LAWON THE PREVENTION OF CONFLICT OF INTERESTS IN EXERCISING PUBLIC FUNCTIONS("Official Herald of the RS", No. 43/2004) |
I BASIC PROVISIONS
Concept of Conflict of Interests
Article 1
An official shall be bound to exercise public function so as not to subordinate public interest to the private interest, nor to cause conflict between them.
It shall be understood that there is a conflict between public and private interest where an official has a private interest that influences, or may influence, the exercising of his function.
Public Function and Officials the Present Law Applies to
Article 2
In terms of the present Law, public function shall be understood to mean a function exercised by a person - official, on the ground of election, appointment and nomination in the agencies of the Republic of Serbia, an autonomous province, a municipality, a town and the City of Belgrade, and in the bodies of public enterprises established by the Republic of Serbia, an autonomous province, a municipality, a town, and the City of Belgrade.
The conflict of interests in exercising the functions by the Constitutional Court judges, judges, judges deciding on infractions, public prosecutors and deputy public prosecutors shall be regulated by a separate law.
Separate laws shall also regulate the conflict of interests of officials nominated in the bodies of the institutions and other organisations established by the Republic of Serbia, an autonomous province, a municipality, a town, and the City of Belgrade.
Board Responsible for Settling the Conflict of Interests
Article 3
The Republic Board for Settling the Conflict of Interests shall be established for the implementation of the present Law (hereinafter: Republic Board).
The Republic Board shall be an autonomous and independent agency, and funds for its work shall be provided for in the budget of the Republic of Serbia.
II STATUS OF AN OFFICIAL
Basic Rules of Exercising Public Function
Article 4
An official shall be bound to obey the regulations that regulate his rights and duties, and create and maintain reliance of citizens into scrupulous and responsible exercising of public function.
An official must not be in any relationship of dependence towards persons who might affect his impartiality in exercising the public function, nor shall he use the public function to obtain any kind of benefit or favours for himself or a related person.
In terms of the present Law, a related person shall be understood to mean a spouse or an out-of-wedlock partner of the official, a first-degree straight line blood relationship kin, the lateral line second-degree relative, conclusively, a foster parent and a foster child, first-degree in-laws, conclusively, and any other legal or natural person who, under other grounds and circumstances, may be reasonably considered as being interest-wise related to the official.
Exercising other Public Functions and other Tasks
Article 5
An official may accept another public function only by agreement of a body that has elected, appointed or nominated him to the public function, should this be not contrary to the prohibitions specified in the present or another law.
An official shall not be engaged in advisory tasks with juridical or natural persons. The exceptions shall include members of parliament, deputies and municipal councillors.
An official may be engaged in scientific, educational and cultural activities and may acquire income from the copyright, patent and similar intellectual property rights.
Actions Prohibited to an Official
Article 6
An official shall be prohibited to use a public function in order to exert influence on a decision of the legislative, executive or judicial authorities for the purpose of obtaining advantage for himself or for another, acquiring a right or privilege, concluding a legal transaction, or in any other way favouring his or someone else's interests.
An official shall be forbidden as well, to:
1) acquire new or realise an existing right for himself or for someone else, should he violate thereby the equality of citizens before the law,
2) misuse special rights otherwise vested in him for the purpose of exercising the public function,
3) receive, require or accept a value or a service in order to vote on any matter whatsoever, or in order to exert influence on a decision of an agency, body or individual,
4) promise employment or another right in exchange for a gift, promise of a gift or another favour or advantage,
5) influence the process of granting business or public procurement deals,
6) receive a fee from a foreign state or an international organisation, except for travel allowance relating to his attending international conferences, in conformity with a decision of the responsible agency,
7) use, on account of acquiring for himself or to someone else's benefit, or of inflicting damage to another, accomplishments and information obtained in exercising the public function, should these be not available to the general public,
8) restrict, on account of acquiring for himself or to someone else's benefit, or of inflicting damage to another, the access to the general public to accomplishments and information that are of interest to the public, while not being proclaimed classified information of state, military or official nature by law, other regulations or a decision of a responsible agency rendered on the ground of law,
9) unwarrantably or unlawfully distinguish or treat in an unequal manner a person or a group, on the ground of their personal or acquired characteristic, including, but not limited to, their political affiliation.
Notifying on the Existence of Conflict of Interests
Article 7
Should an agency or a body proceed and decide in the matter involving private interest of the official or a related person, the official shall be bound to notify on the existence of private interest before taking part in the procedure, and before the commencement of the decision-making process, at the latest. Exempted from such duty shall be only the members of parliament, deputies and municipal councillors.
An agency or a body at whose session the official has notified on the existence of the interest, shall be bound to acknowledge the notification and enter it in the minutes.
The above shall not affect the rules of challenging of officials prescribed by the law regulating the general administrative procedure.
Management Rights in Commercial Entities
Article 8
An official shall be bound, within 30 days from his election, appointment or nomination, to transfer his management rights in a commercial entity, to a juridical or natural person, who is not a related person, with the aim that the latter exercise them on his own behalf and for the account of the official until the termination of the public function.
An official shall be bound, within a five day time limit from the transfer of the management rights, to hand over to the competent board the data relating to the person he has transferred management rights to, and the evidence on the transfer of these rights. The person the official has transferred the management rights to, shall become a related person.
An official must not provide information and instructions and give orders to the person onto whom he has transferred the management rights, nor shall he in any other way, through such person, influence the exercising of rights and obligations relating to the commercial entity. The official shall be entitled to be informed on the state of affairs in the commercial entity.
Exercising Functions in Public Enterprises, Institutions and other Commercial Entities
Article 9
An official must not be a director, deputy director or assistant director, a member of managing or supervisory board of a public enterprise, an institution, enterprise, or any other juridical person with state-owned capital share, unless otherwise specified by the law or other particular regulations.
In the remaining commercial entities the official must not be a member of managing or supervisory board, or a director, deputy director or assistant director.
An official may be a member of managing or supervisory board of scientific, humanitarian and similar associations, but without the right of remuneration or of receiving gifts, except for the right to travel allowance and reimbursement of other expenses.
Special Provisions Relating to Members of Parliament, Deputies and Municipal Councillors
Article 10
A member of parliament, a deputy and a board member may be a director or deputy director or assistant director, or a member of managing or supervisory board of one public enterprise, institution and enterprise, or other juridical person with the majority of state-owned capital share, at the most.
In the remaining commercial entities, a member of parliament, a deputy and a municipal councillor may continue to exercise his management rights or continue to be a member of a managing or supervisory board, a director, deputy director and assistant director, should this not hinder the exercising of his public function and should the nature of activity of the commercial entity fail to affect impartial and independent exercising of the public function.
Notification on Impacts on Impartiality
Article 11
An official shall be bound to notify without delay the agency that has appointed or nominated him, and the Republic Board, on any pressure or improper impact he was exposed to in exercising the public function. Where the official is elected to a public function, he shall notify thereof only the Republic Board.
Should he suspect that an action or a failure to act may cause conflict of interests, the official shall be bound to request the opinion of the Republic Board, which shall not exclude the possibility of initiating the procedure to decide whether there is a violation of the present Law.
III REPORTING OF BELONGINGS
Submitting a Report Concerning Belongings
Article 12
An official shall be bound, within 15 days subsequent to his election, appointment or nomination, to submit to the Republic Board a report on his belongings and incomes, including the belongings of his spouse and straight-line blood relatives (hereinafter: Report), indicating the situation on the day of election, appointment or nomination.
After that, the official shall submit a report annually, until 31 January of the current year for the preceding year, and within 15 days subsequent to the termination of the public function, indicating the situation on the day of submitting the report.
The report shall be submitted in the two following years as well, on the day of expiration of one year, counting from the day the official has been bound to submit the preceding report, indicating the situation on the day of submitting the report.
The belongings of related persons shall be reported by the official on the ground of information and understanding available to him, while the Republic Board may require that a related person directly reports data regarding his belongings, within the time limit otherwise valid for the official.
Data to Be Reported
Article 13
The Report shall include data on:
1) the right of ownership of immovables and the right of lease of immovables for a period exceeding one year, in the country and abroad,
2) movable property that is subject to registration with state agencies (motor vehicles, vessels, aircrafts, arms, and the like),
3) deposits in banks and other financial organisations, in the country and abroad,
4) Stock and shares at a juridical person,
5) cash money and securities,
6) the rights on the ground of copyright, patent and similar intellectual property rights,
7) the debts (capital sum, interest and repayment time limit) and the claims,
8) the source and amount of income derived from exercising a public function and from the work in scientific, educational, and cultural institutions,
9) the membership of the official in managing and supervisory boards in public enterprises, institutions and enterprises, or in other juridical persons with state-owned capital share, and in scientific and humanitarian associations,
10) all other data considered by the official as essential to the application of the present Law.
The Report submitted by members of parliament, deputies and board members shall include also data on commercial entities in which they continued to keep the management rights, or have remained on the post of directors, deputy directors or assistant directors, and members of managing or supervisory board.
Details of the Report and the form it should be submitted on, shall be regulated by the Republic Board.
Register of Belongings
Article 14
All the data in the Report shall be filed in the register of belongings that shall be kept by the Republic Board.
Data relating to belongings reported by the official may be used only in the procedure of deciding whether there is a violation of the present Law.
Data concerning the salary and other income received by an official from the budget shall be public.
An official shall be bound to notify the Republic Board, within 15 days from taking place of a change of data that are filed in the register of belongings, and which change causes an increase exceeding 20 average earnings in the Republic of Serbia, paid in the month of taking place of the change, according to latest data published by the agency responsible for statistics.
The way of keeping the register of belongings shall be regulated by the Republic Board.
IV PRESENTS IN CONNECTION WITH EXERCISING A PUBLIC FUNCTION
Concept of a Present
Article 15
In terms of the present Law, a present shall be understood to mean money, objects of property, rights, services rendered without corresponding compensation, and every other benefit granted or promised to the official or a related person in connection with exercising the public function, personally or through another person.
The value of a present shall be calculated on the ground of its market value on the day of receiving the present or of promising it. Where one and the same donor has given several presents in course of a year, the value of a present shall be the sum total of all the presents.
Should the value of a present be unknown to him, the official shall be bound to demand the invoice from the donor, or refuse the present.
Receiving a Present
Article 16
An official must not receive a present in connection with exercising his public function, except for a protocolary or occasional present whose value does not exceed the half of average monthly earnings in the Republic of Serbia, but even in such a case, not if it is in money or securities. A related person must not receive a present in connection with exercising the public function by the official such persons is related to.
An official may provide evidence that he was unable to influence the conduct of the related person, if such person has received the present, or that the present was not in connection with exercising his public function.
The Republic Board shall prescribe the criteria that will serve in determining what presents shall be considered of a protocolary nature and appropriate for the occasion.
Proceeding with presents received by an official from foreign states, its agencies or organisations, international organisations and foreign natural and juridical persons shall be regulated by a separate law.
Duties of an Official Involving Offer or Promise of Prohibited Presents
Article 17
An official who is offered or promised a present that he is not permitted to receive, shall be bound to refuse the offered or promised present, to notify the donor that the present, if received by him, shall become property of the Republic of Serbia, and shall, in the shortest possible time limit, submit a report on the event in writing, to the agency that has appointed or nominated him to public function. An official who is elected to public function shall submit the report to the Republic Board.
An official unable to refuse the present or to return it to the donor, shall be bound to hand it over to the agency that has appointed or nominated him to public function, and if he was elected to public function - to the Republic Board. The presents handed over in such a manner shall become property of the Republic of Serbia at the moment of their handing over.
V REPUBLIC BOARD
Competence of the Republic Board
Article 18
The Republic Board shall enact instructions, prescribe forms and provide opinions necessary for the implementation of the present Law, keep the register of belongings of the officials, decide on whether an action or a failure to act of the official has resulted in a violation of the present Law and, if so, shall impose measures and perform other tasks, too, as specified by the law.
All competent agencies shall be bound to provide without delay the Republic Board, at its request, the necessary data and information.
Composition of the Republic Board
Article 19
The Republic Board shall have nine members. Three members shall be elected by the judges of the Supreme Court of Serbia from among the circle of graduate lawyers, who are particularly competent in criminal, civil, commercial or administrative laws, and who are not practicing lawyers, while one member shall be elected by the Bar Association of Serbia from among the circle of practicing lawyers. Court presidents, judges, public prosecutors and deputy public prosecutors may not be members of the Republic Board.
The remaining five members shall be elected by the National Assembly, at the proposal of the Serbian Academy of Sciences and Arts, from a list of 10 candidates.
The Republic Board shall have a chairman, to be elected by members, from among the Board members, for a period of one year.
Position of a Republic Board Member
Article 20
A Republic Board member shall be elected for a five year period and may not be re-elected.
A Republic Board member may not be a member of a political party and shall be subject to the same prohibitions and duties otherwise provided for by the present Law for an official.
A Republic Board Member shall be entitled to a monthly remuneration at the amount of monthly earnings of a member of parliament with permanent work assignment in the National Assembly of Serbia.
Termination of Duty in the Republic Board
Article 21
Dutiy of a Republic Board member shall cease by the expiration of the period of time he has been elected for, by resignation and relieve of duty of a Republic Board member.
A Republic Board member shall be relieved should he unscrupulously or with partiality exercise his duties of a Republic Board member, should he become a member of a political party, be sentenced to penalty of imprisonment or for a punishable act making him unworthy of duty of a Republic Board member, or should the Republic Board find that he has violated the present Law.
The proceedings of determining possible reasons for relieving of duty of a Republic Board member shall be instituted by the Republic Board or the agency that has elected the member into the Republic Board. The proceedings shall be conducted and the decision rendered by the Republic Board.
The Republic Board may remove from duty its member against whom the proceedings are conducted for determining possible reasons for his relieve of duty.
Republic Board Service
Article 22
The Republic Board shall have a Service responsible for exercising professional, administrative, and technical tasks necessary for the work of Republic Board. The Service shall be managed by a secretary to be nominated and relieved of duty by the Republic Board.
The secretary and the employees of the Service shall be subject to the regulations covering labour relations in state agencies. The secretary and the employees of the Service shall be subject to the same prohibitions and duties otherwise applicable under the present Law to the officials.
The salary of the secretary and the employees in the Service shall be determined, at the proposal of the Republic Board, by the competent National Assembly board.
The organisation of the Service shall be prescribed in detail by means of a book of rules to be enacted, at the proposal of the secretary of the Service, by the Republic Board.
Decision-Making in the Republic Board
Article 23
The Republic Board shall render decisions in sessions, by a majority vote of all of its members.
In conducting the proceedings of determining possible violation of the present Law by a Republic Board member, the involved member and another one, to be determined by the remaining members by drawing lots, shall be excluded from the proceedings, decision-making and voting, and the decision shall be rendered by a majority vote of members entitled to vote.
Instituting the proceedings of determining possible violation of the present Law by a Republic Board member, shall mean that the proceedings for his relieve of duty are initiated as well.
Proceedings of Establishing a Violation of the Present Law
Article 24
The proceedings of establishing possible violation of the present Law shall be instituted by the Republic Board in line of duty, or at the request by the official or his immediate superior. The Republic Board may institute proceedings also on the ground of a complaint of a juridical or natural person.
The Republic Board shall notify the official on instituting the proceedings, and shall be bound to give opportunity to him to present his case regarding allegations and facts pressed against him.
The Republic Board shall establish facts independently and shall render a decision in the proceedings by applying accordingly the provisions of the law regulating the general administrative procedure.
A decision of the Republic Board must include an assignment of reasons, and shall be forwarded to the official and the agency that has appointed or nominated the official to public function.
Kinds of Measures
Article 25
Against an official appointed or nominated to public function it shall be possible to impose a measure of internal warning, and a measure of public announcement of a recommendation for relieve of duty.
Against an official elected to public function directly by citizens, it shall be possible to impose a measure of internal warning and a measure of public announcement of decision on violating the law, while against an official elected to public function by an agency directly elected by citizens, instead of a measure of public announcement of decision on violating the law - a measure may be imposed of public announcement of recommendation to submit a resignation.
A decision on imposing a measure of public announcement of decision shall be executed by publishing the holding and the summary of the assignment of reasons in the "Official Herald of the Republic of Serbia", and in other media.
Against an official violating the present Law after the termination of his public function, it shall be possible to impose only a measure of public announcement of decision on violating the present law.
Measure of Internal Warning
Article 26
A measure of internal warning shall be imposed against an official due to a violation of the present Law having no impact on exercising the public function.
A measure of internal warning shall be imposed also should the official be late with the execution of a duty specified by the present Law, and the relevant decision shall include indication as to the manner and time limit for obeying the present Law.
Measure of Public Announcement of Recommendation for Relieving of Duty
Article 27
Should an official against whom a measure of internal warning is imposed, fail to obey the present Law until the expiration of the time limit indicated for him in the decision, a measure of public announcement of recommendation for relieving of duty may be imposed against him.
The measure of public announcement of recommendation for relieving of duty shall be imposed also against an official who, contrary to the present Law, exercises, in terms of law or actually, the management rights in a commercial entity or who, disregarding the present Law, exercises functions in public enterprises, institutions, enterprises or other juridical persons with state-owned capital share, or in other commercial entities, if after the imposed internal warning he violates again the present Law, or if he, by another violation of the present Law, influences the exercising of public function.
Measures to Be Imposed only against Officials Elected to Public Function
Article 28
Should conditions exist for imposing a measure of public announcement of recommendation for relieving of duty against an official, elected to public function by a body directly elected by citizens, the measure shall be imposed of public announcement of the recommendation to submit a resignation, while against an official elected to public function directly by citizens - the measure shall be imposed of public announcement of the decision on violating the present Law.
Measures to Be Imposed against a Republic Board Member, Secretary and Employees of the Service
Article 29
On account of violating the present Law, against a Republic Board member and a secretary of the Service, only a measure may be imposed of relieving of duty. The relieving of duty of secretary of the Service shall imply the termination of his employment in the Service.
On account of violating the present Law, against an employee in the Service, only a disciplinary measure may be imposed of the termination of employment.
The Republic Board shall be bound to publish, in its entirety, in the "Official Herald of the Republic of Serbia", and in other media, every decision, including even the one stating that there is no violation of the present Law, which concerns a Republic Board member, a secretary or an employee in the Service.
Duty of Informing General Public
Article 30
The Republic Board shall be bound to give opportunity to general public to look into data and documents relating to any pressure or improper influence the official has been exposed to in exercising the public function, and relating to his functions in public enterprises, institutions, enterprises or other juridical persons with state-owned capital share, and in other commercial entities.
The Republic Board shall be bound to inform general public once a month of the phenomena observed in its work.
Report to National Assembly
Article 31
The Republic Board shall submit to the National Assembly, until 1 March of the current year, a report on its work in the preceding year.
Providing Data Protection
Article 32
In course of informing the general public, the Republic Board shall be bound to provide protection of data relating to personality against possible misuse, and particularly of the data relating to the official and to the related persons involving situations and conditions that do not amount to conflict of interests in terms of the present Law, or where it is found by means of a Republic Board decision that these are not violations of the present Law.
Data that do not amount to a violation of the present Law may not be published in the media without the agreement of the official involved.
Using Data Filed in the Register
Article 33
Decisions of the Republic Board may not prejudice an official's criminal and tort liability.
Data kept on officials in conformity with the present Law may be made available for insight and handed over to courts and other inspection agencies, but they shall not be misused for harassing an official or for making them public as if they were found by the court or inspection agency.
VI TRANSITIONAL AND CONCLUDING PROVISIONS
1. Transitional Provisions
Election of the Republic Board
Article 34
Proposals for the Republic Board members shall be made within a 30 day time limit from the day of coming into force of the present Law, their election shall be carried out within the subsequent 30 days, while the election of chairman of the Republic Board shall be effected within a 15 day time limit from the day of election of the members.
The Republic Board shall be bound, within a 60 day time limit from the election of chairman of the Republic Board, to enact the book of rules to regulate the organisation of the Service, which shall apply also to other regulations specified by the present Law.
Duties of Officials and the Government
Article 35
Officials are bound, within a 30 day time limit from the enactment of regulations for the implementation of the present Law, to submit to the Republic Board a first report and/or, within a 90 day time limit from the day of coming into force of the present Law, to bring into accord with the present Law the tasks of advising juridical and natural persons, and to bring into accord with the present Law the exercising of management rights in commercial entities, and the exercising of functions in public enterprises, institutions, enterprises and other juridical persons with state-owned capital share, as well as in the remaining commercial subjects.
The Government shall be bound to provide, within a 30 day time limit from the day of coming into force of the present Law, the premises, the technical and other material conditions for the commencement of work of the Republic Board.
2. Concluding Provision
Article 36
The present Law shall come into force on the eighth day from the day of publication in the "Official Herald of the Republic of Serbia".