of controlling the assets of public officials if the possibility of checking data depended on the consent of the person whose assets were being controlled," Vukčević said.
He also points to the judgment of the European Court of Human Rights in the case of “Ferrieri and Bonassisa v. Italy”, dated January 8 this year.
He explains that the case did not concern public officials or an anti-corruption body, but rather the Italian Tax Administration's access to citizens' banking data as part of tax controls.
The European Court found a violation of the right to privacy, but Vukčević emphasizes that the reason was not the mere fact that the authority did not have the consent of citizens.
The problem, he explains, was the quality of the legal framework - the authorities had too broad a discretion regarding the scope and conditions of access, without sufficient procedural guarantees against arbitrariness and abuse, and without effective subsequent judicial or other independent control.
"The message of the European Court is not that a state body cannot access a citizen's banking data without his consent. The Court's message is that such authorization must be regulated by a clear and predictable law, with a precisely defined scope of authorization and appropriate guarantees against arbitrariness," said Vukčević.
Therefore, he believes, the issue of the consent of officials will not be crucial for the assessment of the Montenegrin model.
"The key issue from the point of view of the Convention is not whether there is consent from the officials, but whether the Agency's powers are sufficiently precisely regulated by law, limited to a legitimate purpose and accompanied by effective guarantees against abuse," he concluded.
Professor Vukčević emphasizes that the fight against corruption requires effective control of the assets of public officials.
"But this control must also be carried out within the framework of the rule of law and privacy protection standards established by the European Court of Human Rights," said Vukčević.
ASK prepares rules, Ministry forms team
ASK told "Vijesti" that they have already drafted the Rulebook on the content and manner of maintaining the Register of Income and Assets, while the preparation of the amended form of the report on income and assets is underway.
The Agency Council, they said, at the proposal of the director Kristine Braletić previously adopted the Rules on the work of the ASK in the area of income and asset verification.
The Agency specifically pointed out that Article 27a, paragraph 9 of the Law obliges the Ministry of Justice to regulate in more detail the manner of accessing data on the accounts of officials and members of their households, as well as the manner of their processing.
"We expect this work to be completed as soon as possible, so that the new legal solutions can be fully implemented," ASK announced.
ASK stated that the amendments stipulate that the Agency's acts adopted pursuant to the Law will be harmonized within 60 days of the amendments entering into force.
The Ministry of Justice, however, states that, pursuant to Article 112a of the Law, bylaws will be harmonized with the new solutions “within six months from the date of entry into force of this Law”.
The Ministry announced that it is currently in the process of forming a working team that will be responsible for the preparation and harmonization of by-laws.
"The drafting of these acts will be approached thoroughly and responsibly, taking into account all relevant aspects of their future implementation and in consultation with competent institutions and interested parties," the Ministry of Justice said.
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