Bosnia and Herzegovina

International standards

Well-designed codes of ethics and codes of conduct will help meet the growing expectations from the public, business leaders and civil society for greater transparency and integrity in government, and will places an onus on governments to ensure high ethical standards amongst public officials and elected representatives. As such, they can support the development of trust between the public and government institutions and officials. It is important that codes of conduct are in place for both civil servants and elected officials, and that training and guidance is provided to ensure a full understanding of the codes by all office-holders. Disciplinary measures and sanctions should be clearly stipulated and consistently applied in the event of noncompliance with the codes.

The following international conventions and standards relate to codes of ethics and professional conduct:

• The Committee of Ministers of the Council of Europe’s Recommendation on Codes of Conduct for Public Officials and the European Code of Conduct for all Persons Involved in Local and Regional Governance are the reference texts for local and regional authorities in Europe for ensuring political integrity.
• The Committee of Ministers of the Council of Europe’s Guidelines on Public Ethics consolidate in one single document Council of Europe core principles, standards and recommendations in this field, covering all categories of public officials, be they elected, appointed or employed. They are complemented by the Guide on Public Ethics: Practical steps to implementing public ethics in public organisations, a living document which provides case studies and examples from Council of Europe member states.
• The OECD Recommendation on Public Integrity shifts the focus from ad hoc integrity policies to a context-dependent, behavioural, risk-based approach with an emphasis on cultivating a culture of integrity across the whole of society.
• The Transparency International paper on Implementing Effective Ethics Standards in Government and the Civil Service provides practical mechanisms for institutionalising high standards of ethical integrity for elected officials and civil servants.

Domestic context

The development of the public ethics system in Bosnia and Herzegovina is primarily related to public administration reform projects and the support of various international donors to the development of administration in BiH. Taking into account the very complex constitutional and administrative structure, a number of laws and bylaws are in force in Bosnia and Herzegovina that regulate the obligations of competent (local, cantonal, entity, state) bodies to adopt codes of ethics and codes of conduct for elected officials and civil servants. This especially relates to local authorities, which follow the entity or cantonal governments' regulations, which are fragmented and uneven. From 2018, the Agency for Prevention of Corruption and Coordination of the Fight against Corruption of Bosnia and Herzegovina includes ethical behaviour in building public bodies' broader concept of building integrity. The lack of a code of ethics or ignorance of its content from the side of elected officials or civil servants is one of the systemic risk indicators that can lead to the development of corrupt behaviour, ethical and professionally unacceptable procedures and other irregularities in the work of public administration bodies. Although codes of ethics and codes of conduct in public institutions have been adopted in Bosnia and Herzegovina, more attention needs to be given to their role and implementation.

Legislation

The legal framework for the adoption of codes of ethics and codes of conduct in Bosnia and Herzegovina should be observed in relation to the level of government at which the regulation is adopted and whether it is intended for civil servants or elected officials.

The provisions of all applicable laws on civil service in BiH state-level institutions,   the Federation of BiH,  Republika Srpska,  Brčko District of Bosnia and Herzegovina  and cantons prescribe the obligation of the competent Civil Service Agencies to develop a code of conduct for civil servants adopted by the competent governments.

For elected officials at the level of Bosnia and Herzegovina, the Republika Srpska, the Federation of BiH and the cantons, the drafting of codes of ethics or codes of conduct is prescribed by the Rules of Procedure of the competent legislative bodies, assemblies, or parliaments.

It should be noted that all executive and legislative power levels have adopted codes of ethics or codes of conduct for civil servants or elected officials. In addition, ethics commissions or committees have been set up within the legislature to report the unethical conduct of elected officials according to the rules of procedure.

When it comes to the legal framework for local authorities, Article 39, paragraph 2, item 27 of the Law on Local Self-Government of the Republika Srpska  stipulates that the Assembly of the local self-government (municipality or city) is responsible for adopting codes of ethics for elected officials.

In Republika Srpska, a special Law on Civil Servants and State Employees in Local Self-Government Units  has been adopted. Article 33 of this Law stipulates that an official is obliged to act in accordance with the law and the Code of Conduct issued by the Minister of Administration and Local Self-Government of Republika Srpska.

The Law on Principles of Local Self-Government  has been in force in the Federation of BiH since 2006, but it does not explicitly prescribe the obligation to adopt a code of ethics or a code of conduct for elected officials. This is a framework law defining the principles under which cantonal levels of government should harmonize existing cantonal laws on local self-government enacted before 2006 or enact new ones to be harmonised with the federal law. The current laws on local self-government of the Federation of BiH do not prescribe the obligation to adopt a code of ethics or code of conduct. The practice is varied, given that a large number of local governments follow standards in this area and have adopted codes of ethics or codes of conduct for elected officials, which have been adopted based on strategic documents, statutes and other bylaws of local self-government units.

The provisions of Article 17, paragraph 7, of the Law on Civil Service in the Federation of BiH, which prescribes the adoption of the Code of Ethics, and cantonal laws on civil service apply to civil servants in the bodies of local self-government units. Out of a total of 10 cantons in BiH, seven cantons have adopted civil service laws.   Some cantonal laws prescribe the adoption of cantonal codes of ethics, and some require the application of the Code of Ethics for civil servants in the Federation of Bosnia and Herzegovina.

Guidelines

The Anti-Corruption Strategy 2015-2019 of Bosnia and Herzegovina and the accompanying Action Plan  recognize the strengthening of ethics and integrity in public administration as one of the key preventive mechanisms in the fight against corruption.

Back in 2015, Transparency International Bosnia and Herzegovina, with the financial support of the Embassy of the Kingdom of the Netherlands, developed the Manual: Introduction of Integrity Plans at the Local Level   to design effective methods for creating ethical and professional quality of work in public institutions.

Through their strategic plans for the fight against corruption, all levels of government in Bosnia and Herzegovina have recognised the importance of improving ethical behaviour and strengthening integrity. For example, the Tuzla Canton Anti-Corruption Strategy for 2021-2024 envisages the introduction of programme plans to strengthen ethics and integrity in primary, secondary, and higher education. 

In 2018, the Agency for Prevention of Corruption and Coordination of the Fight against Corruption of Bosnia and Herzegovina developed the Manual: Rules for Development of Integrity Plans in BiH Institutions with the aim of providing guidance to institutions at all levels of government on how to approach the development of internal plans to prevent corruption, unethical behaviour and strengthen integrity of public institutions.

International standards

To ensure confidence in the mechanisms, local authorities should endeavour to consider and resolve each complaint promptly and comprehensively. Complaints mechanisms can be made more accessible by applying a one-stop-shop approach so that citizens do not need to search among different offices and websites.

If government takes a proactive approach to pre-empt the repeat of similar causes for complaint, complaints mechanisms can also help governments to identify new approaches to service delivery and to increase citizen participation. To this end, complaints mechanisms should be combined with periodic evaluations of service delivery, including the use of public opinion surveys, and exchange of experience and tools with other local authorities to encourage wider adoption of good practice and tried and tested tools.

There are no specific international standards for complaints mechanisms relating to public services. However, mechanisms and procedures for responding to complaints are incorporated into an international legal guarantee to the right to participate in the affairs of a local authority, and there are a number of helpful civil society guidelines and handbooks. See for example:

• The Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) provides an international legal guarantee to this right, including the establishment of mechanisms and procedures for dealing with and responding to citizen complaints and suggestions.
• Transparency International’s Complaints Mechanisms: Reference Guide for Good Practice sets out guiding principles and good practices for establishing and implementing complaint mechanisms that provide safe channels for citizens to alert a public or private institution about any corruption risks or incidences.
• The Danish Refugee Council’s Complaints Mechanism Handbook describes how to set up and manage a complaints mechanism.
• World Vision’s Overview of NGO-Community Complaints Mechanisms, with an overview of mechanisms and tools used by development agencies to receive complaints.

Domestic context

Complaints mechanisms about the work of administrative bodies belong to the segment of service delivery, that is they form a significant pillar of the reform area related to the creation of a citizen-oriented administration. Through SIGMA/OECD¹  reports and European Commission reports for Bosnia and Herzegovina, it is continuously pointed out that public administration in Bosnia and Herzegovina is inefficient and that the legal framework for citizen-oriented administration differs significantly from one level of government to another. In general, the perception of citizens about public services, namely services provided by public administration bodies, is very low. 

Although it is stated that the territorial and administrative structure significantly affects the differences in administrative procedures, not only between the entities and the Brčko District of Bosnia and Herzegovina, but even between individual cantons in the case of the Federation of Bosnia and Herzegovina,  citizens' trust in local government is growing.  

According to the findings of the TI BiH Perception of Public Administration, in 2014 30.4% of citizens stated they mostly have trust in local administration, compared to 2017 when this percentage was 42.3%. Asked if they have complained about the work of public administration officials, in 2014 11% of surveyed citizens replied that they complained orally to the superior of the public administration official, while in 2017 8.9% of surveyed citizens provided this answer. In 2014, 2.5% of surveyed citizens complained in written form, while in 2017 this percentage was 1.4%.  

1. SIGMA (Support for Improvement in Governance and Management) is a joint initiative of the OECD and the European Union. Its key objective is to strengthen the foundations for improved public governance, and hence support socio-economic development through building the capacities of the public sector, enhancing horizontal governance and improving the design and implementation of public administration reforms, including proper prioritisation, sequencing and budgeting. We have been working with our partners on strengthening their public governance systems and public administration capacities since 1992.

Legislation

The mechanism of citizens' complaints about the work of administrative bodies in Bosnia and Herzegovina should be viewed from different levels of government that communicate with citizens in the performance of their constitutionally and legally defined competencies. Thus, the mechanism of citizens' complaints about the work of the state, entities and Brčko District bodies is regulated by the current laws on administration of Bosnia and Herzegovina,  the Federation of Bosnia and Herzegovina, Republika Srpska  and Brčko District of Bosnia and Herzegovina.  These laws prescribe the obligation of administrative bodies to enable all natural and legal persons to submit petitions and complaints about the work of administrative bodies and the improper attitude of employees in those bodies when citizens turn to them to exercise their rights and interests, or fulfil their civil obligations.

When it comes to the mechanism of citizens' complaints about the work of local authorities, it is guaranteed by Article 46 of the Law on Principles of Local Self-Government of the Federation of Bosnia and Herzegovina  and Article 117 of the Law on Republic Administration of the Republika Srpska.

The state-level administration law and the law of the Federation of BiH each define sanctions for the responsible person in the administrative body and administrative organisation if (s)he does not act upon petitions or complaints of citizens (Article 104 BiH Law on administration prescribes sanctions as fines ranging from BAM 150 to BAM 500; Article 150 of the Federal Law on Administration prescribes sanctions as fines ranging from BAM 300 to BAM 2000). In contrast, the laws of the Republika Srpska and Brčko District of Bosnia and Herzegovina do not prescribe any sanctions. Based on the above-mentioned laws on administration and laws on local self-government, local governments issue rulebooks, instructions, guidelines, and other similar acts that regulate in detail the procedures for citizens' complaints about the work of local government institutions.

Guidelines

As previously mentioned, there is no centralised approach to the system of citizens 'complaints about the work of administrative bodies and their employees. Each local government regulates the system independently, adopting, based on the previously mentioned laws, its procedures, guidelines, and instructions for citizens' complaints. Some local governments publish their guides on their websites along with a “form” for citizen complaints. Thus, for example, the Municipality of Ugljevik has published Instructions for submitting and resolving citizens' complaints on its website.  The City of Bijeljina published Instructions for submitting and resolving complaints on its website, together with the form for submitting complaints.   The Municipality of Tomislavgrad  and other cities and municipalities have done likewise.

International standards

Redress mechanisms serve as a frontline service to be used by citizens to effectively resolve complaints and/or grievances. Furthermore, business organisations can use GRMs to mitigate risks to their business operations and GRMs can become a prompt and effective mechanism for dispute settlement short of legal action.

Effective redress mechanisms can serve to identify patterns of corruption and malpractice, and to forge corruption prevention policies. To ensure greater access, it is important to raise public awareness about GRMs and to provide free advice to citizens on the formulation of grievance claims and how to proceed when seeking redress.

Standards for grievance redress mechanisms are mostly set by international organisations such as the World Bank, Asian Development Bank (ADB), Organisation for Economic Co-operation and Development (OECD), United Nations Development Program (UNDP) and European Commission. These standards are mostly connected with setting the legal framework for the protection of citizens’ rights. These standards are presented in the following guidelines:

 

Domestic context

The grievance redress mechanism falls under the concept of institutional accountability. The organisation of public administration has a significant impact on its general functioning and its democratic legitimacy in terms of citizens' expectations. The responsibility of public administration implies, in fact, several segments within which administrative bodies must act to perform their functions efficiently and adequately (rationality, transparency, accountability, accessibility). Responsible institutions should provide citizens with a fair resolution in cases of wrongdoing or illegal actions. This is one of the five SIGMA principles within the area of liability. It implies that public bodies take responsibility in cases of violations and guarantee redress and/or appropriate compensation.  This institute is partially regulated by law in Bosnia and Herzegovina, and even less is known in practice.

Legislation

The Yugoslav Law on Obligations of 1978, adopted by Bosnia and Herzegovina, the entity levels of government and the Brčko District of Bosnia and Herzegovina, and ultimately applied by local levels of government, is the most comprehensive legal framework for public accountability, regulating in detail the principles of liability and redress procedures. In the context of the right to seek compensation for damages caused by illegal actions or omissions of administrative bodies, Article 172 of the Law on Obligations is relevant, which, however regulates "only" the liability of legal entities for damage caused by its bodies. This article does not explicitly refer to the responsibility of public bodies. It does not explicitly state the responsibility of public administration bodies for adopting public policies and regulations that harm citizens or liability for violating regulations. However, its application includes liability for detriment caused by actions or omissions of administrative bodies and private bodies performing public functions.

In addition to the above, the Bosnia and Herzegovina Law on Administration and the Law on Republic Administration of the Republika Srpska established the general principle of liability of administrative bodies for damages caused to a natural or legal person by their illegal actions.

The Strategic Framework for Public Administration Reform in Bosnia and Herzegovina for the period 2018-2022 envisages the measure entitled "Improve the mechanism for protection of the right of individuals to good governance and public interest". It means ensuring functional internal and external mechanisms for protecting this right, including providing consistent and fair handling of administrative disputes guaranteed through administrative appeals and judicial control, as well as improvement of procedures and mechanisms for public bodies to take responsibility in cases of violations of regulations with redress and/or adequate compensation.  The accompanying Action Plan for Public Administration Reform envisages a number of steps to implement the Strategic Framework measure in question. 

Guidelines

 A well organised and functional public administration is a key precondition for transparent and effective democratic governance. Good public administration is the foundation of the functioning of the state because it is the administration that determines the ability of the governments to implement key reform processes and provide quality services to citizens. The criteria for the accession of countries to the European Union (EU), including Bosnia and Herzegovina's aspirations for membership, emphasize the need to create and have strong public administrations that will have the capacity to follow the principles of good public administration. SIGMA Principles of public administration are the result of the European Commission's focus on reforming the public administrations of countries aspiring to membership in the EU.

The SIGMA principles cover six key areas, including the area of “Responsibility”. The basic requirement of this area implies the existence of appropriate mechanisms that will ensure the accountability of public administration bodies, including transparency of action.

The latter implies that:

1.           the legislation contains a requirement to correct or compensate the damage to individuals who suffer damage from illegal actions of public bodies,

2.           the regulation on public responsibility is coherent, complete, logically structured, formulated in a simple and clear manner, and easily accessible,

3.           the scope of public accountability is wide and includes the exercise of powers by the public and the performance of other public duties, regardless of who performs them (a public body or a private person performing public duties),

4.           the rules concerning time limits and the burden of proof do not jeopardize the effective exercise of the right to bring an action for damages. 

One of the key recommendations of SIGMA in the 2017 Report for Bosnia and Herzegovina is to simplify and clarify the official typologies of administrative bodies at all levels of government. It is crucial to ensure that all bodies subordinate to the government are subject to a single and comprehensive accountability scheme in the context of planning, reporting and monitoring. Given that the legal framework for public accountability exists, but there is no information on its practical application, one of the recommendations is that governments at all levels establish mechanisms to monitor court cases that result in increased government accountability to improve administrative procedures and decisions and reduce the risk of cases of public liability in the future. 

International standards

Most whistle-blowers raise their concerns internally or with regulatory or law enforcement authorities rather than blowing the whistle in public. The protection of whistle-blowers, and an organisational culture that prioritises transparency and dialogue, serves to promote accountability, builds confidence in the integrity of government, and encourages the reporting of misconduct and corruption. Whistle-blower protection can motivate employees to report wrongdoing without fear of reprisals, and fosters transparency and trust within an organisation as well as outwards to citizens that ethics are upheld and misconduct detected and remedied.

The rights of whistle-blowers can be strengthened by stipulating clear processes and providing secure confidential channels for disclosure. Explicit remedies, including penalties, to redress reprisals against whistle-blowers should be introduced and consistently applied. Training of human resources staff in local government and government agencies needs to be complemented by awareness-raising among the public so that citizens and government employees alike understand the positive results from whistle-blowing in terms of sustained value for money, trust in public authorities, and quality of services.

The following international conventions and standards relate to the protection of whistle-blowers:

• Creating comprehensive and effective mechanisms to protect those who disseminate information in the public interest is a recommendation of both the United Nations and the Council of Europe, as well as the Organization for Economic Co-operation and Development (OECD).
• The Congress of the Council of Europe’s resolution and recommendation on The protection of whistle-blowers Challenges and opportunities for local and regional government call on ”local and regional authorities to establish and disseminate a whistleblowing policy, with appropriate internal and anonymous reporting channels and to ensure that independent designated institutions exist to oversee and process the disclosure of information.”
• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by the Technical Guide to the Convention.
• The EU Directive on the Protection of Persons who Report Breaches of Union Law requires EU governments to meet minimum standards for establishing reporting channels and ensuring legal protection for whistle-blowers.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.

Domestic context

Back in 2019, the European Commission published the Opinion on Bosnia and Herzegovina’s application for membership of the European Union,   which identified 14 key priorities that Bosnia and Herzegovina must meet in order to open membership negotiations and gain candidate status. The opinion emphasizes in particular that corruption is widespread and that the strategic policy framework and the institutional and legal framework for the fight against corruption are fragmented and show significant shortcomings. In this regard, one of the key priorities within the "rule of law" area that BiH must meet is the adoption and implementation of regulations on conflicts of interest and the protection of whistle-blowers.

This was confirmed in the independent report of experts on the rule of law in BiH ("Priebe's report") from 2019, where it was emphasized that the criminal justice system in BiH does not fight corruption. Although there are preventive institutional mechanisms in BiH to fight corruption, their role is minimal. The Agency for Prevention of Corruption and Coordination of the Fight against Corruption of Bosnia and Herzegovina is the umbrella institution for adopting and implementing key policies in the fight against corruption. However, the role of the Agency is very limited. Priebe's report states that the Agency failed to impose itself as a central institution in the fight against corruption, including in the field of whistle-blower protection, where whistle-blower protection is cited as a key mechanism in the fight against corruption.

The field of whistle-blower protection in BiH is fragmented and limited – in both the legal and institutional framework. Currently, there are three laws in force in Bosnia and Herzegovina related to the protection of whistle-blowers – in the Republika Srpska, in the institutions of Bosnia and Herzegovina (state level), and in the Brčko District of Bosnia and Herzegovina. When it comes to the Federation of Bosnia and Herzegovina, in the past few years, there have been several attempts to adopt a law, but it has not passed the necessary parliamentary procedure. The drafting of the new Law on the Protection of Whistle-Blowers in the Federation of Bosnia and Herzegovina is currently underway. Its drafting is planned by the Work Programme of the Federal Ministry of Justice in the third quarter of 2021. 

Legislation

 The Law on Protection of Persons Reporting Corruption in the institutions of Bosnia and Herzegovina Institutions,  which entered into force in January 2014, regulates the status of persons reporting corruption only in state-level institutions and legal entities established by Bosnia and Herzegovina institutions. It regulates the reporting procedure, obligations of institutions regarding reporting corruption, protection procedure and sanctions for violations of the provisions of this law. Therefore, this law applies only to whistle-blowers within the institutions of Bosnia and Herzegovina, which represents a relatively “small number” of potential whistle-blowers and it is not applicable to other levels of government (and thus not to local levels of government).

The Law on Protection of Persons Reporting Corruption of the Republika Srpska,  adopted in 2017, regulates the protection of persons reporting corruption, the procedure for reporting corruption, the obligations of the responsible person and competent authorities regarding the reporting and protection of persons reporting corruption, and other issues important for persons who report corruption. Unlike the state law, the Law on Protection of Whistle-Blowers of the Republika Srpska prescribes protection for all natural and legal persons who report corruption in the public or private sector in the Republika Srpska, as well as local authorities in the Republika Srpska.

The Law on Protection of Whistle-Blowers of the Brčko District of Bosnia and Herzegovina  was adopted in 2018 and is very similar to the state law. It protects a broader number of persons – all employees in public institutions and other legal entities in the Brčko District of Bosnia and Herzegovina.

On the other hand, the Law on the Protection of Whistle-Blowers in the Federation of Bosnia and Herzegovina has not yet been adopted but is being drafted. According to a report by Transparency International Bosnia and Herzegovina, the analysis of the draft law that is being prepared indicates a great similarity with the legal solution adopted in Republika Srpska.  Therefore, with the draft Law still under discussion, the legal protection of whistle-blowers is not yet regulated in the Federation of Bosnia and Herzegovina, and it is not known, once enacted, what level of whistle-blowers protection will law provide. This means that potential whistle-blowers in the Federation of Bosnia and Herzegovina do not enjoy legal protection, as in Republika Srpska, the Brčko District or institutions at the level of Bosnia and Herzegovina.

Guidelines

There is no single legal and institutional framework for whistle-blower protection in Bosnia and Herzegovina. The existing legal framework is inconsistent, and whistle-blower protection rights are uneven in the context of internal or external protection. In addition, the current laws in force cover "half" of the territory of Bosnia and Herzegovina, so persons who are and work in the Federation of Bosnia and Herzegovina do not enjoy legal protection in accordance with the prescribed standards. Despite the lack of a legal framework for protection, whistle-blowers in the Federation of Bosnia and Herzegovina can also turn to the Centre for Free Legal Aid of Transparency International, providing protection to all persons who report corruption since 2003. According to the last published Report for 2020, out of 240 reports acted upon by the Centre, 18 reports were categorised as "whistle-blowing".

The existing laws in force stipulate that the institutions to which the application of the law applies must issue instructions or other internal acts regulating the procedure upon internal reporting of corruption and protection of the person who reported corruption. When it comes to state law, in 2015 the Agency for Prevention of Corruption and Coordination of the Fight against Corruption of Bosnia and Herzegovina published an example of the Rulebook on Internal Reporting of Corruption and Protection of Persons Reporting Corruption in State-Level Institutions  to facilitate its adaptation and adoption in all BiH institutions. In addition, the Agency published a short brochure explaining the procedure for reporting corruption.

In Bosnia and Herzegovina, civil society organisations have a very important role to play in promoting and advocating for whistle-blower protection activities. The Manual for the Protection of Whistle-blowers in State-Level Institutions  was developed within the project Anti-Corruption Network of Civil Society Organisations in BiH - ACCOUNT with the financial support of the United States Agency for International Development (USAID). In addition to the review of key international standards of protection and the review of the legal framework in Bosnia and Herzegovina, the manual contains a special section dedicated to providing explanations and instructions on the procedure for reporting corruption and the protection procedure covered by the law on reporting corruption in state-level institutions.

International standards

Disclosure requirements can build citizens' trust in the transparency and integrity of local decision-making. They also assist public officials in having regularly updated information that prevents conflicts of interest arising among employees. Disclosure of financial assets also provides important information to help clarify if elected officials or civil servants do not have wealth that is disproportionate to their income, either protecting them from false accusations or serving as evidence in the case of suspected illicit enrichment.

Service delivery at the local government level, whether it be construction or tendering of waste-management services, is often subject to conflicts of interest due to the proximity of local entrepreneurs to government officials.  Confidence of the public and business that competition for local government tenders, for instance, is open to all without discrimination will be much greater if both elected officials and civil servants involved in design of the tenders and assessment of tender submissions have completed declarations of assets and interests (including of close family members).

It is important that the institutions responsible for gathering and monitoring declarations are provided with protection against political or other interference in their work, for instance through oversight by independent ethics committees. Likewise, local government officials should be provided with clear guidance on what to declare, and also on prevailing anti-corruption legislation. A well-implemented and regularly updated and monitored assets declaration system can complement the work of an effective prosecution service.

Disclosure is an important element in the conventions and standards against corruption listed elsewhere in this handbook. Of particular relevance are:

• The Committee of Ministers of the Council of Europe’s Recommendation on Codes of Conduct for Public Officials and the European Code of Conduct for all Persons Involved in Local and Regional Governance require private interests to be declared, made public and monitored.
• The Congress of the Council of Europe’s Resolution and Recommendation on Conflicts of interest at local and regional level call on local and regional authorities to promote the proactive disclosure of declarations of interest prior to public request and to ensure that disclosure policies are accompanied by appropriate measures for resolving conflicts of interest.
• The OECD’s Managing Conflict of Interest in Public Service: Guidelines and Country Experiences provides practical instruments for modernising conflict-of-interest policies.
• The OECD’s Asset Declarations for Public Officials: A Tool to Prevent Corruption identifies the key elements of asset declaration systems.
• Consultation, Participation & Disclosure of Information, International Bank for Reconstruction and Development / The World Bank.

Domestic context

When it comes to declarations of assets and conflicts of interest, it is necessary to distinguish between the obligation to report data on income and ownership of assets and financial interests on the one hand and the existence of a possible conflict of interest of public servants or employees in administrative bodies and elected officials on the other hand.

Depending on the level of government, the areas of disclosure of assets and conflicts of interest are regulated differently. At some levels of government, the obligation to report assets and the existence of conflicts of interest are regulated for both civil servants and all employees in administrative bodies, while at some levels of government, such as the level of institutions of Bosnia and Herzegovina, this is not the case. The obligation to report assets data for appointed officials is more or less centralised.

Legislation

The legal framework for conflicts of interest is regulated through several laws, primarily depending on whether it affects civil servants and employees or elected officials. All civil service laws at the level of institutions of Bosnia and Herzegovina (state level), the Federation of Bosnia and Herzegovina, the Republika Srpska, the Brčko District of Bosnia and Herzegovina and the applicable cantonal laws prescribe the incompatibility of certain functions with the work of a civil servant. In addition, when appointed as civil servants, civil servants are obliged to present all information on the property available to them or their family members, as well as on the activities and functions performed by the civil servant and his family members. Unlike the state law, which more broadly prescribes the obligation to provide property information, the Law on Civil Service in the Federation of Bosnia and Herzegovina stipulates the responsibility of a civil servant to present all information on property available only to the civil servant (without mentioning family members) when being appointed in civil service.

The Laws on Civil Service in the institutions of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Brčko District of Bosnia and Herzegovina additionally prescribe the obligations of the competent authorities to keep this data in the records or registers of the civil service in accordance with the regulations on data protection.

Although the Law on Civil Servants of the Republika Srpska  similarly prescribes incompatibilities with the duties of a civil servant, it does not contain provisions on the obligation of a civil servant to present all information about the property (s)he has at her/his disposal during his appointment. On the other hand, unlike other valid laws on civil service, articles 22 to 22b of the law of the Republika Srpska contain special provisions that define conflicts of interest, and appropriate actions in case of conflicts of interest. Article 22a stipulates that if a civil servant has kept silent about the existence of a conflict of interest during employment, the head of the institution is obliged to initiate disciplinary proceedings. In accordance with article 22b the same applies to the case when the civil servant has not eliminated the reasons leading to the conflict of interest within the prescribed time limit. Article 67 of the Law on Civil Servants and Employees in Local Self-Government Units of the Republika Srpska stipulates that a person can be employed in the city or municipal administration who, among other things, is not in a conflict of interest, namely does not perform a duty incompatible with duties of officials in the city or municipal administration.

The Election Law of Bosnia and Herzegovina regulates the election of members and delegates of the Parliamentary Assembly of Bosnia and Herzegovina and members of the Presidency of Bosnia and Herzegovina and determines the principles that apply to elections at all levels of government in Bosnia and Herzegovina. When it comes to property statements of elected officials, Article 15.7 of the Election Law stipulates that “candidates elected at all levels of government, including local self-government, are required to submit to the Bosnia and Herzegovina Central Election Commission, on a certain form, a signed statement of their total assets…”, and that “the elected member at all levels is obliged to submit a report on the financial situation to the Central Election Commission of Bosnia and Herzegovina within 30 days after the expiration of the mandate for which he was elected, as well as in case of termination of mandate… within 30 days from the end of mandate ”. In accordance with article 19.10, in the case of non-compliance with the obligations, fines in the range of 300.00 to 3,000.00 KM are prescribed.

The issue of conflicts of interest of elected officials, executive office holders and advisers is regulated through four laws - the Law on Conflict of Interest in Government Institutions of Bosnia and Herzegovina, the Law on Conflict of Interest in Government Bodies in the Federation of Bosnia and Herzegovina, the Law on Prevention of Conflict of Interest Srpska, and the Law on Conflict of Interest in the Institutions of the Brčko District of Bosnia and Herzegovina.¹ Laws are enacted to prevent and / or sanction situations in which public officials may benefit themselves or persons with whom they are family or otherwise related may benefit through the performance of their functions.

The Central Election Commission of Bosnia and Herzegovina is responsible for law enforcement at the level of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Brcko District. In the Republika Srpska, there is a special Commission for the Prevention of Conflicts of Interest in the Republika Srpska authorities, as a first instance body formed by the Republika Srpska National Assembly and as a second instance body the Commission for Appeals. Sanctions are envisaged for violating the law – including measures prohibiting candidacy for any elected position for four years, and fines ranging from BAM 1,000 to 10,000.

Guidelines

Aware of the risk of illegal acquisition of property and conflicts of interest and the need to fight corruption, a new Regulation on the manner of keeping the register of employees in the civil service of the Federation of Bosnia and Herzegovina  was adopted in July 2020. The new Regulation expanded the scope of application, namely record keeping, not only for those who have the status of a civil servant but also for all employees in the civil service bodies in the Federation of Bosnia and Herzegovina. The Regulation also envisages the introduction of a card of assets for all employees. The same applies to all employees in the civil service bodies of the Federation of Bosnia and Herzegovina, cantons, cities and municipalities, and other bodies and services unless otherwise regulated by cantonal regulations. On the website www.adsfbih.gov.ba, in the section "Register" it is possible to download all the forms that constitute the so-called e-card of the employee, which is entered in the above-mentioned Register. 

On the other hand, when it comes to assets records and conflicts of interest of elected officials, on the website of the Central Election Commission (www.izbori.ba) the following are available: instructions on the appearance and manner of filling out forms of declarations of assets, forms of declarations of assets, and a user guide for completing the application to submit a statement of assets.  The Central Election Commission has also developed a manual in the field of conflict of interest laws, which explains in detail everything related to the laws, procedures, and case law.  

International standards

Access to information supports accountability, oversight of government, and monitoring of corruption. It is also critical to informed citizen participation in decision-making, and is therefore fundamental for the effective functioning of democracies. Free access to information empowers civil society to monitor and scrutinise the actions of local authorities, it serves to prevent abuse of power by public officials, and provides data for informed public debate.

The proactive publication of the maximum amount of information in the most accessible formats serves to reduce the need for citizens and stakeholders to file individual requests for the release of information. As well as providing the maximum amount of information electronically, local authorities should prioritise the designation of Freedom of Information officers in their municipalities. Such officers should prepare and publish detailed recommendations for both citizens and local authorities, and provide clear guidance on the appeals process in the event that a request for information is not granted. It is also important to analyse information requests from citizens and stakeholder groups, in particular trends and duplication, so that the authorities can subsequently release such information on a proactive basis.

Access to information is a fundamental component of a number of the conventions and standards against corruption listed elsewhere in this handbook. It also underpins a number of key UN human rights documents. The following specifically relate to Access to Information:

• The Council of Europe’s Convention on Access to Official Documents (CETS No. 205) affirms an enforceable right to information.
• The Congress of the Council of Europe’s Resolution and Recommendation on Transparency and open government call upon local and regional authorities to increase the use of open data and records management by their administrations, and to publish these in comprehensive, accessible and reusable ways.
• The Aarhus Convention grants rights, including access to information, in decisions concerning the environment.
• The OECD Recommendation of the Council on Open Government identifies on-demand provision of information and proactive measures by the government to disseminate information as an initial level of citizen participation.

• Directive 2003/98/EC on the re-use of public sector information, nowadays called the Open Data Directive, previously known as the PSI Directive, encourages EU member states to make as much public sector information available for re-use as possible.

Domestic context

As an integral component of the right to freedom of expression, the right to access to information is a human right guaranteed by the European Convention on Human Rights and other international conventions and declarations. Although the Constitution of Bosnia and Herzegovina does not explicitly guarantee it, the right to free access to information indirectly derives from Article 10 of the European Convention on Human Rights,  which is an integral part of the Constitution of Bosnia and Herzegovina and is directly applicable, and therefore has supremacy over all other regulations in Bosnia and Herzegovina.

Bosnia and Herzegovina was the first country in the Western Balkans to adopt regulations on free access to information in the 2000s. This was primarily the result of the international community's efforts to develop a democratic society and a functioning public administration in Bosnia and Herzegovina. However, since the 2000s, there have been no major developments in the context of the development of the legal and institutional framework for free access to information, which is why existing regulations have weaknesses and shortcomings in implementation. The regulations in force are not harmonised with international standards, which was confirmed by the institution of the Human Rights Ombudsman of Bosnia and Herzegovina  and the European Commission. Another problem is the inconsistency of laws and the lack of adequate institutional mechanisms for monitoring and enforcing laws in force in BiH. 

Legislation

The freedom of access to information in Bosnia and Herzegovina is regulated at the state and entity levels of government. The Law on Freedom of Access to Information of Bosnia and Herzegovina  was adopted in 2000, while the Law on Freedom of Access to Information of the Republika Srpska  and the Law on Freedom of Access to Information of the Federation of Bosnia and Herzegovina  were adopted in 2001.

The applicable laws on freedom of access to information of the Republika Srpska and the Federation of Bosnia and Herzegovina apply to all public bodies in the Republika Srpska or the Federation of Bosnia and Herzegovina, including all executive, legislative, judicial bodies, as well as bodies performing public office, or any other administrative body and legal entity owned by a public or administrative body. Thus, local governments in Bosnia and Herzegovina apply entity laws, depending on whether they are administratively located in the Republika Srpska or the Federation of Bosnia and Herzegovina. All laws regulate the procedure for access to information and the obligation of public authorities to provide the necessary information at the request of a natural or legal person, except for exceptions that are clearly defined by law, such as "crime prevention and any detection of crime." In addition, the applicable laws stipulate the obligation of all public bodies to appoint information officers, but also to publish or submit a guide on access to information, an indexed register of information, statistical data, and annual reports. The latest published Report of the Human Rights Ombudsman of Bosnia and Herzegovina shows that most of the surveyed public bodies meet these obligations under the law.

Although the existing laws on freedom of access to information were amended and changed on several occasions, there was no significant harmonisation with international and European standards. Some of the key shortcomings of the three current freedom of information laws are:

-             Lack of provisions on proactive transparency in all laws in force

-             Lack of provisions on mandatory adoption of an administrative act (Decision) in case of denial of the right to access information in the Law on Freedom of Access to Information of the Republika Srpska, which prevents the right to appeal

-             Very limited and inefficient supervisory and grievance mechanisms

-             Lack of provisions on fines in the laws on freedom of access to information of the Republika Srpska and the Federation of Bosnia and Herzegovina

-             impossibility of electronic submission of requests for free access to information

Guidelines

 All laws on freedom of access to information in Bosnia and Herzegovina prescribe the obligation to issue instructions on the application of the law on freedom of access to information. In 2001, the Federation of Bosnia and Herzegovina issued the Instruction on the Implementation of the Law on Freedom of Access to Information, which regulates issues that should contribute to the effective implementation of the law. Considering that the state law is applied in the Brčko District, the Instruction on the application of the Law on Freedom of Access to Information of Bosnia and Herzegovina  was adopted in Brčko.

In 2013, within the project "Monitoring and Advocacy for Good Governance in Municipalities in Bosnia and Herzegovina", Transparency International in Bosnia and Herzegovina developed a manual for local government representatives "How to Improve Transparency and Accountability of Local Governments".   The Manual has a section dedicated to the application of the law on freedom of access to information in local governments, with explanations and examples of guides for access to information, a model of the Decision on approval of a request for access to information, an example of an information access request form, a model of a Decision to reject a request for access to information, and an example of an information register index.

In the last Special Report on Freedom of Access to Information in Bosnia and Herzegovina from 2020, the Ombudsman for Human Rights of Bosnia and Herzegovina made a number of recommendations to the competent institutions to improve the current situation in the field of the right to free access to information. Among other things, it is recommended to all competent institutions to develop guidelines for applying applicable laws that will be intended for holders of information and to establish closer cooperation with civil society and media that can inform the public about the right to freedom of information.

International standards

The promotion of open data through one-stop portals can further increase the scope for interoperability of datasets in terms of search and analysis. The results can improve the efficiency and reach of service delivery and reduce corruption. Awareness-raising among stakeholder groups, the media, businesses, and the wider public can result in effective co-operation among different stakeholders and improvements in solutions on transportation, recreation facilities, parking zones, health services, and much more.

It is important to adopt consistent open data standards for all open data to ensure maximum interoperability and searchability of data. Local authorities should also ensure that qualified staff manage the municipality's open data publication, and train relevant employees in open data standards.

Open data is a relatively new phenomenon without officially endorsed standards. However, a number of useful guidelines exist:

• The Congress of the Council of Europe’s Resolution and Recommendation on Open data for better public services explain its importance for improving local democracy.
• The Congress of the Council of Europe’s Resolution and Recommendation on Transparency and open government call upon local and regional authorities to increase the use of open data and records management by their administrations.
• The United Nations Guidelines on Open Government Data for Citizen Engagement introduce policy guidelines and good practice recommendations.
• This World Bank Toolkit starts from the basics, through to planning and implement, as well as avoiding common pitfalls.
• The Five Star Open Data Deployment Scheme provides five steps to fully opening data, explaining the costs and benefits of each.
• The International Open Data Charter sets out six principles for open, timely and interoperable government data.
• The OECD Recommendation of the Council on Open Government identifies on-demand provision of information and proactive measures by the government to disseminate information as an initial level of citizen participation.

Domestic context

Bosnia and Herzegovina is in the early stages of implementing open data standards. Although government institutions at all levels "produce" large amounts of data, currently in Bosnia and Herzegovina there are no regulations on the obligation to publish such data in an open format. Open data has been on the government agenda more actively since Bosnia and Herzegovina joined the Open Government Partnership (OGP) in September 2014. In addition to certain strategic documents prescribing the importance of open data, limited efforts have been made to implement open data standards in Bosnia and Herzegovina.

Legislation

No level of government in Bosnia and Herzegovina has adopted a regulation regarding the obligation to publish data according to an open standard. Some progress has been made at the state level, where several strategic documents have been adopted to recognize the importance of open data. In 2017, the Council of Ministers of BiH adopted the Policy for the Development of the Information Society of Bosnia and Herzegovina 2017 - 2021, within which the establishment of a database of public data for public use is envisaged.  Additionally, in 2018, the Council of Ministers of Bosnia and Herzegovina adopted the Interoperability Framework of Bosnia and Herzegovina, within which the concept of open standards and open codes in public administration was promoted.  The Strategic Framework also confirms open data as an important area of public administration reforms in Bosnia and Herzegovina, and the framework provides for the preparation of the Analysis of the Readiness of BiH institutions to open data and the adoption of Open Data Policy until 2022.

Guidelines

Since Bosnia and Herzegovina's accession to the „Open Government Partnership“ Initiative, the role of civil society in promoting open data standards has intensified. In 2016, two open data management manuals were adopted. CPI Foundation, in cooperation with the Centre for Budget Monitoring from Amsterdam, prepared the Manual for Public Data Management,  and in the same year through the project "Proactive Transparency of Public Institutions" funded by the Government of the United Kingdom, Transparency International in Bosnia and Herzegovina prepared an Open Data Readiness Assessment in the Federation of Bosnia and Herzegovina. This analysis has shown that significant political, financial and institutional preconditions are needed to introduce open data.

New activities have been started through the Program for Strengthening Public Institutions in Bosnia and Herzegovina, funded by the German GIZ. In September 2020, the Open Data Readiness Assessment in Bosnia and Herzegovina  was published based on the recognised methodology of the World Bank. This is part of the activities envisaged by the Strategic Plan for Public Administration Reform in Bosnia and Herzegovina. The preparation of such an analysis is also planned for the Republika Srpska and the Federation of Bosnia and Herzegovina. This document provides an overview of key institutional shortcomings and the necessary steps for introducing open data into Bosnia and Herzegovina institutions.

International standards

As procurement involves a large proportion of public expenditure and the transfer of public resources to the private sector or non-profit organisations, it is particularly vulnerable to corruption. Public authorities should deploy new technologies to increase transparency over public procurement and encourage new economic actors to enter bidding processes in the confidence that free and fair competition is applied. By posting all tenders on a common online platform, the occurrence of unpublished tenders and direct awards will be minimised. Use of open contracting and open bidding solutions also allows greater scrutiny of the process, further reducing the scope for corrupt practices. Open contracting systems include a preventive effect, because officials will refrain from manipulating the contracting process if they know that comprehensive disclosure of the bidding and contracting processes will be revealed.

Local authorities should ensure that there is a comprehensive system in place to monitor compliance with public procurement legislation, and that there is a responsive mechanism for reviewing appeals and complaints, including prompt and comprehensive replies. Authorities should also monitor contract implementation, in particular time extensions and cost increases, to ensure that the benefits in terms of value for money and quality of delivery are not compromised during contract implementation.

The following international conventions and standards relate to public procurement:

• The Congress of the Council of Europe’s Resolution and Recommendation on Making public procurement transparent at local and regional levels and the OECD Checklist for Enhancing Integrity in Public Procurement provide guidance for enhancing transparency and promoting integrity in procurement.
• The OECD Recommendation of the Council on Public Procurement promotes a strategic and holistic use of public procurement systems across all levels of government and state-owned enterprises. The online Public Procurement Toolbox provides policy tools, specific country examples as well as indicators to measure any public procurement system.
• The WTO Agreement on Government Procurement establishes rules requiring that open, fair and transparent conditions of competition be ensured in government procurement.
• The EU Directive on Public Procurement ensures the best value for money for public purchases and guarantees the respect of the EU’s principles of transparency and competition.
• The UNCITRAL Model Law on Public Procurement is a legal template available to governments seeking to introduce or reform public procurement legislation for their internal market.
• The European Bank for Reconstruction and Development (ERBD) Guide to Electronic Procurement Reform provides information on and assistance with designing and implementing domestic eProcurement reforms.

 

Domestic context

In Bosnia and Herzegovina, about BAM 2.5 to 3 billion are spent annually on public procurement, representing about 7-8% of GDP.  In the EU, it is estimated that about 13% of public procurement funds "disappear" due to corruption.  Although there are no reference data for Bosnia and Herzegovina, these percentages are estimated to be higher. The public procurement system in Bosnia and Herzegovina was significantly improved in 2014 with the adoption of new regulations and the gradual introduction of electronic public procurement. Although this was a significant improvement over the previous legal and institutional framework, significant irregularities and corrupt practices are still observed in public procurement procedures in Bosnia and Herzegovina, which was particularly evident in public procurement during the COVID-19 pandemic. Moreover, the public procurement system still shows shortcomings in legal and institutional terms. The need to harmonize the Law on Public Procurement with the EU Directives on public procurement from 2014 and strengthen the capacity of competent institutions is stated as one of the key priorities set by the European Commission for Bosnia and Herzegovina in order to gain the status of a candidate country for EU membership.

Legislation

New regulations on public procurement in Bosnia and Herzegovina were adopted in 2014. The Law on Public Procurement of Bosnia and Herzegovina  and the accompanying bylaws were a significant step forward from the regulations in force since 2004. The law prescribed procedures and rules, defined the obligations of contracting authorities and bidders, legal protection and the role of competent institutions. The Public Procurement Agency of Bosnia and Herzegovina has the task of ensuring the adequate application of the Law and accompanying bylaws, while the Office for Review of Complaints is an independent and autonomous institution that handles complaints procedures in the second instance.

From the local to the state level, all contracting authorities in Bosnia and Herzegovina are obliged to conduct public procurement procedures through the central electronic public procurement portal https://ejn.gov.ba. According to the current level of functionality of the public procurement portal and in accordance with the law and accompanying regulations, information can be found on the portal: procurement notices, contract award notices, notices of cancellation of public procurement procedures, contract award notices through negotiated procedures without publication of notices, voluntary ex-ante transparency notices, reports on the public procurement procedure in small value procedures, decisions of the Office for Review of Appeals and decisions of the Court of Bosnia and Herzegovina. The tender documentation is available to the public only for completed procedures, while only registered bidders have access to the tender documents for the ongoing procedures. It is the tender documentation that contains technical specifications and qualifications that are crucial for effective monitoring. However, although a good part of the data from the procedures has been published on the portal, the data were not published in an open format and as such are not machine-readable or cross-searchable. The Law on Amendments to the Law on Public Procurement of Bosnia and Herzegovina, which would further improve the public procurement system in Bosnia and Herzegovina, is currently under consideration in the Parliamentary Assembly of Bosnia and Herzegovina.

Guidelines

In accordance with Article 92 of the Law, the Public Procurement Agency of Bosnia and Herzegovina is, among other things, in charge of publishing manuals and instructions for more efficient application of the law, but also providing technical assistance and advisory opinions to contracting authorities and bidders regarding proper application of the law and bylaws.

On its website https://www.javnenabavke.gov.ba/bs-Latn-BA/practical-application, the Public Procurement Agency has created a module with a list of questions and answers regarding the practical application of the Law on Public Procurement and the e- procurement portal. In addition, the Agency issued a series of instructions prescribing models of tender documentation and bids, publication of basic elements of contracts and contract amendments, conditions and methods of publishing notices and submitting reports in public procurement procedures in the e-procurement portal, instructions on managing and establishing qualification systems, minutes on the opening of bids and instructions on how to keep the minutes on the opening of bids.  In order to efficiently implement the e-procurement portal, the Instruction on how to use the information system for e-procurement was adopted.  In addition, the Public Procurement Agency has open telephone lines and e-mail addresses through which technical and advisory assistance to contracting authorities and bidders is provided twice a week within the prescribed period.

A significant number of manuals, guides, and instructions on the application of laws and bylaws in the field of public procurement in Bosnia and Herzegovina have been developed by civil society organisations. In cooperation with the Public Procurement Agency of Bosnia and Herzegovina, the Centre for Security Studies has published a Guide to Public Procurement in Bosnia and Herzegovina to promote transparency and accountability in the public procurement process.  For the purpose of more efficient prevention and abuse and more efficient prosecution and sanctioning of criminal acts of corruption in public procurement, in 2019 the Network of Civil Society Organisations "Account" presented the Manual for Judges and Prosecutors: Corruption Risks in Public Procurement Procedures.

International standards

• The International Public Sector Accounting Standards focus on the accounting, auditing, and financial reporting needs of central, regional, and local governments, related governmental agencies, and the constituencies they serve.
• The International Standards of Supreme Audit Institutions website contains a complete collection of professional standards and best practice guidelines for public sector auditors.
• A number of the conventions and standards for combatting corruption include provisions and clauses relating to external audit.

Domestic context

A legal and institutional framework for external audit has been established in Bosnia and Herzegovina. The external audit is performed through four institutions, the Audit Office of the Institutions of Bosnia and Herzegovina, the Audit Office of the Institutions of the Federation of Bosnia and Herzegovina, the Main Audit Service of the Republika Srpska, and the Audit Office of the Public Administration and Institutions of the Brčko District of Bosnia and Herzegovina in accordance with four accompanying laws.

Although the legislative framework is sound, SIGMA states  that one of the problems is that audit offices do not have a constitutional basis in accordance with international standards. This means that, although the laws guarantee the independence and autonomy of audit institutions, they are not adequately protected because laws can be changed more easily than the constitution. In the early 2000s, Bosnia and Herzegovina became a member of the international and European organisation of audit institutions – INTOSAI and EUROSAI. All audit institutions in Bosnia and Herzegovina have accepted the application of relevant International Standards of Supreme Audit Institutions (ISSAI) and other international audit standards. In accordance with the laws, the financial audit of local authorities is carried out by the competent entity audit institutions.

Legislation

Four laws regulate external audit in Bosnia and Herzegovina –Law on Audit of Institutions of Bosnia and Herzegovina,  Law on Audit of the Public Sector of the Republika Srpska,  Law on Audit of Institutions in the Federation of Bosnia and Herzegovina,  Law on Audit of Public Administration and Institutions in the Brčko District of Bosnia and Herzegovina.  All four laws are in line with relevant international regulations and standards. In order to more efficiently coordinate and implement joint internal and international activities, a Coordination Board of Audit Institutions of Bosnia and Herzegovina, the Republika Srpska and the Federation of Bosnia and Herzegovina was established. All audit offices/services, in accordance with the four mentioned laws on external audit, conduct financial audits, performance audits, and special audits. Local levels of government are subject to external audit by the Audit Office of the Institutions of the Federation of Bosnia and Herzegovina or the Public Sector Audit Service of the Republika Srpska. Given a large number of institutions subject to mandatory annual audit, the audit of local levels of government in the Federation of BiH and the Republika Srpska is carried out according to annual plans. When adopting annual audit plans, risk analyses are performed to identify other agencies or institutions in need of audit. Indicators considered include financial significance, previous audits, available human resources, requests for audit from other competent authorities, collected business information, and other data.

Guidelines

Improving the work of external audit institutions in Bosnia and Herzegovina is one of the strategic goals of public administration reform in Bosnia and Herzegovina. This primarily refers to strengthening the role and capacity of audit institutions and mechanisms for better implementation of audit recommendations.  Although parliamentary mechanisms for examining audit reports have been established at all levels of government, the level of control varies and is very limited. The European Commission states that the influence of all audit institutions in Bosnia and Herzegovina is limited, and that it is necessary to improve the level of implementation of recommendations. It further states that all audit institutions need to have better media coverage and develop their communication strategies to enhance the impact of their work.  In the period 2006-2016, the Coordination Board, within its competencies, adopted a number of guides and guidelines for financial audit, quality control in auditing, performance audit guide, IT audit guidelines and a guide for quality assurance of audit performance. SIGMA states that all audit institutions need to compile a document that would include all audit processes, listing templates and models to be completed alongside other supporting documents. Such a document would allow employees to understand better the processes and roles that each of them has.  In order to approximate the work of external audit, in May 2019, a Short Guide to the Audit Office of the Institutions of Bosnia and Herzegovina was published.

International standards

Clear rules and transparent reporting of political campaign financing and expenditures are essential to sustain trust in political candidates, political parties and government institutions. An imbalance in funding of political parties may result in an unfair advantage, handing undue influence to powerful narrow interests, running the risk that policies will be "captured" by narrow private interests, serving their goals over the public interest.

Mechanisms and rules on limits on party political financing, and on state financing of political campaigns, should be designed in a way that provides a level playing field for the different political candidates and parties competing in elections and serves to preserve the political forces' independence from financial supporters.

The following international conventions and standards relate to the financing of political parties:

 

Domestic context

In Bosnia and Herzegovina, the issue of financing political parties is attracting a lot of attention from politicians, officials of election bodies and commissions, and representatives of the academic community, especially civil society, which is closely following this issue. A democratic society can function successfully only if the access of political parties to resources is equal, fair and transparent because "political parties not only create a political agenda but also shape the institutional, economic and overall social development of the country, and supervise the administration and control the distribution and management of public resources."  The greater the degree of control of political parties over state institutions and society, the greater the risk of corrupt practices. Bosnia and Herzegovina has a legislative framework regulating the financing of political parties. However, as in many other areas, the legislative framework is not sufficient to prevent abuses.

Articles 3 to 7 of the Law on Financing of Political Parties of Bosnia and Herzegovina stipulates that a political party can be financed from the membership fee, voluntary contributions from legal and natural persons, publishing activities, sales of propaganda material and organisation of party events, incomes generated by property owned by a political party; the budget of Bosnia and Herzegovina, entities’ budgets, cantonal budgets, the budget of Brčko District of BiH, and from a budget of other units of local government in accordance with the law; profit from the income of the enterprise owned by a political party only for culture-related or publishing activities, loans from the banks.

 The annual income of the political party generated by owning property or through the owned enterprise may not exceed 20% of the amount of the total annual income of the party. According to Article 4 of the Law, any income exceeding 20% for the above-mentioned activities shall be donated to one or more charitable organisations registered in Bosnia and Herzegovina.

 The total amount of contributions to a political party:

-             made by a natural person shall not exceed the amount of BAM 10.000,00

-             made by the legal entity shall not exceed the amount of BAM 50.000,00

-             made by a member of a political party during one calendar year shall not exceed the amount of  

-             BAM 15.000,00

The funds from the budget are allocated to political parties, namely to the coalitions of political parties in the manner that:

a)           30% of the total amount of funds is equally distributed to all political parties, namely the coalitions of political parties that won the mandate,

b)           60% of the total amount is distributed equivalent to the number of delegates' mandates that each political party, coalition of political parties, and/or independent candidate hold at the time of allocation.

c)           10% of the total amount is distributed to parliamentary groups proportional to the number of seats belonging to less represented gender.

Legislation

Finansiranje političkih partija i izbornih kampanja regulisano je Izbornim zakonom Bosne i Hercegovine , Zakonom o finansiranju političkih partija,  Zakonom o finansiranju političkih partija iz budžeta Republike, grada i opštine,  Zakonom o finansiranju političkih partija Brčko Distrikta Bosne i Hercegovine,  zakonima o sprječavanju sukoba interesa (na državnom, entitetskom i nivou Brčko Distrikta Bosne i Hercegovine), zakonima koji reguliraju pitanje registracije političkih partija, zakonima koji se odnose na poslovanje svih pravnih osoba, uključujući i političke partije u Bosni i Hercegovini, kao i podzakonskim aktima Centralne izborne komisije Bosne i Hercegovine.  Svi ovi propisi uređuju pitanja finansiranja predizbornih kampanja političkih partija, njihovog redovnog, godišnjeg finansiranja, dozvoljene izvore finansiranja, dozvoljene iznose i limite finansiranja iz privatnih izvora, obavezu prijavljivanja donacija i finansijskog izvještavanja, te pravila za izdvajanje sredstava za rad političkih partija iz budžeta političkih zajednica. Pored toga, zakonima su predviđene i sankcije za nepoštivanje zakonskih odredbi.

Članom 3. stav (1) Zakona o finansiranju političkih partija BiH, taksativno su pobrojani izvori finansiranja političkih partija, tako da se političke partije mogu finansirati iz: a) članarina, b) dobrovoljnih priloga pravnih i fizičkih lica, c) izdavačke djelatnosti, prodaje propagandnog materijala i organiziranja partijskih manifestacija, d) prihoda od imovine u vlasništvu političke stranke, e) budžeta Bosne i Hercegovine, entitetskih budžeta, kantonalnih budžeta i budžeta Brčko Distrikta Bosne i Hercegovine, te budžeta drugih jedinica lokalne uprave i samouprave u skladu sa zakonom, te f) dobiti od preduzeća koja su u vlasništvu političke partije. Članom 8. istog Zakona propisani su tzv. zabranjeni prilozi, odnosno kome se zabranjuje finansiranje političkih partija - organima uprave države Bosne i Hercegovine, entiteta, kantona, Brčko Distrikta Bosne i Hercegovine, te gradskim i općinskim organima; javnim institucijama; javnim preduzećima; humanitarnim organizacijama; neimenovanim, odnosno anonimnim donatorima; vjerskim zajednicama; sindikatima, udruženjima i drugim neprofitnim organizacijama koje se finansiraju javnim sredstvima bez obzira na iznos sredstava; pravnim osobama u kojima uloženi javni kapital iznosi najmanje 25%, te drugim državama, stranim političkim partijama i stranim pravnim osobama.

Političke partije imaju obavezu vođenja poslovnih knjiga, kao i obavezu podnošenja godišnjeg finansijskog izvještaja Centralnoj izbornoj komisiji Bosne i Hercegovine. U tu svrhu uspostavljena je Služba za reviziju političkih partija, a čiji zadatak jeste da pregleda i kontrolira podnesene finansijske izvještaje, te obavlja reviziju finansiranja političkih partija.  U slučaju nepostupanja po odredbama zakona, Centralna izborna komisija političkoj partiji može izreći novčanu kaznu u rasponu od 500,00 do 10.000,00 KM.

 

Guidelines

In 2010, the Konrad Adenauer Stiftung published the Handbook for the Election Campaign . A special chapter is dedicated to finances during the election campaign within which issues such as financial planning, financial committees, and successful securing of donations or sponsorship are addressed.

In 2018, the International Foundation for Electoral Systems (IFES) published a report entitled Abuse of State Resources Research and Assessment Framework – Bosnia and Herzegovina ,  where special attention was paid to financing political campaigns. The report includes a detailed analysis of this and other areas susceptible to the misuse of state resources. It provides clear recommendations for overcoming a number of weaknesses of the existing system.

The Central Election Commission has developed an application for the electronic submission of financial reports of political parties. It serves to manage data on the financing of political parties and published a User Guide for submitting financial reports via the application "FI CEC BiH" and instructions for assigning a code to access the application FI CEC BiH for electronic submission of financial reports.  

International standards

Open policy making approaches enable governments to reach more informed and better designed policy outcomes through collaborative approaches that draw on a variety of perspectives and expertise. Different digital tools and analytical techniques are deployed so that policy is more evidence-based and data-driven. Models of engagement can include a representative citizens panel, crowdsourcing of policy ideas, or the use of collective intelligence to draw on the knowledge and expertise of a diverse public.

By the use of open data and citizen engagement, more informed, inclusive decisions can be reached, and more innovation applied in both the policymaking process and the resulting policy decisions. To maximise the possible gains of open policy making, local authorities could set up an open policy making team that publishes the data used to inform and shape policy decisions. and trains public officials in working with data to inform policymaking.

Although there are no specific open policy making standards, the following are useful points of reference:

• The Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) provides an international legal guarantee to this right, including the establishment of measures to ensure citizen participation.
• The Council of Europe’s Guidelines for civil participation in political decision making sets out standards for engaging with citizens and civil society.
• The Committee of Ministers of the Council of Europe’s Recommendation on the participation of citizens in local public life.
• The Congress of the Council of Europe’s Resolution and Recommendation on Transparency and open government provide standards and mechanisms to enhance transparency and promote the involvement and participation of citizens in the local public life.
• The Code of Good Practice for Civil Participation in the Decision-Making Process, adopted by the Conference of International NGOs of the Council of Europe.
• Civil Participation in Decision-Making Processes. An Overview of Standards and Practices in Council of Europe Member States, European Center for Not-for-profit Law (ECNL) for the European Committee on Democracy and Governance.
• The OECD Recommendation on Open Government helps to design and implement successful open government strategies and initiatives.
• The OECD’s Guiding Principles support the development of a culture of openness.
• The OECD’s Focus on Citizens: Public Engagement for Better Policy and Services explores how to put open policy making into practice.
• The OECD’s Observatory of Public Sector Innovation lists useful toolkits and resources.
• The Open Government Partnerships Guide and Toolbox provide an extensive range of support.
• The OECD Background Document on Public Consultation defines consultation and provides a summary of consultation tools.
• Both Australia and the UK have both produced useful toolkits.
• The Royal Society of the Arts, UK, and the Forum for Ethical AI addressed some of the AI challenges posed by new technology in Democratising decisions about technology. A toolkit.

Domestic context

In the past 20 years, the international community has invested significant funding in projects to promote participatory democracy. The intention of institutions from the local to the state level in Bosnia and Herzegovina to involve the interested public in policy making is evident, primarily through working groups, public hearings, online tools or other participatory mechanisms. An increasing number of public administration bodies or levels of government recognize the importance of involving the interested public in policy making. For example, the Canton of Sarajevo has established a Cantonal Development Committee to draft the Development Strategy 2021-2027, which, in addition to representatives of institutions, also includes representatives of civil society organisations, academia and the professional community.  Participation in policy-making is particularly important at the local level, where decisions are made and implemented that directly impact the daily lives of citizens. The network of civil society organisations Coalition to Work and Succeed Together, which from 2001 to 2008 conducted a broad campaign to establish cooperation of civil society with local authorities, resulted in the signing of nearly 100 Agreements between on the government side the mayor and municipal council, and on the side of civil society associations and foundations.  These agreements regulate the area of dialogue, cooperation and ultimately partnership between these two sectors of society. As a result of the same advocacy activities, in 2007 the first Agreement on Cooperation was signed between the Council of Ministers of Bosnia and Herzegovina and non-governmental organisations. Although these agreements did not have a direct effect, they represented a significant first step in building trust between the governmental and non-governmental sectors. In Bosnia and Herzegovina, a culture of participatory democracy and the establishment of legal and institutional mechanisms for cooperation between the governmental and non-governmental sectors is increasingly developing. The development of participatory democracy reflects the very complex constitutional structure of Bosnia and Herzegovina and the division of competencies between different levels of government. Thus, the legal and institutional framework for participatory democracy is decentralised and fragmented, and examples from practice vary, from very successful to unsuccessful.

Legislation

Regulations at different levels of government define the involvement of citizens in policy making. Thus, at the state and entity level and the Brčko District of Bosnia and Herzegovina, this issue is regulated by bylaws which prescribe public participation in the process of creating laws, bylaws and other strategic policies. The involvement of citizens in decision-making processes at the local level is defined by the entity laws on local self-government and the Statutes and other acts of municipalities and cities. The Law on the Principles of Local Self-Government of the Federation of Bosnia and Herzegovina  and the Law on Local Self-Government of the Republika Srpska  prescribe the mechanisms of direct participation of citizens in decision-making in local self-government. Both laws state that the forms of citizen participation in decision-making are through referenda, citizens' panels civic initiatives, local communities (local neighbourhood councils) as well as other forms of participation that are in accordance with the law. Both laws provide for the direct participation of citizens through local neighbourhood councils, but this institute of participation has been neglected and underused. In addition to those provided by law, a significant number of local authorities use other modern and innovative mechanisms of citizen participation in decision making and the creation of policies important for the development of local communities.

Guidelines

A significant number of analyses and manuals have been developed in Bosnia and Herzegovina, emphasizing the importance of public participation in policy making. Back in 2007, the Association of Citizens for the Development of Local Initiative ALDI developed a Handbook for Policy Analysis: Introduction to the Process of Policy Making at the Local Level, in which special attention is paid to the participation of citizens, civil society organisations, media and research groups in policy making.  In 2017, the Centre for Civil Initiatives published an Analysis of Public Participation in the Programming of Work in Government Institutions in Bosnia and Herzegovina (Citizens at the Centre of Decision Making).  This analysis provides an overview of the current state of public participation in policy-making at all levels of government, with examples of good practice and recommendations for improvement. It should be noted that in 2017 a new Agreement on Cooperation was signed between the Council of Ministers of Bosnia and Herzegovina and non-governmental organisations in Bosnia and Herzegovina. This Agreement, among other things, states that activities will continue to involve citizens and civil society organisations in all phases of creating and implementing public policies within the competence of the Council of Ministers of Bosnia and Herzegovina.  One of the results of this Agreement is the establishment of the Advisory Body of the Council of Ministers for Cooperation with Civil Society, which consists of representatives of five civil society organisations.  Although this Agreement was signed at the state level, it can serve as an example and guide how to strategically approach the development of participatory mechanisms for cooperation between the governmental and non-governmental sectors.

International standards

Participatory budgeting began in Porto Alegre, Brazil, in the late 1980s and has spread worldwide. To ensure that participatory budgeting is inclusive and reaches out to different groups, including minority groups and the disadvantaged, both online and in-person information events need to be organised, and support provided to citizens and different community groups and stakeholders in how to prepare a proposal for consideration. The introduction of gender-sensitive participatory budgeting can increase outreach and accessibility and can be planned in close co-operation with local civic groups with a focus on inclusion.

Although there are no specific standards for implementing participatory budgeting, the following serve as important reference materials:

• The Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) provides an international legal guarantee to this right, including the implementation of measures that would facilitate its exercise.
• The Congress of the Council of Europe’s Resolution on Gender budgeting recommends introducing gender budgeting methods in the annual budgets at local and regional levels.
• The OECD Policy Brief No. 22 provides a series of policy recommendations for how key stakeholders can contribute to successful participatory budgeting.
• The World Bank’s book Participatory Budgeting provides an overview of the underlying principles, analyses current practice and includes seven in-depth case studies.
• The UN Habitat’s 72 Frequently Asked Questions about Participatory Budgeting explores how to implement participatory budgeting.
• The World Atlas of Participatory Budgeting represents the widest compilation of data on the situation of these processes worldwide.
• The UK’s Participatory Budgeting Unit has a useful list of resources and toolkits.
• The Subnational Open Budget Survey Questionnaire of the International Budget Partnership sets out a range of metrics for measuring the openness of local government budgets.
• The Principles of Public Participation in Fiscal Policy of the Global Initiative for Fiscal Transparency.

Domestic context

Regulations in Bosnia and Herzegovina do not explicitly regulate participatory budgeting. Still, it fits into the broader concept of citizen participation in policy-making, which is defined by laws and bylaws, depending on the level of government. A significant number of local governments have published budgets on their websites, while recently more and more local governments are publishing "Citizens' Budgets". Budget transparency and promoting an understanding of the budget process is one of the important conditions for citizen participation in the process of budgeting, and for equipping citizens with knowledge to inform their ideas and suggestions for budget financing. About 50% of local authorities in Bosnia and Herzegovina – directly or through local communities – organise some kind of consultation with the interested public on draft budgets. Public hearings on the draft budget are the most common form of participation where citizens can give their ideas, suggestions and proposals for improving the budget. However, in Bosnia and Herzegovina, there is a lack of a more proactive and inclusive approach. The interested public would be able to provide ideas and proposals in the programming and budget planning phase, but there are only a few examples of local authorities that have enabled the public to submit proposals, ideas, suggestions and projects for funding through the local government budget before the budget has been drafted.

Legislation

When it comes to the local level, participatory budgeting is related to the provisions of the Law on Local Self-Government of the Republika Srpska and the Law on Principles of Local Self-Government of the Federation of Bosnia and Herzegovina, which prescribe forms of direct participation of citizens in local government decision-making. Article 111, paragraph 4, of the Law on Local Self-Government of the Republika Srpska explicitly stipulates that local authorities conduct a public debate on the draft statute, the draft decision on the budget and other acts determined by law. On the other hand, the Law on the Principles of Local Self-Government of the Federation of Bosnia and Herzegovina does not prescribe such a provision. Still, it does stipulate that public hearings on various issues of interest to the work of local government be organised through local communities. Therefore, citizens and the wider interested public have the opportunity through public hearings to submit their proposals, suggestions, ideas, and projects for inclusion in the budget.

Guidelines

In 2007, the Centre for Civil Initiatives published a guide, Small School of Budget, intended for the general public, for example those who directly or indirectly participate in budgeting in the Federation of Bosnia and Herzegovina. In 2021, the Public Interest Advocacy Centre published a Guide to Improving Budget Transparency. Although the Guide is intended for the institutions of Bosnia and Herzegovina, its guidance can be applied at the local level, mainly in the part related to citizen participation in the budget process and the contribution citizens can make to the phase of budget preparation, adoption, and execution. Most of the available manuals and guidelines on public participation in budgeting have been developed by civil society organisations.

International standards

Different forms of consultation range from informing and consulting citizens to crowdsourcing ideas for policies, deliberative debates and assemblies where citizens can develop potential policy solutions to inform decision-making, and collaboration where social enterprises, civil society organisations or expert groups either participate in the design or delivery of services.

To improve both the inclusiveness and efficiency of public consultations, each local authority should aim to have a unit that takes responsibility for co-ordinating the guidelines and procedures for implementing public consultations, and for ensuring that they are in accordance with the prevailing legislation. Such a unit could also train officers in different departments on running public consultations. In the case of smaller local authorities with more limited resources, a unit in the central government’s responsible ministry, such as a ministry of regional development, could provide such training and support on co-ordinating and updating guidance and procedures for public consultations at the local level.

Although there are no specific standards for implementing public consultations, the following are useful reference materials:

• The Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) provides an international legal guarantee to this right, including the establishment of measures to ensure citizen participation, such as consultative processes and local referendums.
• The OECD Background Document on Public Consultation defines consultation and provides a summary of consultation tools.
• The Council of Europe’s Guidelines for civil participation in political decision making set out the different types of civil participation in decision making.
• The Committee of Ministers of the Council of Europe’s Recommendation on the participation of citizens in local public life.
• The OECD Recommendation of the Council on Open Government supports initiatives for designing and delivering public policies and services, in an open and inclusive manner.
• Reaching Out: Guidelines on Consultation for Public Sector Bodies sets out good practice in the Republic of Ireland.

Domestic context

The most comprehensive approach to conducting public consultations in Bosnia and Herzegovina is at the state level. The Rules for Consultations in the Drafting of Legal Regulations of the Council of Ministers of Bosnia and Herzegovina have been adopted, and an online platform for conducting public consultations has been established.  No regulation or other act (strategy, action plan) can be considered at a Council of Ministers of Bosnia and Herzegovina session unless public consultations have been conducted. Although regulations govern the implementation of public consultations at the level of the entities and the Brčko District of Bosnia and Herzegovina, their impact is limited. Public consultations depend solely on the willingness and decision of the competent public institution to conduct public consultations. The European Commission states in the Report on Bosnia and Herzegovina for 2021 that the legal framework for public consultations is uneven and necessary to ensure purposeful and systematic public consultations. The Strategic Framework for Public Administration Reform in Bosnia and Herzegovina 2018-2022 envisages activities on a more inclusive approach and public involvement in creating, implementing and monitoring strategic plans, public policies and regulations. At the city and municipal level, there is no legal obligation to conduct public consultations. Still, there are examples of local authorities that consult with the interested public on specific issues within their competence.

Legislation

The obligation to conduct public consultations is regulated at the state, entity and Brčko District levels of Bosnia and Herzegovina. A legal framework for public consultations has been established and public consultations are systematically and centrally conducted at the state level through a web platform for public consultations https://ekonsultacije.gov.ba. The Rules for Consultations in the Drafting of Legal Regulations of the Council of Ministers of Bosnia and Herzegovina prescribe the obligation of all institutions of Bosnia and Herzegovina to conduct public consultations with the interested public in the drafting of legal regulations and other acts. To ensure the implementation of public consultations, Articles 22 and 25 of the Rules stipulate the obligation of institutions to submit, in addition to the material they submit to the Council of Ministers of Bosnia and Herzegovina, a Statement that public consultations have been conducted and an explanation of possible additional consultations. Also, each institution is required to submit the Report on Conducted Consultations. If this Statement and the Report are not part of the material, the Secretary General of the Council of Ministers of Bosnia and Herzegovina shall return the draft or proposed regulation or any other act to the institution of Bosnia and Herzegovina and set a deadline for public consultations. At the local level, no regulations have been adopted that explicitly regulate conducting public consultations with the interested public. Although not a legal obligation, there are examples of local authorities conducting public consultations with the interested public on various issues within their jurisdiction.

Guidelines

Public consultations represent an organised and systematic approach to involving the interested public in the processes of creating, adopting and implementing public policies. Back in 2010, a comprehensive Handbook for the Development of Public Policies for Civil Servants in Bosnia and Herzegovina was published, which in practical terms provides all levels of government in Bosnia and Herzegovina, among other things, with guidelines for public consultations and methods of consultation in public policy making. In November 2017, Western Balkan ministers in charge of public administration reform endorsed the Recommendations for Public Participation in the Western Balkans Decision-Making Process, which set out a series of steps that countries should take to ensure the highest level of citizen participation in public consultations. The 2019-2021 OGP Action Plan of Bosnia and Herzegovina envisages the improvement of the public consultation process by raising the capacity of civil society organisations to engage in public consultation processes.

International standards

It is important that the official response is provided promptly, and that clear and well-argued reasons are provided for the decisions taken or not taken in response to a public petition.

For public petitions to become a tool that resonates with the wider public, local authorities and civil society organisations should raise awareness of the nature of petitions and the procedures for gathering signatures and submissions of the petitions in their municipalities. Clarity should also be given on the status of electronic signatures to ensure that there is full transparency about the conditions that a public petition must satisfy to receive an official response.

The following international conventions and standards relate to public petitions:

• The Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) provides an international legal basis for this right, including the establishment of measures to ensure citizen participation, such as public petitions.
• The OECD’s Promise and Problems of e-Democracy provides information on the value and challenges of establishing an online petitioning platform.

Domestic context

A civic initiative or petition is recognised in Bosnia and Herzegovina in relevant laws or bylaws, depending on the level of government. The Constitution of Bosnia and Herzegovina does not explicitly provide for a provision on a civil petition. Still, it is recognised by the constitutions of the Federation of Bosnia and Herzegovina, the Republika Srpska and certain constitutions of the cantons. Although there is no official data or research on the effects of civil petitions, this mechanism is mainly used at the municipal level. The law prescribes the obligation to consider petitions in local authorities if all the necessary conditions are met. Given that electronic signatures have not yet been implemented in Bosnia and Herzegovina, there are no electronic tools for the legal submission of citizens' initiatives, except informal applications or websites that have no real effect.

Legislation

The Rules of Procedure of the House of Representatives of the Parliament of Bosnia and Herzegovina and the Parliament of the Federation of Bosnia and Herzegovina allow citizens to submit initiatives for amendments to laws. On the other hand, Article 32 of the Constitution of the Republika Srpska provides for the right of citizens to submit petitions and proposals and to receive answers to them.

In this regard, the Law on Referendum and Civic Initiative was adopted in the Republika Srpska.  Chapter IV of this Law prescribes the procedures and steps that need to be taken to realize the civic initiative. For this purpose, it is necessary to form an initiative committee of at least three members who have the right to vote. Article 42 of the Law defines that if a change in the Constitution, laws, other regulations or general acts within the competence of the National Assembly of the Republika Srpska is requested, the list of signatories of the initiative must contain at least 3,000 signatures of citizens. If the civic initiative requires a change in regulations and general acts within the competence of the municipal or city assembly, the list of signatories of the initiative must contain the necessary number of signatures of citizens entered in the voter list of the municipality or city, determined by statute in accordance with local government regulations. The Law further stipulates that the competent authority checks the lists of signatories, the application, the number of signatures and other formal details. Suppose the citizens, namely the initiative committee, assess that the competent body did not correctly review the formal conditions for submitting the initiative, it can file an appeal to the Supreme Court of Republika Srpska within 15 days of receiving written notification from the competent body. The Supreme Court decides on the appeal within 30 days, and the court's decision is final. When the list of signatories and the initiative is compiled following the regulations, the competent body acts in accordance with the deadlines determined by law, the statute or rules of procedure. The citizens 'initiative is submitted in the form prescribed by the Republika Srpska Law on Referendum and Citizens' Initiative.

Thus, the City of Banja Luka Statute stipulates that a civic initiative must contain at least 1,000 signatures of citizens entered in the City's voter list. The civic initiative is submitted in a form prescribed by the Law on Referendum and the Citizens' Initiative of the Republika Srpska. The City Assembly is obliged to decide on the submitted civic initiative no later than 60 days from the day of receipt of the initiative.

In this regard, Article 106 of the Law on Local Self-Government of the Republika Srpska prescribes that a civic initiative is one of the forms of direct participation at municipal and city level. Citizens can submit proposals for amendments to the statute, adoption of new regulations or amendments to existing regulations, calling a referendum, initiative to establish a local community, initiative to establish cooperation to perform tasks of common interest, achieving common development goals in the interest of citizens and businesses in their area. Article 111, paragraph 3, stipulates that the number of citizens who submit an initiative is determined by the statute, provided that it amounts to at least 5% of voters registered in the voter list for the area of local self-government.

When it comes to initiatives submitted by citizens at the municipal and city level n the Federation of Bosnia and Herzegovina, Article 43 of the Law on Principles of Local Self-Government of the Federation of Bosnia and Herzegovina stipulates that citizens submit their proposals through civic initiatives, citizens' associations, NGOs and in other ways determined by the statute. In addition, Article 45 of the Law stipulates that citizens have the right to submit initiatives to a local authority, and that the Assembly Council must discuss such an initiative if it is supported by a certain number of citizens. The number of citizens’ signatures shall not exceed 5% of registered voters in the local self-government unit which is determined by the statute.

Guidelines

Procedures and conditions for submitting civic initiatives are prescribed in more detail by the statutes of municipalities or cities. Thus, Article 94 of the Statute of the Municipality of Čitluk prescribes that citizens may submit an initiative to adopt a particular act or resolve an issue within the competence of the Municipality. The initiative must be reasoned, include a proposal to secure funding if needed, and must be signed by at least 100 voters registered in the central voter list. The Municipal Council must decide on the initiative at the next session and within 60 days at the latest. There are only a few manuals or recommendations available for the implementation of civic initiatives, which are the result of the work of civil society organisations. Thus, in 2016, the analysis Civic Initiative – Direct Participation of Citizens in the Democratic Development of Local Communities was published. This document also contains a number of recommendations for improving civic initiatives in local communities. At the end of 2017, the Handbook on Civic Initiatives was published, created after implementing two civic initiatives, "Battle for Sutjeska" and "Civic Initiative for Borik". This Handbook aims to outline all regulations and procedures in Bosnia and Herzegovina to implement civic initiatives with an explanation of all steps to implement the civic initiative effectively. The association "Oštra Nula" published A brief Introduction to the Formal and Informal Opportunities of Citizens to Act, within which, among other forms of direct participation of citizens, the procedure for submitting a civic initiative is explained.

International standards

When initiated by citizens or groups of stakeholders, a referendum might form part of a campaign against a perceived harmful impact on their livelihoods or the natural environment, such as a plan for a new industrial park, a tunnel to re-route cars under a river or some other urban development.

Where there is both legislation providing for local referenda, and guidelines on how to hold referenda, there is usually a minimum percentage of the eligible voting population whose signatures are required to initiate a referendum. In some cases, the mayor or elected council can also decide to formulate a question for a local referendum. Depending on the legislative framework, the referenda may be binding on the local government or consultative, where the final decision rests with the elected council.

It is important that the legislation and procedures are clear, so that citizens know the framework within which the results of a referendum will be acted upon, and what response is required from the executive or elected council of the local authority. As with public petitions, it is important to raise awareness of the procedures for gathering signatures and the status of electronic signatures to ensure that there is full transparency about the conditions that need to be met before a referendum will take place. Transparency on political party financing should also be applied to the funding of a referendum campaign, including ceilings on expenditure, and an independent audit of funding and expenditure.

The following international conventions and standards relate to local referenda:

 

Domestic context

Neither the Constitution of Bosnia and Herzegovina nor the Constitution of the Federation of Bosnia and Herzegovina nor most of the Constitutions of the cantons ¹ in the Federation of BiH contains explicit provisions on the referendum. On the other hand, Article 77 of the Constitution of the Republika Srpska stipulates that the National Assembly may decide to make a decision on certain issues within its competence after the citizens have voted in a referendum. Therefore, a referendum in Bosnia and Herzegovina cannot be initiated on an issue to be decided by the institutions of Bosnia and Herzegovina, the institutions of the Federation of Bosnia and Herzegovina, or the institutions of eight of the ten cantons in the Federation of Bosnia and Herzegovina. However, the entity laws on local self-government in the Federation of Bosnia and Herzegovina and the Republika Srpska prescribe this possibility, while in the Republika Srpska a law has been adopted regulating the procedure for calling a referendum. Although mechanisms for initiating local referenda in Bosnia and Herzegovina have been established, they are used very rarely or not used at all.

Legislation

Articles 43 and 44 of the Law on the Principles of Local Self-Government in the Federation of Bosnia and Herzegovina stipulate that citizens can directly participate in matters within the competence of local authorities, among other things, through a referendum. Procedures are elaborated in more detail by law and the statutes of municipalities and cities. The decision made in the referendum is binding for the local government council. Also, the initiation of the referendum is envisaged by the Law on Local Self-Government of the Republika Srpska. Their procedures are prescribed in more detail by the statutes of local authorities and the Law on Referendum and Civic Initiative, which was passed in 2010. This Law prescribes the procedures for calling referenda at the entity and local level, bodies for conducting referenda, protection of citizens' rights, the manner of citizens voting in referenda and other procedures for conducting referenda. According to the law, a proposal for calling a referendum at the local level can be submitted by one-third of the elected councillors, or by the mayor or city mayor, or with the signatures of at least 10% of voters registered in a municipality or city or 3,000 voters if more than 30,000 voters are registered. The referendum shall be conducted between 30 days and six months from the date of entry into force of the Decision on calling a referendum. The referendum can be initiated for different issues such as changes in municipal or city boundaries, adoption of spatial planning documents, adoption or amendments of regulations, community infrastructure projects, and other issues that are within the competences of the local authorities in accordance with the regulations. In accordance with Articles 35 and 36 of the Law on Referendum and Civic Initiative, a referendum is valid if more than half of the citizens with voting rights have voted. The referendum question must receive the support of a simple majority of those who voted. If the referendum was successful and a majority of citizens voted for a specific issue, the competent body is obliged to conduct an appropriate action within six months of the referendum.

Guidelines

Detailed guidelines and procedures for initiating a referendum are prescribed by the statutes of municipalities or cities in the Federation of BiH, and by the Law and statutes of municipalities and cities in the Republika Srpska. For example, the Statute of the City of Zenica stipulates that the initiative for a referendum may be submitted by one-third of councillors, the City Mayor, or one-third of local neighbourhood councils based on a decision made by the Assembly of Citizens of the local community. In contrast, the Statute of the City of Široki Brijeg stipulates that a proposal can be submitted by the President of the City Council, the City Mayor, the majority of councillors or the council of the local community for whose territory a referendum is requested. Thus, there are different approaches and procedures by local authorities in the Federation of BiH. The statutes prescribe referendum procedures; however, the system is decentralised and inconsistent and depends on the provisions of the Statute in a particular local authority.

International standards

The following international conventions and standards relate to bribery:

• The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions establishes legally binding standards to criminalise bribery of foreign public officials in international business transactions. It is the first and only international anti-corruption instrument focused on the ‘supply side’ of the bribery transaction.
• The International Anti-Bribery Standard 37001 specifies a series of measures to help organisations prevent, detect and address bribery.
• The OECD Good Practice Guidance on Internal Controls, Ethics, and Compliance which supports the convention on combating bribery.

Domestic context

In Bosnia and Herzegovina, corruption is widespread and systematically disrupts any reform processes aimed at establishing the functioning rule of law. A high degree of corruption causes enormous moral and material damage to society. “Citizens and businesses face an inflexible legal system and significant corruption… About 10 per cent of companies say they had to bribe public officials in the previous year, between one- and two-thirds of citizens believe relations are necessary to get a job, to be enrolled in school or to obtain official documents.” A major problem is that in Bosnia and Herzegovina there are de facto four autonomous criminal justice systems, which result primarily in internal non-compliance with regulations and then non-compliance with international standards. While the Criminal Code of Bosnia and Herzegovina is relatively well harmonised with international standards, the entity criminal laws, as well as the Brčko District of Bosnia and Herzegovina, are lagging in the harmonisation process, and not even the GRECO's binding recommendations have been implemented.The fact that bribery in the private sector is not explicitly criminalised in criminal law is also very important, which is also one of GRECO's binding recommendations.

In addition to the institutional and legal framework, which have significant weaknesses, a major problem is non-enforcement of laws and a lenient penal policy, which has an insufficient impact on the prevention of corruption.

Legislation

Criminal laws in Bosnia and Herzegovina criminalize two offences separately, which fall under the notion of bribery. The criminal offence of accepting gifts and other forms of benefits (Criminal Code of the Federation of Bosnia and Herzegovina and of the Brčko District of Bosnia and Herzegovina) ¹, or the criminal offence of accepting bribes (Criminal Code of Republika Srpska) ² implies the act of extortion of some benefit, amounting to an act of corruption that is committed in connection with the performance or non-performance of a certain official act.

This criminal offence manifests itself in three forms:

1. real passive bribery in which the act of execution is reflected in requesting or receiving gifts or other benefits or receiving promises of gifts or other benefits, with the aim of committing an act within the public official’s powers, which action an official or responsible person should not otherwise perform, or omission of an action that she/he would otherwise have to perform;
2. false passive bribery – a situation when an official or responsible person requests or receives a bribe or promise of a bribe, in order to act within the limits of her/his official authority and take legal actions that fall within her/his regular business, or not to take actions for which she/he is not authorised by the law;
3. subsequent passive bribery – demanding or receiving a bribe after a committed or unperformed (legal or illegal) official action.

Penalties for this criminal offence are prescribed in different ranges in the criminal laws in BiH.

Another form of corruption, functionally related to the aforementioned criminal offence, is the criminal offence of giving gifts and other benefits, regulated through all four criminal laws in Bosnia and Herzegovina. This act implies inducing an official or another responsible person to violate the lawful performance of his/her service. This, as well as the aforementioned criminal offence, manifests itself in three forms as:

1. areal active bribery - which means making or promising a gift or some other benefit to an official or responsible person for him/her to perform an action within his/her authority which he/she should otherwise not perform, or for him/her not to perform the action that he/she is otherwise obliged to perform;
2. false active bribery, which means making or promising a gift or some other benefit to an official or responsible person in order for him/her to perform, within his/her powers, an act that he/she is obliged to perform, or not to perform an act that he/she should not otherwise perform;
3. mediation of bribery, which is an independent criminal offence that can be committed through various actions (by acquainting with each other the bribe-giver and recipient, for instance).

Penalties for the criminal offence of giving gifts and other forms of benefits or giving bribes and the previous criminal offence are prescribed in different ranges in the criminal laws in Bosnia and Herzegovina. In all criminal laws, except Republika Srpska, an alternative to a fine in addition to imprisonment is envisaged for a certain form of this criminal offence.

 

International standards

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.
• The OECD Recommendation on Public Integrity shifts the focus from ad hoc integrity policies to a context dependent, behavioural, risk-based approach with an emphasis on cultivating a culture of integrity across the whole of society.

Conflict of interest is also covered by the following international standards and guidelines:

• The Committee of Ministers of the Council of Europe’s Recommendation on Codes of Conduct for Public Officials and the European Code of Conduct for all Persons Involved in Local and Regional Governance cover the general issues normally thought to be necessary for avoiding such conflicts.
• The Congress of the Council of Europe’s Resolution and Recommendation on Conflicts of interest at local and regional level propose a set of measures to mitigate the risks of conflict of interest and ensure that it is identified at an early stage.
• The OECD Guidelines for Managing Conflict of Interest in the Public Service identify principles and standards for developing policies.
• The Congress of the Council of Europe’s Resolution and Recommendation on Making public procurement transparent at local and regional levels and the OECD Checklist for Enhancing Integrity in Public Procurement provide guidance for enhancing transparency and for promoting integrity in procurement

 

Domestic context

Conflict of interest is a widespread corruption risk in Bosnia and Herzegovina. According to regulations, conflict of interest implies cases when elected officials, executive office-holders and advisers find themselves in a situation where their private interests affect or may affect the legality, openness, objectivity, or impartiality of the performance of public functions. The legal framework on conflicts of interest was adopted to prevent or to sanction situations in which public officials, through their role, can benefit themselves or persons who are their family members or with whom they are otherwise related.

As mentioned earlier in Chapter 1, two segments need to be distinguished in Bosnia and Herzegovina. On the one hand, there are the conflicts of interest of elected or appointed officials, which is always in the public spotlight. On the other hand, there are the conflicts of interest of civil servants in administrative bodies.

At the end of 2020, Transparency International BiH published the Register of Public Officials, which currently includes data on 763 office-holders. According to Transparency International BiH, 61 officials at the state, entity, and cantonal levels now hold additional positions in public institutions and public enterprises. Many of them are in direct or partial conflict of interest. Thus, the Register shows that many public officials perform two or three functions in the public sector where their private interests often intertwine with public ones.

Legislation

Conflicts of interest of civil servants and employees in public administration bodies in Bosnia and Herzegovina are regulated by the laws on civil service at the state and entity level, and the level of the Brčko District of Bosnia and Herzegovina. The laws prescribe incompatibilities with the duties of civil servants in such a way that the functions, activities or positions that lead to a conflict of interest with the official duties of civil servants are listed exhaustively. Unlike the state and Federation of BiH law on civil service, the law of the Republika Srpska and the law of the Brčko District of Bosnia and Herzegovina contain special provisions that define conflicts of interest, and how to act in the event of a conflict of interest.

The issue of conflicts of interest of elected officials, executive office-holders and advisers is regulated by four laws – the Law on Conflict of Interest in Government Institutions of Bosnia and Herzegovina, the Law on Conflict of Interest in Government Bodies in the Federation of Bosnia and Herzegovina, and the Law on Prevention of Conflict of Interest Srpska, and the Law on Conflict of Interest in the Institutions of the Brčko District of Bosnia and Herzegovina. Laws have been enacted to prevent and/or sanction situations in which public officials may themselves benefit or family members or persons otherwise related with them may benefit through the performance of their functions. The Central Election Commission of Bosnia and Herzegovina is responsible for law enforcement at the level of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Brčko District of Bosnia and Herzegovina. At the same time, in Republika Srpska, there is a special Commission for Prevention of Conflicts of Interest in Republika Srpska authorities. The Commission is formed by the National Assembly of the Republika Srpska as a first instance body and the Appeals Commission as a second instance body. Sanctions are envisaged for violating the law – measures prohibiting candidacy for any elected position for four years and fines in the range of BAM 1,000 to BAM 10,000.

International standards

As one type of corruption, embezzlement is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Domestic context

In Bosnia and Herzegovina, embezzlement is one of the criminal offences of corruption, bribery and crimes against official and other responsible duties. Unlike some other criminal offences in this group, embezzlement is a criminal offence which, conditionally speaking, is "easier" to prove, in relation to criminal offences of "high corruption" (so-called white-collar corruption), for example, criminal offences committed by high political officials.

Legislation

Embezzlement in the service referred to in Article 221 of the Criminal Code of Bosnia and Herzegovina, Article 384 of the Criminal Code of the Federation of Bosnia and HerzegovinaA, or Embezzlement under Article 348 of the Criminal Code of Republika Srpska and Article 378 of the Criminal Code of Brčko District of Bosnia and Herzegovina implies the misappropriation of money, valuables or other movable assets  by a person to whom they are entrusted in the service of or in general at work in public institutions at all levels of government in Bosnia and Herzegovina with the intention of obtaining illegal property gain for themselves or others. Thus, the act consists of the misappropriation of money, securities or other movable assets, and the consequence of the action consists of obtaining for oneself or for another person some benefit, or in causing some harm to another, or more severe violation of another's rights. The perpetrator of a criminal offence can only be an official or responsible person, and intent is required with regard to guilt. The prescribed sanction for this criminal offence is imprisonment in the range of six months to five years or, for a more severe form of the offence, imprisonment in the range of one to ten years.

International standards

As one type of corruption, fraud is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Domestic context

All forms of corruption are practised in Bosnia and Herzegovina. Fraud (in-service) is often associated with abuse of office or authority, and forgery of documents, and is often prosecuted as multiple criminal offences.

Legislation

One of the corrupt criminal offences in Bosnia and Herzegovina is fraud in service under Article 222 of the Criminal Code of Bosnia and Herzegovina, Article 385 of the Criminal Code of the Federation of Bosnia and Herzegovina and Article 379 of the Criminal Code of Brčko District of Bosnia and Herzegovina, and Article 317 of the Criminal Code of Republika Srpska. This criminal offence is a particular form of fraud committed by an official or responsible person with the intention of obtaining illegal property gain for himself or another by submitting false accounts or misleading an authorised person to make a prohibited payment. The difference between this crime and the ordinary crime of fraud is reflected in the fact that in this crime the focus is on the violation of the lawful performance of official duties. Thus, the act of the offence consists of misleading the authorised person in such a way as to create a misconception about specific facts, on the basis of which the authorised person would commit some illegal act during the performance of the service. For committing this criminal offence, imprisonment in the range of six months to ten years is envisaged, depending on the amount of illegally obtained property gain.

International standards

As one type of corruption, nepotism is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The Congress of the Council of Europe’s Resolution and Recommendation on Fighting nepotism within local and regional authorities sets out standards for good practice and presents strategies for preventing corruption in the recruitment procedures of European local and regional governments.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Domestic context

Nepotism has been a daily occurrence in Bosnia and Herzegovina for many years, but it is not explicitly criminalised. Nepotism, bribery, and corruption have become a way of life in Bosnia and Herzegovina, and the existing legislative framework is perfectly suited to those who practise nepotism. "Political parties are trying in all possible ways to maintain control over employment in public institutions, public companies and the like, and are therefore not ready to improve the laws." On the other hand, the presence of political influence on the judiciary contributes greatly to the impunity of abuses. Arbitrary rulings mean that a blind eye is turned to the malpractice of putting private interests before the interests of the citizens of Bosnia and Herzegovina.

Legislation

There is no criminal offence of nepotism in the criminal laws of Bosnia and Herzegovina. Given that nepotism primarily refers to the employment of close relatives in public sector bodies, the law on civil service in administrative bodies of different levels of government in Bosnia and Herzegovina could be relevant and applicable if the provisions on the incompatibility of circumstances with the duties of civil servants, for example conflicts of interest, include provisions prohibiting work under the guidance of a close relative. On the other hand, conflict of interest laws indirectly define nepotism, stipulating that a conflict of interest exists in situations where an elected official, executive or adviser has a private interest that may affect the impartial and objective performance of his or her function, whereby private interest implies any advantage for her/him or her/his family or other persons or organisations with which he has had or has business, political and other connections. Elected officials, executive office-holders and public advisers must not place their private interest above the public interest.

The Sarajevo Canton has made a big step forward in this regard. Namely, in April 2021, the Assembly of Sarajevo Canton adopted the draft Law on Prevention of Nepotism and Party Employment in Public Sector Bodies in Sarajevo Canton. The law prevents work under the leadership of a close relative and other cases of conflict of interest. It prohibits nepotism and party employment in administrative bodies, public companies, public institutions and legal entities founded by the Sarajevo Canton. The law was drafted based on a comprehensive analysis of international and legal acts of EU member states that relate to the prevention of nepotism and party employment in public sector bodies. This move represents a significant step of the Sarajevo Canton Government towards transparency and openness in its work.

International standards

• The United Nations International Covenant on Civil and Political Rights (Articles 19, 21, 22 and 25), further elaborated in paragraph 25 of the Human Rights Committee’s General Comment No. 25.
• The Council of Europe’s European Convention on Human Rights (ETS No. 5), in particular Articles 10 and 11, and Article 3 of the Protocol No. 1 to the Convention (ETS No. 9).
• The United Nations Convention against Corruption, in particular Articles 7, 17 and 19.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173).
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174).
   

The misuse of administrative resources during electoral processes is covered by the following international standards and guidelines:

• The Council of Europe’s Venice Commission and the OSCE/ODIHR Joint Guidelines for Preventing and Responding to the Misuse of Administrative Resources during Electoral Processes specify a series of measures and laws to be adopted in that regard.
• The Council of Europe’s Venice Commission report on the Misuse of Administrative Resources during Electoral Processes.
• The Congress of the Council of Europe’s Resolution on The misuse of administrative resources during electoral processes: the role of local and regional elected representatives and public officials and its Explanatory Memorandum.
• The Congress of the Council of Europe’s Resolution on Preventing corruption and promoting public ethics at local and regional levels and its Explanatory Memorandum.
• The Congress of the Council of Europe’s Checklist for compliance with international standards and good practices preventing misuse of administrative resources during electoral processes at local and regional level.
• The Congress of the Council of Europe’s booklet on Administrative Resources and Fair Elections provides practical examples and guidance.

Domestic context

Komplicirana politička i izborna struktura u Bosni i Hercegovini, stvorena Daytonskim mirovnim sporazumom 1995. godine i danas predstavlja plodno tlo za razne zloupotrebe, pa tako i za zloupotrebe javnih resursa u izbornim kampanjama. Zbog etničkih podjela, biračko tijelo unaprijed je podijeljeno i određeno. Većina glasa prema etno-nacionalnoj pripadnosti, a nakon izbora „političari mogu „vratiti“ usluge dobijene tokom kampanje davanjem olakšica i zapošljavanjem u državnoj službi, favoriziranjem ugovora o nabavkama i davanjem drugih doprinosa svojim pristalicama“.

„Zloupotrebu javnih resursa u izbornoj kampanji predstavlja i korištenje javnih medijskih servisa, koji su javna preduzeća finansiranja iz budžeta, a koje vladajuće partije koriste u propagandne svrhe, ne samo kroz plaćeno oglašavanje, već, što je mnogo opasnije, kroz kontrolu nad uređivačkom politikom javnih servisa, koji posljedično u pozitivnom svjetlu predstavljaju vladajuću stranku i njene funkcionere“.

Upečatljiv primjer zloupotrebe službenih resursa u političke svrhe je slučaj dolaska direktorice Kliničkog centra Univerziteta u Sarajevo u posjetu Kliničkom centru Tuzla službenim automobilom registriranim na Kabinet bošnjačkog člana Predsjedništva BiH – njenog supruga Bakira Izetbegovića.

Primjer zloupotrebe službenih resursa u predizbornim kampanjama je slučaj korištenja helikopterske službe Vlade Republike Srpske za obilazak predizbornih skupova. Tako se član Predsjedništva Bosne i Hercegovine iz srpskog naroda, Milorad Dodik od početka predizborne kampanje pojavio na najmanje sedam izbornih skupova Saveza nezavisnih socijaldemokrata (SNSD), čije se mjesto i vrijeme poklapaju sa odredištima helikopterskih letova "AV 119" (AW 119). ), koji je u vlasništvu Vlade Republike Srpske.

Legislation

The legal framework in Bosnia and Herzegovina does not adequately identify the misuse of administrative resources in election campaigns because the regulations do not contain provisions regulating the conduct of civil servants, the use of state, or administrative and other resources during the election period.

Although civil service laws prescribe the professional impartiality of civil servants by prohibiting civil servants from membership in political parties and working under the instructions of political parties, no special provisions regulate “the ability of civil servants to participate in campaign activities or participate in political work, either during or after business hours ".

Article 7.2 of the BiH Election Law stipulates that the competent municipal authorities are obliged to ensure equal treatment of parties and candidates in their requests to "use public places and public facilities for campaign purposes, including holding gatherings, displaying advertisements, posters and placards". Paragraph 3 of this article stipulates that “the competent authorities shall not allow political parties, coalitions, lists of independent candidates and independent candidates to place advertisements, posters, or to write their names or slogans related to the election campaign, within or on buildings housing authorities at all levels, public enterprises, public institutions and local communities, on religious buildings, on public roads and public areas, except in places provided for billboards and advertising ”.

Although Article 7.3 exhaustively lists what is not allowed for candidates and supporters of political parties, lists of independent candidates, lists of members of national minorities and coalitions, as well as independent candidates and their supporters, and employees or otherwise engaged in the election administration, it does not mention the use of official vehicles (and even helicopters) for political purposes, which is a very common occurrence in Bosnia and Herzegovina.

The Law on Financing of Political Parties in Bosnia and Herzegovina explicitly prohibits the financing of political parties by public companies, but also by private companies that have concluded a public procurement contract with the executive authorities at all levels in Bosnia and Herzegovina if the value of the contract in one calendar year exceeds the amount of BAM 10,000.00.

International standards

As one type of corruption, extortion is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Domestic context

The Global Corruption Barometer for 2013 showed that “28% of respondents stated that they gave bribes in connection with the provision of some public services, with health and the police leading the way. Most of these respondents – 41% – said they gave bribes to speed up the process of getting services, 30% gave bribes as a token of gratitude or as a gift, 18% because they could not otherwise get a service, and 11% to get a cheaper service.“

According to a 2015 Transparency International BiH survey, a quarter of citizens said they had the opportunity to be bribed. The research results showed that "the professions that come in the most contact with bribery are doctors, politicians and police officers". More than 800 citizens contacted the free hotline 0800 55555 operated by Transparency International BIH, seeking legal advice. The largest number of reported cases, as in previous years, related to the public administration sector - citizens mainly reported corrupt employment practices.

Legislation

Extortion is a criminal offence according to the entity criminal laws and the Criminal Code of the Brčko District of BiH in such a way that someone who, in order to obtain illegal property gain by force or severe threat, forces another to do or not do harm to his or someone else's property, shall be punished by imprisonment for a term between three months and five years, and one and five years respectively.

International standards

As one type of corruption, clientelism is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally -binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The Congress of the Council of Europe’s Resolution and Recommendation on Fighting nepotism within local and regional authorities sets out standards for good practice and presents strategies for preventing corruption in the recruitment procedures of European local and regional governments.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Domestic context

Bosnia and Herzegovina is often called a "captive" state, in which systemic corruption controls all spheres of state organisation, political and social life. Thus, clientelism, as one of the manifestations of corruption, is very present in Bosnia and Herzegovina. "The main actors of political clientelism are people from the top of political parties, the business world and individuals who at the same time occupy political functions and positions in public companies or private companies.“ Clientelism involves the exchange of resources, such as money, positions, employment, laws and regulations, information, and other non-financial resources, to satisfy private interests.

Bosnia and Herzegovina is a "dominant clientelist society ... without belonging to a political party it is not possible to get a job, do business successfully, and often access to justice itself depends on belonging to a political party"."Completely subordinated to the cartel's interests in remaining in power and gaining personal gain, the public sector as such rests on clientelism and cronyism, through which fully effective control over it is ensured."

In the overall ranking of an index measuring the level of clientelism in the media in southeast Europe, Bosnia and Herzegovina shares the lowest position with Romania with an index score of -0.67.

Legislation

All the regulations cited in this Handbook (civil service laws, election law, laws on prevention of conflict of interest, political party financing laws, codes of ethics) contain – although not explicitly – provisions that should prevent the emergence and spread of clientelism. However, the regulations are only formally enforced. This is most evident in the sphere of employment in the public sector. "Responsible jobs are given to politically eligible people, vacancies in the public sector are just a farce, and getting a job is agreed within parties and outside institutions – most often in pubs."

International standards

As one type of corruption, patronage is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The Congress of the Council of Europe’s Resolution and Recommendation on Fighting nepotism within local and regional authorities sets out standards for good practice and presents strategies for preventing corruption in the recruitment procedures of European local and regional governments.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Since the misuse of administrative resources during electoral processes is the most widespread manner to use patronage as a form of corruption, the following international standards are of relevance:

• The Congress of the Council of Europe’s Resolution on the Misuse of Administrative Resources during Electoral Processes: The Role of Local and Regional Elected Representatives and Public Officials provides international standards and best practices to tackle the misuse of administrative resources.
• Joint Guidelines of the Venice Commission and OSCE/ODHIR for Preventing and Responding to the Misuse of Administrative Resources during Electoral Processes aim to assist decision makers in adopting laws and initiating concrete measures to prevent misuse of administrative resources.

Domestic context

Alongside nepotism, patronage is one of the most common forms of conflict of interest in Bosnia and Herzegovina. Nepotism, clientelism and patronage as "a special phenomenon where a person is selected for employment or promoted to a better-paid job due to suitable political affiliation or political ties" form an unbreakable link in the corrupt chain of employment practices in the public sector in BiH. This is particularly pronounced at the level of local communities. It often happens that “office-holders, as well as officials who perform tasks in local communities, are related by family, friends and business. In such circumstances, the private interests of individuals and groups often prevail over the public interest and lead to nepotism, cronyism, and conflicts of interest, which due to inadequate mechanisms to prevent them inevitably open the door to the development of corruption. This is especially present in the field of labour relations in local self-government units where, due to deficiencies in regulations governing this area and inadequate mechanisms for preventing conflicts of interest, there are numerous abuses, both in the recruitment process and promotion and status of officials. which causes the emergence of nepotism and trade in political and other influences.“

Legislation

The laws on civil service at all levels of government in Bosnia and Herzegovina contain provisions on the manner of employment in administrative bodies and positions and activities incompatible with the duties of civil servants. In addition, codes of ethics include provisions on the prevention of conflicts of interest and the prevention of abuse of office, which apply not only to civil servants but also to all employees in administrative bodies.

However, incoherent internal systems and the internal inconsistency of regulations in some cases openly legalize corruption and its manifestations. Thus, for example, according to the Law on Civil Service of the Federation of Bosnia and Herzegovina, which also applies to the local level of government in the Federation of BiH, a civil servant is appointed by the head of the civil service institution, after having obtained the opinion of the FBiH Civil Service Agency, “from the list of successful candidates who passed the public competition".  Such a provision opens space for unlimited arbitrariness of the heads of administrative bodies – who are politically appointed persons – to bring and employ persons close and suitable to them into the bodies and institutions headed by them in order to reward those who brought their party votes in the elections. Even in cases where the head of the administrative body is prescribed to nominate the first from the list of successful candidates after the competition procedure, the law is formally met, and practice shows that in public competitions “mostly the best advisers are elected officials, party activists and family members of politicians and senior civil servants".

Nepotism, clientelism and patronage are especially pronounced in employment in companies, institutions and organisations with public authority because the laws on public enterprises and regulations on institutions and organisations with public authority do not contain the institute of public competition in employment of workers.