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.
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 Agency have 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.
Component 2: Prevention of corruption. The Strategy identifies 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 Strategy is 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.
Component 5: Coordination and implementation of the Strategy. A very important part of the implementation of the Anti-Corruption Strategy 2009-2014 concerns the harmonization of activities of all relevant institutions in the realization of the set legal-political objectives in this area. In that sense, it was necessary to ensure the appropriate normative, institutional and other preconditions for as effective as possible coordination and overall implementation of strategic activities. So far a partial progress in securing the mentioned preconditions has been made and it mostly pertains to the normative aspects of coordination of the Strategy and the Action Plan. Namely, the Law on Anti-corruption Agency stipulates that this body will coordinate and monitor the implementation of the Anti-Corruption Strategy and the corresponding Action Plan, and it will have an additional advisory and instructive authority which pertains to the implementation of these documents in practice. Substantially, coordination should be realized through several, by their nature different but mutually harmonized measures, which consist of: (a) coordination of the corruption prevention policies in all BiH institutions, (b) coordination and monitoring of the implementation of these measures, (c) development of the coordination system, (d) development of cooperation with the non-governmental sector, (e) better communication and cooperation between the key stakeholders and (f) creating the basis for the future legal-political documents for the continuous fight against this phenomenon. In any case, the carrier of these activities should be the Anti-corruption Agency which is nowadays only to begin performing tasks from its jurisdiction, including the coordination of the implementation of the Anti-Corruption Strategy.
Component 1: Capacity-building of the Agency for 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 awaiting) 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.
The time limit 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.
Based on legally defined committments in accordance with the Action Plan, it is evident that the biggest problem is the delay in establishing capacities at BiH Parliament.
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At its 75th session in April 2010, the BiH Parliamentary Assembly provided its response concerning the conclusion that stipulates that “the upper chamber is obliged to nominate at the next session the acting Director of the Anti-corruption Agency, who is to perform the function until the director has been nominated.“
The nomination of the acting director of the Anti-corruption Agency (following the conclusion of the upper chamber at its 75th session held on 7 April 2010) was continued at the next session of the BiH Parliamentary Assembly when the BiH Deputy Minister of Security, Mijo Krešić assumed the responsibility of the acting director of the Anti-corruption Agency pursuant to Law on Anti-corruption Agency (BiH Official Gazette, No. 103/09) not later than 1 August 2010.
At the 82nd session, the conclusion of the upper chamber from the 76th session held on 21 April 2010 was amended following the incumbency of the Security Deputy Minister, Mijo Krešić as the director of the Anti-corruption Agency. Thereupon, the time limit of 1 August 2010 was deleted, which ensured the opportunity to act in an irresponsive manner and cause delay in the selection of the director of the Agency and establishment of its normal functioning.
It should be noted that the nomination of the director of the Agency and his two deputies is still underway and it is not known when the procedure will be completed. Among 20 applications received by the Commission, it was decided at the session that two applications were not duly submitted; therefore, the Commission examined 18 duly submitted applications and decided that 13 candidates fulfilled the open competition requirement, while 5 of them did not fulfil them. Those who fulfilled the requirements are the following: Izet Nizam, Zoran Đerić, Milanko Renovica, Sead Lisak, Radoje Badnjar, Jasmin Jaganjac, Sreto Pekić, Ramiz Huremagić, Blanka Benković, Dragan Slipac, Vukašin Crnjak, Ismail Sarić and Milan Krulj. The applications of all candidates were approved by Central Electoral Committee on 31 August 2010. Despite the plan to select the director by mid September, it has not happened so far.
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 Agency have been planned for the period after October 2010. 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, in part, due to General elections activities that took place in October 2010.
Instruction on clear time limit for each stakeholder should be given as well as explanation sought for failure to respect the time limits.
The following part refers to the activities to take place with respect to other activities of capacity building of the Anti-corruption Agency
Measure 1.2.
Ensuring tangible resources for the functioning of the Agency, including, but not limited to the following: office premises, budget.
Although the Agency’s head office was situated on the premises in the territory of Istočno Novo Sarajevo municipality, on SIPA premises, working conditions still seem to be dissatisfactory. This primarily refers to the fact that in the existing documents of the framework budget 2010 – 2012 no budget resources have been envisaged for the functioning of this Agency and the number of staff is vague, too. The BiH Anti-corruption Agency should become operative with its full capacity by mid next year as the Agency acting director, Mijo Krešić said.1
Measure 1.3.
Recruitment of the Agency staff in order for the Agency to commence its efficient functioning
As already said, it is not expected that this measure will be applied in due time as the rulebook and the systematisation of posts are yet to be developed. However, should the same procedure as for the nomination of the director and his deputies be applied, there will be no capacity of this Agency for a long while in future.
Measure 1.4.
Establish efficient training programmes in order to improve Agency staff’s skill so they perform their tasks in efficient and professional manner.
Since no staff has been recruited, no training programmes are in place. Only after their recruitment and assessment of their capacity, the training programme may be developed. Given the experience so far, this time limit (December 2010) will be extended by at least one year.
Measure 1.5.
Adopt the code of conduct of the Agency and define the code of conduct of the Agency staff.
It is not realistic that the time limit for this measure (December 2010) will be respected due to already mentioned problems regarding the nomination of managers and other employees.
Measure 1.6.
Develop and adopt all relevant guidelines, standard rules of procedures and instructions for the Agency staff.
It is not realistic that the time limit for this measure (December 2010) will be respected due to already mentioned problems regarding the nomination of managers and other employees.
Measure 1.7.
Reinforcement of the training process within the Agency with the purpose of ensuring a strong organisational culture based on the code of conduct.
This measure directly refers to the measure 1.5., and its realisation may take place following the building of complete capacity of the Agency. The envisaged time limit is realistic should the process of improving Agency capacity be facilitated.
Measure 1.8.
Assessment and monitoring of the implementation of the Strategy; Recommendation of the necessary amendments in consultation with all stakeholders.
This measure also depends on the dynamics of the capacity building of the Agency and realisation of the envisaged activities per components. In that regard, importance of the budget is crucial as well as budget allocations for the Agency in all relevant financial projections of the Finance Ministry (Framework Budget Document, annual budget, plan of necessary investments, etc.). However, it should be noted that, if this dynamics continues, few activities from the original strategy will be realised and the original time limit (December 2011) should rather be extended by at least 6 months.
Measure 1.9.
Development and implementation of anti-corruption action plans in various fields.
This is one of the most important elements of the Strategy implementation and requires Agency’s dedication (Agency that will have become staffed and ready to act). This measure is directly related to the activities of the Ministry and other public institutions concerning the development of the anti-corruption action plans (Measure 2.6). The time limit for this activity should be harmonised with the time limits and capacities within the ministries and other public institutions.
Measure 1.10.
Ensure that the highest trust be placed in the Agency as the anti-corruption body.
If all said activities related to capacity strengthening are realised, the Agency may apply the envisaged measure in the envisaged time limit (December 2012). This primarily encompasses its so far results and the possibility for the public to control the performance and activities of the Agency in a transparent and timely manner. The main obstacle to this may be obstruction related to corruption affairs of the political elite in the country that the Agency may touch upon. Also, the integrity of the director and his attitude towards the functions of the Agency are crucial. It is surprising that even 13 candidates applied for the position as it is not the case in other countries, in other words, it is a “trouble-related function“ if fighting corruption happens for real. As for BiH, it would not be surprising that some political parties do not want to have a director as their partner which cannot be easily confirmed by the approval issued by the CEC.
Measure 1.11.
The Agency coordinates the implementation of action plans for the purpose of more efficient fighting corruption and prevention of corruption in various fields.
This measure, envisaged for mid next year, is sort of non-realistic taking into account that the establishment of the new BiH and entity governments is expected in the following period. Given the fact that since the moment of the adoption of the Strategy to date no action plan of the entities and Brčko District has been developed, its realisation is seriously hampered. Therefore, it is first necessary to elaborate the existing entity (including Brčko Distrikt) action plans with regard to the Anti-corruption Strategy that will be vertically and horizontally harmonised and have the framework time limit in accordance with the National Strategy.
Measure 1.12.
The Agency is able to conceive and implement the modern anti-corruption programmes and corruption awareness raising programmes.
Taking into account the time limit for this measure (December 2012), the measure seems to be realistic and should perhaps take into consideration the status of the existing civil society that is active in this field. As a matter of fact, all countries agreed on the common approach of the public and civil sector concerning the anti-corruption programmes and corruption awareness raising programmes. If this measure stipulates that the Agency should have staff available for all segments, there may emerge the risk of oversizing and cumbersome administration within the Agency itself. Anyway, the realisation of the proposed measure depends on the future capacity of the Agency.
Component 2: Prevention of corruption
Corruption is an omnipresent phenomenon in Bosnia and Herzegovina. The evidence for this are various surveys characterised by different level of systematisation and objectiveness and corruption is the first item 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).
Describing anti-corruption activities in the neighbouring Republic of Croatia, Kregar (2008) states that they have been through various phases in their efforts to reduce corruption in the country and to make a shift concerning the value system; the same description can be used in case of Bosnia and Herzegovina and its anti-corruption activities taking into account somewhat similar social circumstances of the emergence and development of this new democracy. Thus, Kregar divides definition and experience of corruption into three phases.
First phase refers to so called recognizing, that lasts from the gaining of independence until the end of 1990's when corruption was seen as “a morally relevant but not a political problem“ (p. 3). This phase is dominated by moral panic and by experience of corruption as something that has always existed and become in particular widespread because of the war and something hardly controllable; better regulation was in principle considered as a remedy, therefore corruption is considered to be a technical (lack of adequate regulation) and criminal problem (corruption should be suppressed by the response of the relevant authorities including criminal persecution in certain cases). Schmidt (2007) states that in this phase corruption becomes a globally relevant issue; however, most of the discussions end by conclusions that something should be done, without any certain and specific solutions.
Second phase has begun in the new millennium and lasts to date. What is significant about it is the recognition of the problem and attempt to solve it. However, the question remains what is in the domain of the law and institutions that should fight corruption. Therefore Kregar names this phase as the phase of ”normative optimism and institutional engineering” (p. 4). Corruption in this phase is seen as a political problem and attempt is made to address it adequately; the opinion is shared by other commentators of anti-corruption activities.2 The attempts include the passing of the Law on Conflict of Interests or amendments (e.g. from 2003 in the domain of criminal code) of legislation by establishment of special sections for corruption and corruption related offences in the police and judicial authorities and passing of anti-corruption strategies that were supposed to bring about a shift at the level of the political community as a whole. However, all efforts were rather a result of a declarative anti-corruption attitude and support to adjustment to formal EU standards, while little has been done in practice; Kregar states that those were the results of good intentions rather than of systemic endeavours to formulate and implement the national anti-corruption policy. One typical obstacle to anti-corruption activities then emerged in particular. It is a lack of any political will (failure to pass laws, failure to establish and staff responsible agencies and make them capacitated and financially independent).
Finally, a new, third phase should step out of the line of the incoherent policy of fighting corruption and attempt to overcome and address the biggest shortcoming from the previous period. Finally, more acting than speaking is needed. If the biggest issue so far was the lack of political will and determination to address the issue adequately (which in Bosnia and Herzegovina included, inter alia, the lack of serious effort to establish the central institution to monitor the anti-corruption activities), the new phase should start from a sincere admitting that an issue of inadequate addressing corruption exists and that serious effort is to be made (not mere statements) to make a shift in promoting intolerance of corruption and strengthening democratic tools by awareness raising of the public of their own role in the culture of freedom and transparency. In other words, as Kregar says, in this phase ”there is no much use of passing laws, their effect is expected” (2008, p. 9).
Prevention as part of the overall anticorruption efforts
Anti-corruption strategies combine ideologies, law, organisations and institutions in order to determine, detect, prevent and sanction bribery and other forms of corruption in all segments of society (Derenčinović, 2001). Corruption, like any other social phenomenon, is dominated by a number of objective and subjective factors that affect corruption directly or indirectly with different intensity thus causing it to have different forms and characteristics. As the scope and characteristics of corruption are determined by various factors, the concept of fighting corruption consequently should include various measures to be undertaken by various stakeholders. Thus, corruption fighting measures should include economic, political, social, cultural and other measures. Isolated cases of incompatible and non-coordinated actions against corruption address the issue partially leaving it unsolved.
As a more or less generally accepted concept of fighting corruption, combinations of preventive and repressive measures have emerged over time: the first ones were targeted to interventions before corruption even appeared and others were targeted to reactions following the appearing of corruption. Preventive measures are of special importance when it comes to fighting corruption. Since the phenomenon is omnipresent in society and the repressive apparatus is limited financially and human resources wise to fight negative phenomena such as corruption on its own, and taking into account humane aspect favoured by social policy (especially crime prevention policy), professional public have reached the consensus that prevention is extremely important part of fighting corruption (Dölling, 2007). Preventive activities can be undertaken at general social and institutional level (both in public and private sector). As for those at social level, they tend to disapprove and reject corruption, while those at institutional level tend to adopt code of conduct for civil servants in the form of working guidelines or ethical codes (Dölling). In his survey of anti-corruption preventive actions in CEE countries, Schmidt (2007) states that the experts’ position is that repressive actions should be complemented by ”human capital”, or the participation of the public in creating and implementing better anti-corruption programmes of education and training. In light of that, UN Office on Drugs and Crime states that only prevention programmes that are indispensable and useful for ordinary people have chance to result in a long-term shift in anti-corruption activities (United Nations Office on Drugs and Crime, 1999); the advantage of this approach is ”achieving broader consensus and feasible [unique] social agreement as a basis of reform and priority and programme of development“ (p. 3).
As repression alone is incapable to address the pervasive and complex nature of corruptive practices and the perverse system of values that goes along with it, prevention is especially important for Bosnia and Herzegovina. Prevention of corruption implies the mobilisation of a number of various social subjects acting to prevent corruptive practices, which, unlike traditional repressive measures, are not limited only to actions of establishing responsibility for committed offences, but rather eliminate the cause of such practices thus preventing them. Therefore, importance of prevention for Bosnia and Herzegovina is clear, especially if it involves practically all stakeholders (civil society, media, educational institutions and citizens), not only public institutions (the activities of which are costly and unpredictable). However, the role of the latter is crucially important.
This paper aims to analyze how far Bosnia and Herzegovina has gone concerning fighting corruption taking into account the measures proposed in the new Anti-corruption Strategy (2009 – 2014). As the Strategy identifies 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, the paper follows the referenced structure and refer to the time limit (beginning of the last quarter of 2010). Although the realisation of the majority of objectives (especially short-term objectives) refers to the last quarter of 2010, and also years after writing the report, if the results are to be achieved, the activities must be undertaken continuously and in phases, especially given the fact that the subject is complex and needs to be addressed in detail. Thus, some of the objectives to be realised months after writing the report are supposed to be analyzed.
Reform of the public sector, transparency and accountability
In this segment of preventive activities, as given in the Strategy itself, more efficient administrations are to be established (e.g. by eliminating patronage networks, nepotism, and favouring), as well as better transparency and responsibility in work. It involves 13 short-term objectives, 5 medium-term objectives and some long-term ones. It is interesting that the author of the Strategy provided measures that more or less coincide with the objectives; therefore the activities to be undertaken overlap with the objectives and are tautologically presented. It would be more correct to provide several activities whereby one objective is to be achieved and to be as more specific as possible. However, a logical approach like this was ignored and the Action Plan for implementing Anti-corruption Strategy (2009 – 2014) reflects the position that repeating an objective through a measure is sufficiently clear.
Anyway, 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.
Therefore, the measure 2.1. from the Action Plan including 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. At the time of writing the Report, the Anti-corruption Agency is not functional. Therefore, preventive activities to be undertaken by the Agency are not possible. According to the letter of the BiH Council of Ministers and Public Administration Reform Coordinator's Office in which the writers of the report addressed the issue, namely, ”no activities have been started recently in order to develop one such document”, and the activities are foreseen to take place once the Anti-corruption Agency becomes functional. The BiH Council of Ministers was also designated as a focal point for data collection regarding the (2.2.) measure of the Action Plan to deal with the analysis of the implementation of the Law on Access of Information in all institutions at all levels; as this measure was to be implemented by the Anti-corruption Agency that is still not functional, it is not surprising that nothing has been done in that respect. Finally, the modernisation of the public sector can be linked to the activities related to introduction of information technology. As presented in the Strategy itself, ”short-term measures are focused on the modernisation of administration resulting in introducing of the e-government and e-management model” (p. 11). Modernisation of the public administration by improved use of information technologies is a part of the public administration reform in Bosnia and Herzegovina, for which a good-quality monitoring is in place. Thus, the PARCO Semi-annual Progress Report (monitoring of the implementation of the Action Plan of the 1st Public Administration Reform Strategy in BiH) for the period from 1 January to 30 June 2010 reads that the overall progress regarding the information technologies is 32.26 %. The Report is quite informative concerning the activities undertaken and provides information about the commencement of development of the document within the ”Software Policy in BiH institutions”, about the fact that the Project Promotion of IT use in public administration is in phase of secondary research and data collection for the purpose of the development of project documentation, and about the fact that the BiH Council of Ministers adopted the Decision on electronic management and e-government and Council, and about the fact that e-health strategy implementation has started as well as electronic processing of registers and land registers. The foregoing and the fact that by end 2009 the decision was made concerning the implementation of models for access to court cases via Internet and the Rulebook on the authorised access to court cases via Internet for the purpose of the better examination of individual cases via Internet, indicate that short-term modernisation measures have been partially achieved, especially taking into account that most of the documents initiating the introduction of e-government have been passed and political will has been ensured.
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, under section 2.6. of the Action Plan, to be passed by all the ministries and institutions at all government levels, no systemically collected data are available. As the indicator of the measure implementation is the report submitted to the Anti-corruption Agency concerning the implemented plans, it seems that no data concerning the plans are available. Also, no information has been released through media or otherwise about this issue. No public opinion survey under section 2.5. has been done in order to identify areas where corruption is most frequent. No activities have been undertaken in order to introduce new, unique rules on receiving and giving gifts in office by civil servants.3
Activities concerning protection of parties reporting corruption and generally creating an atmosphere where reporting corruption is not considered a denunciation (Bannenberg, 2002) or is not otherwise disapproved, but instead seen as a part of code of conduct and general well-being, are slow. By mid 2010, all ministries and other BiH institutions at all government levels were supposed to have sealed post boxes, special purpose telephone lines, that is, e-mail addresses for individuals’ reporting – including anonymous reporting. 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. The sole example is the Republika Srpska Government that at its 139th session on 3 September 2009 adopted the Code on amendment of the Code of Conduct of Republika Srpska civil servants, thus establishing the rules for civil servants concerning the reporting of cases where suspicion of corruption exists in RS civil service, as well as protection of those reporting suspicion of corruption. As already identified, (Datzer, 2007), which is presented in the beginning of the Strategy, the existing procedures are not adequate to encompass protection against punishment or disfavouring of parties reporting corruption; therefore the issue of encouraging reporting of corruption without fear of revenge in Bosnia and Herzegovina remains inappropriately addressed.
Lobbyism is an advocating activity aimed at interfering with legislators or officials by individuals or stakeholders. Although often mentioned in negative contexts, it is a part of everyday political life and parliamentary democracy. Nowadays, lobbyism is not only considered as an expression of the legitimate participation of subjects in political decision making but also an articulation of expert and professional opinion and contribution in achieving better quality of political processes. It is usually regulated by laws or by-laws. Thus, for example, the Annex of the EU Parliament 10th Rules of Procedure reads that lobbyists are obliged to offer represented interests to the members of Parliament, their associates and officers. Public advocating in the form of lobbyism in Bosnia and Herzegovina is underdeveloped. No activities have been undertaken to improve this under the section 2.8. of the Action Plan.
It is not quite clear what the section 2.9. of the Action Plan refers to. It foresees the introduction of mandatory declaring by all legal entities participating in the public procurement procedures. The Strategy in section 10 of the short-term objectives for prevention of corruption foresees that ”all legal entities – parties to public procurement procedures, threatened to be dismissed if they fail to declare, should declare themselves about their connections with a public institution implementing the public procurement procedure, that may bring about suspicion of corruption”, and the Action Plan, though, as an indicator of the implementation of the measure states ”the list of legal entities was adopted and published in BiH official gazettes and Agency web site”. It does not seem to be clear if the Strategy pleads for a change of the norm while the Action Plan pleads for something else. Despite the fact that the indicator of achieving the objective does not correspond to the objective, certain developments are evident. First, as for the requirement for all parties to public procurement procedures to declare themselves regarding the ownership, the requirement is already incorporated in the BiH Law on Public Procurement providing for the contracting authority to request the court register certificate or equivalent issued by the relevant court or administrative body in order to be able to assess the qualification of the potential supplier of goods or services or a potential conflict of interests. Though in case of detailed informing of the public in the form of a list of legal entities – parties to public procurement in Bosnia and Herzegovina, the BiH Public Procurement Agency since 2006 publishes annual reports on contracts concluded in public procurement procedures in the form of concise information on public procurement procedures in Bosnia and Herzegovina. Since the beginning of 2010, an electronic system has been in use for the preparation and submission of reports on contracts awarded in public procurement procedures, and the overall monitoring of the application of Public Procurement Law is performed by the BiH Public Procurement Agency. Detailed lists of parties to public procurement procedure are not made available to public. Instead, corruption registers are in place. Corruption registers exist in some countries (e.g. Federal Republic of Germany). However, they refer to registers kept at regional/land level regarding the legal entities who were involved in corruption affairs or collusions regarding tenders, therefore they are prevented from participating in public procurement procedures in a certain period (often between six months and two years), but they are not removed from the list of all parties to public procurement as is potentially suggested in the Action Plan. Also, commonly used practice is the informing of the public regarding the detected violations of public procurement procedures (as explicitly defined in the Rulebook on monitoring of public procurement procedures that is in force in Bosnia and Herzegovina), but it is not clear if this practice is the issue here. Finally, anti-corruption provisions that stipulate cancellation of contracts or ineligibility of tenders are incorporated in the BiH Public Procurement Law. However, they remain insufficient. Thus, Article 27 of the Law provides for the following: if ”in case that requests or tenders received during the procurement procedure by the contracting authority cause or may cause any conflict of interest, the contracting authority shall, by acting in accordance with the relevant legislation of BiH or related internal rules, ensure that the purpose of this Law is effectively secured.” As a segment of protection, a provision of Article 39 of the BiH Public Procurement Law, stipulates the following: ”The contracting authority shall make it a contract condition, that the supplier to whom a public procurement contract is awarded has no right to hire, to the purpose of performing the public procurement contract, individuals or legal persons that have participated in preparation of the tender documents or were member or invited expert of the Procurement Commission functioning at the respective contract award procedure, for at least 6 (six) months after the conclusion of the contract. ”
The manner of ensuring the protection has not been regulated in detail. Therefore, the introduction of an explicit anti-corruption provision in the public procurement contracts (including the sanction for involvement in corruption) that would regulate this issue (and enlarge the conflict of interests to persons close to the person who participated in the preparation of tender documentation or otherwise involved in the public procurement procedure) would make sense. No activities have been undertaken in that respect.
Section 2.10. of the Action Plan reads that inspection authorities should become one of the key points for cooperation with the Agency. As inspection authorities include supervision departments of institutions, enterprises, etc., as well as physical persons, the text of the Strategy does not specify whether the supervision is internal and/or external. The indicator of the implementation of the measure is determination of the contacts within the government institutions that should cooperate with the Agency. As pursuant to the Law on Anti-corruption Agency, the Agency does not have any investigative authority and the cooperation of the Agency with other authorities and ”contacts within government institutions” (that should refer to anti-corruption contact points within government institutions) are not specified, major part of the Action Plan remains unclear. In addition, as the initiator of the activities in this field is the non-existing Anti-corruption Agency, it seems that the activities concerning section 2.10. have not been undertaken.4
Finally, the Strategy fails to define anti-corruption legislation referred to in section 2.11. of the Action Plan.5 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. The BiH High Judicial and Prosecutorial Council has been for years publishing merged reports on performance of the judicial authorities. However, they have not been divided into categories that would facilitate the conclusion on efficiency of anti-corruption legislation (whatever that may imply) regarding the prevention of corruptive practices.
As for the assessment of the implementation of the MEDIUM-TERM OBJECTIVES 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.
Thus, according to the measure under section 2.21. of the Action Plan ”Public Service Code of Conduct has been foreseen on the basis of the European good practice in order to set unique code of conduct for civil service“. According to available information, passing of the BiH Institutions Civil Servants’ Code of Conduct was foreseen for mid 2010, and it is supposed to include a number of provisions referring to prevention of corruption and sanctions in case of corruptive practices of civil servants. The draft Code of Conduct has been developed and submitted to the institutions for their opinion. However, not all relevant institutions have provided their opinion, and the Ministry of Justice initiated the development of the new text of Code of Conduct; therefore, it is expected to have the new text in place. As the implementation of the measure implies the passing of the code of conduct for civil service it should be subsequently made mandatory for all employees in civil service at all levels in Bosnia and Herzegovina. The measure has not been implemented due to failure to pass the code of conduct.
Also, the measure 2.22. of the Action Plan partly coincide with the previously elaborated measure (under section 2.2.) that involves little progress. Namely, the measure 2.22. foresees the development of Guidelines for implementation of the Law on Freedom of Access to Information in the government institutions at all levels, and the relevant staff training. The indicator of the implementation of the measures is, inter alia, reduction of the number of rejected information requests and more information requests. It has been stated that nothing has been done in that respect. As for the development of the guidelines, it should be borne in mind that the Anti-corruption Agency, that is primarily responsible for the implementation of this measure, has not undertaken any activities. Also, no activities have been identified for general use of the Law on the Freedom of Access to Information in a sense of more information requests and facilitated access to information.
Measures 2.23. and 2.25. from the Action Plan refer to the corruption prevention programmes undertaken at the level of individual authorities and imply not only the passing of programmes consisting of certain objectives and activities to be undertaken, but also planning of training for preventing and fighting corruption in public institutions that is mandatory for all civil servants. The medium-term measure 2.23. coincides with the already elaborated short-term measure 2.6. for which no information on progress is available, that is, failure is expected. Therefore, it can be stated that corruption prevention programmes sound good but nothing has been done in practical terms. Also, no activities have taken place regarding the corruption prevention training.
As already said, legislation related activities for the protection of persons who in good faith report corruption have not been undertaken. Therefore, the achieving of the objectives under measure 2.24. of the Action Plan remained unaddressed.
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 Strategy is end of 2014. However, as for the other long-term measures (identification of weak points within public sector), only sporadic activities have been undertaken.
Anticorruption / integrity plans
This segment of anti-corruption activities addresses 5 measures for the purpose of achieving the same number of objectives and some long-term objectives.
The first four measures (2.12., 2.13., 2.14. and 2.15.) from the part of the Action Plan that addresses anti-corruption plans refer to similar issues from the already elaborated measure 2.6. (development of anti-corruption plans), while the measure 2.12. refers to institution capacity building in order to perform tasks from the plan, 2.13. and 2.14. refer to assessment of risks per areas in order to identify departments/posts mostly affected by corruption and undertake appropriate measures to eliminate/reduce irregularities, and 2.15. refers to the development of the relevant system of indicators in order to ensure uniqueness of standards of assessment of integrity risks/plans. The advantage of the special anti-corruption contact points is a particularly simple identification of points responsible for responding to reporting suspicion of corruption, as well as concentration of knowledge and capability to act in case of corruption and corruption prevention activities. Thus for example, there exist anti-corruption central points in most of the regions of the Federal Republic of Germany as well as the local contact persons for reporting corruption and implementing anti-corruption activities. Experience of Germany indicate that such contact points are less involved in investigating of suspicion of corruption, but are more involved in ”providing proposals for prevention, cooperation in education and training and counselling of employees” (Korte, 2007, p. 301). As neither systemically collected information is available for the measure 2.6. nor information otherwise collected, one may speculate that the issue of capacity building and assessment of corruption risk in Bosnia and Herzegovina has not been addressed or has been insufficiently addressed. As already known, there exist many levels of government in Bosnia and Herzegovina. Therefore, it is plausible that without impetus and coordination of the Anti-corruption Agency, little or nothing can be done.6
The second part of short-term measures of the Action Plan treating anti-corruption or integrity plans refers to the so called integrity testing. That actually means the simulated situation of giving and receiving bribe, where a civil servant or a citizen is subject to testing concerning their respect for social and formal norms. The integrity testing can be used within an organisation in accordance with labour and di