6 June 2023 –
A new report by Transparency International Bosnia and Herzegovina finds that Bosnia and Herzegovina has put in place provisions for the prevention of corruption (Chapter II of the UN Convention against Corruption – UNCAC), but a lack of political will and limited capacities of institutions hinder their effective implementation in practice. The report is intended as a contribution to the UNCAC implementation review process in its second cycle, produced with technical and financial support from the UNCAC Coalition.
Establishing a fairly complex governance structure, the Dayton Peace Agreement divided Bosnia and Herzegovina into two entities that each have a high degree of autonomy, Republika Srpska and the Federation of Bosnia and Herzegovina. Additionally, the District of Brčko operates as a self-governing administrative unit under the sovereignty of Bosnia and Herzegovina.
Anti-corruption strategies and action plans have been adopted at all levels of government in Bosnia and Herzegovina, but they are outdated and lack implementation. While there is anti-corruption legislation in place on issues such as access to information, political financing, conflicts of interest, and whistleblower protection, amendments to the laws need to be made to close existing loopholes. While Bosnia and Herzegovina proactively promotes transparency at the state level, there are certain limitations to the right of access to information such as the lack of an independent body that decides on appeals to rejected access to information requests. Advances in anti-corruption efforts have in many cases been the outcome of autonomous activities of civil society. At the institutional level, the absence of political will and the lack of capacity and independence of anti-corruption bodies, particularly at the lower levels of governance, prevent reforms necessary for the effective implementation of the UNCAC in Bosnia and Herzegovina.
The official second cycle UNCAC review process in Bosnia and Herzegovina was scheduled to begin in 2016/17 and has meanwhile been completed. The country report, executive summary, and governmental experts list are available on Bosnia and Herzegovina’s UNODC Country Profile page, while the self-assessment checklist has not been published. A country visit by peer-reviewing countries North Macedonia and Trinidad and Tobago took place in October 2017. A whole civil society day was organized as part of the country visit without government representatives present, which is a best practice at the international level.
For all the detailed findings, read the full civil society parallel report in English. A translated Bosnian version of the report is forthcoming.
Preventive Anti-Corruption Policies and Practices
In accordance with its constitutional set-up, the governance system in Bosnia and Herzegovina is highly decentralized, with each entity having its own constitution, president, government, parliament and judiciary. As a result of the decentralized system, anti-corruption policies and strategies are adopted in such a manner.
Until the end of 2019, all levels in Bosnia and Herzegovina adopted Anti-Corruption Strategies and Action Plans. In a process that included representatives of institutions from all levels of governance, academia and civil society, the Agency for Prevention of Corruption and Coordination of the Fight against Corruption drafted a new Anti-Corruption Strategy and Action Plan at the state level for the period 2020-2024. However, the absence of political will for anti-corruption reforms constitutes a serious deficiency. The new Anti-Corruption Strategy is still not adopted and currently, there is no valid Anti-Corruption Strategy at the state level.
Preventive Anti-Corruption Bodies
The Agency for Prevention of Corruption and Coordination of the Fight against Corruption (APIK) is an independent and autonomous administrative organization and serves as a central body for the prevention of corruption which reports to the Parliamentary Assembly of Bosnia and Herzegovina in accordance with Article 6 of the United Nations Convention against Corruption.
Besides the APIK, there are anti-corruption bodies at the lower levels of governance in Bosnia and Herzegovina which are in charge of the creation, monitoring and implementation of anti-corruption policies and strategies. These are established as “ad hoc” bodies that lack adequate independence in the context of the provisions of the Convention and lack capacity, considering the complexity of the activities related to the prevention of corruption.
Public Sector Employment
Laws on the civil service at the state and entity levels regulate the legal status of civil servants in institutions at all levels. The legislation stipulates that the recruitment process as well as the professional career advancement of a civil servant is based upon open competition and merit. The Law on the Civil Service does not differentiate the position with respect to the risk of corruption and rotation in civil service is only possible through promotion, or internal or external transfer.
Civil service agencies provide training for public officials with anti-corruption responsibilities. However, there is a lack of clear procedures for selecting and training of officials for jobs identified as vulnerable to corruption.
The Office for Audit of Political Parties Financing within the Central Election Commission (CEC) is responsible for the control over political party financing. The Election Law establishes expenses ceilings for political parties, coalitions and candidates taking part in election campaigns. According to the Law on Political Financing, political parties are obliged to submit annual financial reports, as well as post-election financial reports to the CEC. As the Central Election Commission only has the authority to verify the accuracy of income, but not of other submitted data, it is necessary to establish an audit of expenses.
There are shortcomings in the law that open up space for numerous abuses of public resources. Some holders of public offices who ran for and obtained a position in elections use their position for personal or party promotion, and Transparency International BiH has long warned that party functions completely “merged” with public functions during the election campaign.
Codes of Conduct, Conflicts of Interests and Asset Declarations
The Code of Conduct governs the rules and principles of good conduct of civil servants in Bosnia and Herzegovina. The Code contains rules and principles of good conduct of civil servants and informs citizens about the behavior they are entitled to expect from public officials. Similar regulations are adopted at the lower levels of governance.
Conflicts of interest are governed by conflict of interest legislation enacted at the different governance levels of Bosnia and Herzegovina. The authority for the application of the law at the state level was placed on the Commission for Deciding on Conflicts of Interest, which is extremely politicized due to its composition and decision-making methods. The law covers only an extremely narrow circle of persons and functions and contains a number of other shortcomings such as a lack of provisions on the submission of property records and control over them and a lack of detailed restrictions regarding the ownership of private companies that do business with the state. As for state-level law on conflicts of interest, the law does not provide for an independent body for deciding on conflicts of interest in accordance with international standards and the Council of Europe’s Group of States against Corruption (GRECO) recommendations.
The elected and appointed officials in the governmental bodies of Bosnia and Herzegovina are obliged to submit asset declarations to the Central Election Commission. The forms of asset declaration are available to the public on the platform Asset Declarations of Elected Officials. However, the CEC is not responsible for the accuracy of the information contained in the form and there is no validation of the provided information.
Reporting Mechanisms and Whistleblower Protection
The issue of whistleblower protection in Bosnia and Herzegovina is regulated by the laws at the state, entity and Brčko District levels. The Law on Whistleblowers Protection in institutions of Bosnia and Herzegovina foresees the so-called administrative protection through an external model, or protection provided by a special independent institution, the Agency for Prevention of Corruption and Coordination of the Fight against Corruption. A similar legal solution is in force in Brčko District. In the Republika Srpska, the area of protection of corruption whistleblowers is regulated by the entity law which provides guaranteed protection for all employees in the public and private sector.
There is no adopted law on whistleblower protection in the Federation of Bosnia and Herzegovina which means that potential whistleblowers do not have any kind of legal protection. Further, there is a need for amendments to the Law on Whistleblowers Protection at the state level to bring it in line with international best practice standards.
Bosnia and Herzegovina has a decentralized procurement system. Individual ministries, agencies and institutions are responsible for their own procurement. The Public Procurement Agency is the body responsible for the overall coordination of procurement. The legal framework defines clear procedures for participation in the tender procedure and defines the process of checking the bidder’s qualifications and the conditions the bidder has to fulfill in order to be qualified for participation in public procurement.
A lack of information on the implementation of contracts is often the main shortcoming in covering the entire procurement cycle, as this information best shows the actual costs and quality of works, services and procured products. Any deviations from the agreed conditions or the Law on Public Procurement in the phase of contract implementation, as one of the important phases of public procurement, put other bidders in an unequal position, which renders the entire system of public procurement meaningless.
Access to Information and the Participation of Society
Bosnia and Herzegovina has adopted legislation on access to information at the state and entity level. There is a policy of proactive transparency at the state level and Bosnia and Herzegovina is part of the Open Government Partnership initiative. Further, the application “eKonsultacije” provides citizens and representatives of civil society with complete and timely information about the process of passing certain legal acts and ensures a reliable communication channel for civil society participation in the creation of public policies.
Nevertheless, there are repeated concerns about the effectiveness of both, the proactive disclosure of information and responding to requests from citizens. Deficiencies in the implementation of the laws are noted by the Ombudsman. The large number of complaints to the Ombudsman by citizens indicates that the enjoyment of the right of access to information is significantly hampered, despite the fact that special laws have been applied for more than a decade. Another serious deficiency consists in the fact that in Bosnia and Herzegovina, there is no special independent body that decides on appeals in the case when applicants‘ requests are rejected.
Judiciary and Prosecution Services
There are four entirely independent judicial systems in Bosnia and Herzegovina, both in terms of their organization and competence. The High Judicial and Prosecutorial Council (HJPC) is the single self-management body for the entire judiciary. The mandate of the HJPC covers all four judicial systems and is intended primarily to shield the judiciary from political influence and guarantee the proper functioning of all judicial systems. However, over the past years, the HJPC has begun to become part of the problem it is tasked to avoid due to allegations of politicization and conflict of interest, inefficient organization, as well as failure to implement reforms, leading up to the resignation of its president in December 2020.
A comprehensive legal framework enables the public, either general or professional, to obtain information about the functioning of the judiciary and on the decisions made by the courts. Public access to all court actions is established as a general rule. However, in practice, the culture of transparency and accountability is underdeveloped.
In its report, Transparency International Bosnia and Herzegovina makes several recommendations to the authorities to ensure the full implementation of the UNCAC in Bosnia and Herzegovina, among them:
- Urgently adopt an Anti-Corruption Strategy and Action Plan at the state level.
- Ensure that the necessary material, human and financial resources are available to the APIK and other anti-corruption bodies on entity and cantonal levels to carry out their functions.
- Improve the monitoring of political party financing and election campaign funding by strengthening the capacities of the Audit Department within the Central Election Commission.
- Adopt clear legal solutions regarding the abuse of public resources in election campaigns.
- Publish online information on the assets and interests of elected officials, executive office holders and advisors who fall under the Law on Conflict of Interest, as well as public servants while respecting personal data protection legislation.
- Strengthen the legal framework related to conflicts of interest by establishing independent bodies for deciding on conflicts of interest at all levels of governance in accordance with international standards.
- Adopt a law on whistleblowers protection at the level of Federation of Bosnia and Herzegovina in accordance with international best practices and adopt necessary changes of legislation to establish protected reporting channels for whistleblowers at all levels of governance in Bosnia and Herzegovina.
- Increase the capacities of the Public Procurement Agency and Procurement Review Body in charge of monitoring the implementation of the law.
- Harmonize criminal laws with regard to criminal offenses of abuse in public procurement, with special emphasis on the equal responsibility of contracting authorities and bidders.
- Ensure that information on the implementation of public contracts is publicly available.
- Establish an independent specialized body that decides in cases when applicants’ requests for access to information are rejected.
- Adopt changes in the law at all levels which would include obligatory proactive transparency, in accordance with the Policy and Standards of proactive transparency; and harmonize laws on freedom of access to information at all levels of governance.
- Implement the concept of the “eKonsultacije” application at lower levels of governance in Bosnia and Herzegovina, which would oblige institutions to obligatorily undergo public consultation processes for all legal acts prepared by the institution.
- Adopt changes of the Law on the High Judicial and Prosecutorial Council related to the integrity of the judiciary, in accordance with reports published by the EU, related to the improvement of the rules regarding appointment, disciplinary responsibility, career development and conflict of interest of judges and prosecutors.
- Increase the level of transparency of disciplinary procedures by the High Judicial and Prosecutorial Council and the publication of information during the disciplinary process.