The Ministry of Justice of the Republic of Serbia recently published a new draft Law on the Anti-Corruption Agency (the “Draft New Law”). If the Draft New Law is eventually adopted by the Serbian Parliament, it will replace the current Law on Anti-Corruption Agency (the “Current Law”).
The Draft New Law aims to lay down a modern set of rules that would regulate in a more precise and clear manner issues such as responsibility of officials, as well as improve the Serbian Anti-Corruption Agency’s (the “Agency”) efficiency and strengthen its independence.
Another objective of the Draft New Law is to harmonize the legal framework related to the Agency with the strategic documents in the field of fight against corruption such as the National Strategy for Fight Against Corruption in Serbia for the Period 2013-2018 and pertaining implementation action plan, as well as the Action Plan for Chapter 23 – Sub-Chapter “Fight Against Corruption” of the Serbia’s EU accession negotiation process.
Main changes proposed by the Draft New Law
Public Authority Body
The Draft New Law introduces a new legal term: “public authority body” (in Serbian: organ javne vlasti), which comprises a wider scope of state authorities and other legal persons compared to the Current Law. The use of this and certain other defined terms should also help to prevent uncertainties that have been arising under the Current Law such as whether a reference to an official automatically means an official of a public authority body.
Enhanced scope of competencies of the Agency
The Agency will be entitled to file a criminal complaint and request for initiation of misdemeanor and disciplinary proceedings. It will also be entitled to conduct international cooperation in the field of combating corruption, not only jointly with other state authorities, but also on its own.
The Agency will extend its competence on taking principled positions relevant for the interpretation and application of the Draft New Law. Further, the Agency will be entitled to initiate the adoption of regulations, as well as provide a prior opinion on corruption risks in the context of specific draft laws in sectors bearing a heightened corruption risk and on draft laws governing matters covered by ratified international treaties in the field of combating corruption.
The Agency shall also prescribe the methodology for assessing the risk of corruption for regulations in general. As a result of this, all proponents of new regulations shall be obliged to apply such methodology.
The Agency will be entitled to gain a direct and unrestricted access to the documentation and official records of both various public authority bodies, such as the Treasury Directorate and the Serbian Business Register Agency, and other legal entities and entrepreneurs.
Rules related to public officials
At the time of assuming a public office, public officials will be obliged to file reports to the Agency not only about their assets and income, but also about assets and income of their family members such as parents, adoptive parents, children, adoptees, regardless of whether they live together or not. On the other hand, banks will be obliged to provide, upon request of the Agency, information about accounts held by public officials and their related persons as well as their business relations with the bank (the term “business relations”, however, is somewhat vague and it may result in different interpretations in practice).
While in office, a public official will not be allowed to use the information he/she obtains in the capacity of the public official for the benefit of himself/herself or some other person or with the purpose to cause a damage to others, except where such information is also publicly available. Also, during this time, a public official will not be entitled to provide consulting services to legal entities and natural persons on issues related to his/her official position, unless he/she would be obliged to do so under the relevant circumstances or rules. Furthermore, a former public official will be prohibited to enter into a business relationship with the public authority body in which he/she was acting as a public official within two (2) years from the date of termination of his/her work performed in the capacity of a public official.
The Agency will be entitled to initiate proceedings in relation to violation of relevant provisions and requirements set out in the Draft New Law against a public official based on an anonymous notification that has been received by it. Also, the Agency will be entitled to initiate ex officio proceedings over potential corruption allegations against a public official in case of existence of the grounds for suspicion that an act of corruption has been committed within a public authority body.