Draft Law Amending the Law on Prevention of Corruption

Expanding the range of public officials is positive and essential for the Agency to act within its mandate. However, there is a risk that a large number of persons will be registered as officials while most of them hold no real or de facto power - and that the Agency, given its lack of capacity and technical resources, will not be able to oversee them all.

It is therefore essential to strike a balance: those who make the most important decisions for society should be under constant Agency oversight, rather than the Agency's reports being reduced to statistics about a “random sample” of officials whose actual power is less than their office, while those with the greatest influence - but a less prominent title - remain beyond oversight.

The original solution (no time limit) was poor and open to abuse, since the National Assembly need not, and cannot always, elect a new director on time, so the incumbent's mandate could be extended indefinitely.

The second draft improves this - it introduces a one-year limit and the appointment of an acting director from among the assistants. CRTA still considers one year too long (no more than six months would be more appropriate) and warns that the acting director's mandate is not time-limited, which again leaves room for abuse.

The amendments to Article 50 are an improvement, but certain provisions leave room for varying interpretation and could perpetuate the Agency's past practice of reading provisions in officials' favour. Further clarification is needed:

• Public appearances. The presumption that an official presents the body's position “unless they unambiguously” signal otherwise is not precise enough. It should be clearly prohibited for an official to take part in a political entity's party activities in their official capacity, and it should be specified when an official is deemed to be acting on behalf of a party (party insignia, flags, the name or number of the electoral list).
• Social-media accounts. A positive novelty - until now officials have claimed their accounts were “private” even while posting both authority activities and party content on them. The fact that accounts are run by other persons or administrators must not be an exonerating circumstance.
• Prohibition of promotional activities. An improvement, but the prescribed exceptions are too broadly set and open to abuse and selective interpretation; the conditions for applying them should be further specified.
• Definition of “promotional activities”. Insufficiently precise - an official can claim that an activity was not aimed at influencing voters but served some “public-benefit purpose”, which the Agency often accepts. The provision should be reformulated so that the prohibitions are clear.
• Working hours. Officials as a rule have no standard working hours; the provision should be clarified to prohibit political activity while the official is acting in an official capacity.

Conclusion: the draft is a step forward, particularly on social media and on limiting officials' campaigning, but several provisions remain insufficiently precise and - given past practice - require further normative clarification; ODIHR's recommendations are a good mechanism for this. Attention should also be paid to procedural deadlines: they must be urgent and short during the campaign, yet still allow the official to respond and the Agency to gather evidence - a five-day deadline without the possibility of a hearing could lead to unlawful decisions.

The second draft brings concrete improvements: an obligation on public authorities to notify the Agency of promotional activities, with publication of a list, and an obligation on media to correct the false presentation of officials. Still, the amended definition ("creating a favourable perception") remains too broad, no sanction is provided for media, and it is unclear whether the Agency substantively reviews the conditions upon receiving notification or merely records the activities.

The second draft substantially improves the solution: mandatory monitoring of the President and members of the Government, and combining the random sample with a risk assessment, directly address CRTA's main concern and ODIHR's recommendation, along with greater transparency of the findings.

What remains open, however, is that monitoring is limited to the period after the candidacy deadline - the misuse of public office and resources is possible before that point too, so some irregularities in the most important part of the campaign could remain outside oversight. It is also important that the weekly findings do not stay at the level of statistics, but allow insight into the specific activities of officials and the Agency's response.

Advantage: the Agency is now required, where there are no grounds to initiate proceedings, to issue a formal decision with the possibility of appeal. This strengthens legal certainty and removes the past practice of deciding by letters and “notices of outcome”, which did not comply with the Law on General Administrative Procedure (ZUP).

Shortcoming: the draft does not clearly enough regulate the Agency's time limits in cases initiated ex officio and by complaint - in particular the deadline to open and to conclude proceedings - which leaves room for inconsistent and potentially ineffective application.

The 15-day deadline for the Agency's Board to decide on appeals during the electoral period is too long and does not ensure a sufficiently swift response in the context of election timelines; shortening it to 7 days should be considered. An urgent deadline should also be set for the Administrative Court to act in campaign-related cases, so that judicial protection is effective in the real time of the electoral process.

In addition, to avoid past problems in application, it should be explicitly provided that the complainant has the right to appeal to the Agency's Board, for legal certainty and consistent practice.

It is a shortcoming that the draft does not require the publication of the Agency's Board decisions on the Agency's website, which reduces transparency and public access to information. Nor is there an obligation to publish Administrative Court decisions, even though these are crucial for understanding practice and for reviewing the legality of the Agency's work.

The clarification relieves the professional service and lets it focus on petitions relevant to its work. The second draft further eases the requirement - a suspicion of corruption is enough, without attached evidence - which is in line with ODIHR's observation that the complainant should not be required to prove wrongdoing. The provision should strike a balance between petitions that can be acted upon and those that are unclear or lack the information needed to act.

The amendment raises questions of interpretation and application. The draft does not define what is meant by the “same public office” (the same type of office, an office in the same body, the same post, or an identical function with the same competences), leaving room for varying interpretation and for avoiding the obligation in some situations, such as moving from acting status to a full mandate.

Nor is the aim of the restriction clear: if there has been no change in the data from the previous declaration, there is no obvious justification for treating officials re-elected to the same office differently from those immediately appointed to a different public office.

The formulation “for any year after that declaration was filed, in the period up to the filing of a new declaration or the start of the review of the declaration” is complex and imprecise, and should be simplified and defined more clearly in normative terms. Particularly problematic is the undefined notion of “the start of the review of the declaration”, which the law does not define and which can be interpreted variously (the annual plan, the start of data collection, or the formal opening of a case), while in practice the official need not be aware of that stage - opening the door to legal uncertainty and potential abuse.

The way a “change in the structure of assets” is defined is not adequately regulated within this provision, and would have to be precisely defined in the law or another relevant regulation. CRTA assesses that these changes are a step backward relative to the existing rules, because instead of increasing legal certainty they introduce further ambiguity and make application harder. ODIHR provided its most detailed guidance on asset declarations; its implementation in the new text is yet to come.

The measure increases transparency.