Election Commission Bosnia and Herzegovina Sarajevo

Transcription

1 Election Commission Bosnia and Herzegovina Sarajevo RULES On Conducting the Procedure (Law on Conflict of Interest in Governmental Institutions of BiH) Sarajevo, April 2003

2 Rules on Conducting the Procedure As per Article 17, paragraph 1. (c) of the Law on Conflict of Interest in Governmental Institutions of Bosnia and Herzegovina ( Official Gazette of BiH, Number: 16/02) the Election Commission of Bosnia and Herzegovina on its session held on April 30, 2003 adopted the following: I. Fundamental Principles Rules On Conducting the Procedure Article 1 These Rules define the unique procedures as well as the manner for initiating, conducting and deciding on the procedure when the regulations are directly applied, when the rights, obligations and legal interests of elected officials, executive officeholders, advisors and legal entities (enterprises) are addressed in the administrative matters, and they relate to the violation of the provisions of the Law on Conflict of Interest in Governmental Institutions of Bosnia and Herzegovina, and which are the exclusive responsibility of the Election Commission of Bosnia and Herzegovina (hereinafter: the Election Commission of BiH). 1. Subsidiary Application of the Rules Article 2 Concerning the legal matters, for which the Law on Administrative Procedures or Law on Administrative Disputes prescribe a special procedure, they are addressed in line with the provisions of those laws, provided that all issues not regulated by a specific law shall be in line with these Rules 2. Principles of Procedure Article 3 For the procedure conducted according to these rules the fundamental principles of the procedure are applied, such as: Legality; Protection of rights and freedom of citizens and protection of public interest; Transparency; Efficiency; Material truth; Hearing of parties; Economic efficiency; Assistance to an uneducated party; Evidence evaluation;

3 Tow instance Executability; Definitiveness of a decision; Validity; Usage of language and letters; Independence; Public. II Party and Representation of the Party 1. Party Article 4 The Party in the procedure in terms of these Rules is an authorized person of an enterprise, elected official, executive officeholder, advisors or close relative mentioned in Article 3. 1b) of the Law on Conflict of Interest in Governmental Institutions of Bosnia and Herzegovina. The legal entity (enterprise) is also considered to be the party in procedure. 2. Authorized Person Article 5 During the procedure the Party may be represented by an authorized person, i.e. an authorized person of an enterprise, within the limits of the approved authorization, i.e. authorization to represent. III Communication with Parties 1. Documents Article 6 Claims, forms, proposals, denunciations, appeals, and other reports are considered to be documents, with which the parties and legal entities address to a responsible body. According to the rule, the document are submitted directly or sent via mail, or are verbally said to be put in the minutes, and they may be faxed, unless otherwise prescribed. 2. Inviting

4 Article 7 An official person conducting the procedure is authorized to invite the persons whose presence is required during the procedure. Inviting is executed in writing, unless some other method is prescribed by a specific regulation. Article 8 The name of the body, name and surname, and address of the person being invited shall be indicated in the written invitation, as well as the place, day and, when possible, the precise hour, and then the evidence material the invited person is obliged to bring. If the nature of the matter allows, the invited person may be allowed, depending on his or her own will, instead of coming to submit a specific statement in writing by a certain date. 3. Minutes Article 9 The minutes concerning the statements contained in the denunciation shall be written about the verbal hearing or some other important activity during the procedure, as well as about relevant verbal statements of the parties or third parties during the procedure. According to the rules, the minutes shall not be written about less relevant activities and statements of the parties and third parties, which do not make significant impact on resolving the issues, on management of the course of the procedure, statements, official observations, verbal instructions and orders, and also about circumstances concerning only the internal operations of the body where the procedure is conducted, but only an official note will be written within the documentation, which shall be signed by the official person, who has written it, indicating the date. In terms of these Rules the minutes shall be the statement in terms of Article 18, paragraph 6 of the Law on Conflict of Interest in Governmental Institutions of BiH, which the official person must take before pronouncing the sanction on the prescribed form. Article 10 The following elements shall be recorded in the minutes: name of the body taking the action, number and date, place where the action is taken and the subject matter for which it is taken, names of official persons, present parties and their representatives or authorized persons and other persons who are present when the action is taken. The minutes shall contain an accurate and brief course and contents of the action taken during the procedure and statements that have been given, and that these actions and statements have to be limited to the concerned subject matter of the procedure. The minutes shall list all documents used for any purpose when the action was taken, and if needed, these documents may be attached to the minutes.

5 The statements of the parties, witnesses, experts and other persons participating in the procedure, and which are relevant for making a decision, shall be recorded into the minutes as accurate as possible, and if needed, with quotation of their words. All conclusions made during the procedure shall be recorded into the minutes. Article 11 The minutes shall be taken in a tidy manner and nothing in the minutes shall be deleted. The words that are crossed must remain legible before concluding the minutes, and the official person taking the action of the procedure shall certify them with his/her signature. Nothing shall be added or changed in the minutes already signed. Amendments to the concluded minutes shall be recorded in the Annex to the Minutes concerning the same procedure. Article 12 Before concluding the minutes, the minutes shall be read to the heard persons and other persons participating in the action of the procedure. These persons are entitled to review the minutes by themselves and make their own objections, and the official person is obliged to enable it. At the bottom of the minutes it shall be said that the minutes have been read and that there have been no objections, or if there have been, the contents of the objections shall be described briefly. The objections shall be signed by the person who has made them. Then the minutes shall be signed first by persons who have been heard, i.e. those who have given the statements during the procedure, and finally the minutes shall be certified by the signature of the official persons who have made the action, and the note taker, if there any. The parties, witnesses, experts and other persons who have been heard during the procedure shall sign the minutes beneath the section of the minutes where their statements have been written. If there have been face to face discussions, the section of the minutes concerning this segment, shall be signed by persons who have been in face-to face discussions. If the minutes consist of several pages, they shall be marked in a numerical order, and each page shall be certified at the bottom of the page by the initials of the official person who conducts the action during the procedure and by the initials of the persons whose statements are written. If any person does not want to sign the minutes, or is removed before the conclusion of singing the statement, it shall be recorded into the minutes as well as the reasons due to which the signature has been denied. It is allowed to prove inaccuracy of the statement. IV Delivery in writing 1. Manner of delivery of written documents

6 Article 13 The delivery of written documents (invitations, decrees, decisions, conclusions and other official documents) is done, according to the rule in a way that the written document is delivered to the person to whom it is intended. The delivery is done via mail or it is done by an institution through its official person. The person to whom the written document has to be delivered, may be invited to receive the written document only on an exceptional case, when it is required by the nature or importance of the document, and if such a manner of the delivery is envisaged by a specific regulation. The delivery is done only on working days during the daytime. According to the rule, the delivery is done at the home address or working place where the person to whom the delivery is made works, or in the official premises of the enterprise. 2. The delivery receipt Article 14 The proof of the executed delivery of the written document shall be the delivery receipt. The delivery receipt contains: the name of the sending institution, number and date, the name of the written document being delivered, the name of the party, i.e. of the person to whom the written delivery is sent and his/her address. The date of the delivery shall be written on the delivery receipt and it shall be signed by the recipient and delivery person. The recipient shall personally write in letters the date of the delivery on the delivery receipt. If the recipient refuses to sign the delivery receipt, the delivery person shall put it on the delivery receipt and write in letters the date of the delivery and due to this it shall be considered that the delivery has been executed. If the delivery is executed to some of adult persons, the delivery person shall indicate on the delivery receipt the person to whom the written document has been delivered (family member, neighbor, etc.). If the delivery is executed in the form of a notice, the date of the execution of the notice shall have to be written on the delivery note as well as the date of delivering the written document to the municipal, i.e. city body or the post office. V Initiation of Procedure and Claims (requests) of the Parties 1. Initiation of Procedure Article 15 The procedure before the Election Commission of BiH shall be initiated upon:

7 The request of the Election Commission of BiH; The request of the person concerned; and Based on the denunciation by another person. Article 16 The request, i.e. the denunciation notice is submitted in writing. The request, i.e. the denunciation notice shall contain: Name, surname, address and possibly the telephone number of the elected official, executive officeholder, advisor or close associate or the name and the location of the enterprise; The name of the duty which the elected official, executive office holder or advisor performs, or the name and surname and address of the authorized person of the enterprise; Possibly more precise data with the evidence on performing the incompatible duties; Possibly the names of the persons who can confirm the statements from the requests, i.e. allegation on the incompatible duties. 2. Previous investigative procedure Article 17 Before making a final decision the facts have to be determined as well as circumstances relevant for the resolution and the interested parties have to be allowed to protect and exercise their rights and legal interests, which is the responsibility of the official person within the Implementation Department conducting the procedure (hereinafter: the official person). The responsible person conducting the procedure shall order as per his/her official duty demonstration of all evidence if found to be necessary for resolving the case. The official person conducting the procedure shall be responsible as per his/her official duty to collect the factual data about which the body responsible for resolving the cases keeps the records. The official person shall do the same concerning the facts about which the records are kept by another body, i.e. enterprise, institution or other legal entity. Article 18 The party shall be responsible to present factual state, on which the request of the party is based, accurately, truly and definitely. During the procedure the party shall give the statement verbally in line with the rule, and the party may give it in writing. Concerning the official subject matter or when broader, expertise explanations are needed, the

8 official person conducting the procedure may order to the party to submit the statements in writing, determining a sufficient deadline for that. In that case the party is also entitled to request to be allowed to give the statement in writing. Article 19 The official person conducting the procedure is obliged, if needed, to inform the party about his/her legal rights during the procedure and to warn the party about the legal consequences of his/her actions or omissions in the procedure. 2. Verbal hearing Article 20 The official person conducting the procedure shall determine, upon his/her initiative or upon the proposal of the party, the verbal hearing in any case when it is useful for resolving the case, and s/he must determine it: In the case where two or more parties participate with conflicting interests, or When investigation or hearing of witnesses and experts have to be conducted. Article 21 The verbal hearing is public. The official person conducting the procedure may exclude the public for the entire verbal hearing or only for one part of it: If the reasons of moral and public security requires it; If there is a serious and immediate threat to obstruct the verbal hearing; If relations within a family have to be discussed; If circumstances have to be discussed, which legislation prescribes them as a secret. 3. Demonstration of Evidence Article 22 The fact based on which the decision is made shall be determined by evidence. Anything suitable to determine the real situation shall be used as the means of evidence as well as anything else is suitable to an individual case, such as documents, i.e. certified copies of the documents, witnesses, experts, investigation, etc. Article 23

9 Whether a fact to be proved or not shall be determined by the official person conducting the procedure, depending on whether that fact may have an impact on resolving the case. According to the rule, the evidence is presented after it has been determined what is disputable from the factual point of view or what has to be proved. Article 24 Notorious facts are not to be proved. In the same way, the facts of which the existence is not envisaged by the law are not to be proved, but it is allowed to prove the non-existence of such facts, unless otherwise defined by the law. Article 25 Upon the completion of the investigative procedure the official person shall send the complete report to the Election Commission of BiH for a further decision making process. VI- Decision making Article 26 The Election Commission of BiH shall make a decision concerning whether an action or omission violates the provisions of the Law on Conflict of Interest in Governmental Institutions of BiH. Based on the facts determined during the procedure, the Election Commission of BiH shall make a decision with regard to the case which is the subject matter of the procedure. Each decision as such must be marked. The decision is made in writing and it shall be sent to the party as an original version or as a certified copy within ten (10) days after it has been made, and to the responsibly body where the elected official, executive officeholder, advisor or close associated performs the duty. Article 27 The decision shall contain: the name of the body which makes the decision, number and date in the heading, regulation concerning the responsibility of that body, the name of the party and his/her legal representative or of an authorized person, if any, purview, rational, instruction on legal remedy, signature of the authorized person and the stamp of the body. The party may submit a request to postpone the execution in line with Article 18 of the Law on Administrative Disputes. When prescribed that charges do not postpone the execution of the decision, it must be written in the section of the decision which relates to the legal remedy.

10 VII - Sanctions Article 28 The sanctions referred to in Article 20 of the Law on Conflict of Interest of Governmental Institutions of BiH shall be imposed on the elected official, executive officeholder, advisor, close relative or legal entity (enterprise). When determining the fine for the elected official, executive officeholder, advisor or close relative the Election Commission of BiH shall take into consideration the property status of the person against the procedure is conducted, taking into account the level of his/her salary, his/her other income, property and family obligations (extenuating and aggravating circumstances). When determining the fine for the legal entity (enterprise) the financial performance of the enterprise, based on the balance sheet and income statement, and final annual accounting period shall be taken into consideration. VIII Right to Appeal Article 29 The dissatisfied party may initiate an administrative dispute against the decision of the Election Commission. The administrative procedure shall be initiated based on the charges to the Administrative Department of the Court of Bosnia and Herzegovina. The charges are filed within two months after the day when the plaintiff has been informed, i.e. when s/he received the disputed final legal document, i.e. after the day the disputed decision has been published. The charges for initiating the administrative procedure do not delay the execution of the disputed final legal document, unless the Election Commission or Court decides otherwise, in line with the Article 18 of the Law on Administrative Disputes. The Election Commission shall make a conclusion concerning the request for postponing the execution of the disputed final act within three days after receiving the request. The evidence of the filed charges has to be attached to the request. IX Rules of the procedure in case of suspicion Article 30 Concerning the request of any person for interpretation of suspicions with regard to possible existence of violation of the Law on Conflict of Interest in Governmental Institutions of Bosnia and Herzegovina the Election Commission may provide its opinion. The suspicion mentioned in the paragraph above exists when the Law on Conflict of Interest in

11 Governmental Institutions of Bosnia and Herzegovina dose not precisely regulate the existence of the conflict of interest, on which the Election Commission shall assume an official attitude. Article 31 Initiating the procedure in terms of this section shall not make any impact on or delay the course of the investigation, procedure during the investigative actions or making the final decision concerning the subject matter, unless otherwise decided by the Election Commission of BiH. If subsequently the facts and circumstances have been determined, having a significant impact on making a decision different than the previously issued opinion, that does not relieve the person from the responsibility on whose request the opinion has been issued. If the subsequently changed circumstances based on which the Election Commission of BiH issued the opinion have happened as a consequence of the wrong information consciously provided by the claimant, the advisory opinion of the Election Commission of BiH in terms of Article 30, paragraph 1 of these Rules shall be taken in no case as extenuating circumstances, but it will be neglected or it will be considered to be an aggravating circumstance in case of possible initiating of the procedure concerning the subject matter of the conflict of interest towards the claimant. X- Gifts Article 32 Elected officials, executive officeholders, advisors or close relatives shall not be allowed to receive money, check or other securities regardless of the amount, and if they receive the mentioned items, they are obliged to report it to the Election Commission of BiH. If the persons from the previous article or any other person receives a gift on behalf of them (things, rights, services, or any other benefit given or promised) in the value higher than 50,00 KM they are obliged to report the gift to the Election Commission. The obligation to report the gift is on the end user, that is, the person for whom the gift is intended (gift-recipient). Article 33 Reporting of the received gift from the previous Article shall be done in the premises of the Implementation Department of the Election Commission of BiH, and by providing a statement on the form prescribed for that purpose. The official person shall issue a receipt on the reported i.e. delivered gift to the official for having reported the received gift on the prescribed form. The record of the received gifts shall be a constituent part of the annual report of the Election Commission of BiH on implementation of the Law on Conflict of Interest. The gifts reported, i.e. delivered to the Implementation Department, the official person shall deliver the responsible body of BiH and they shall become the property of BiH.

12 The gift value is its market value, and in case of dispute concerning the gift value the rules and regulations for determining the value shall be applied in line with the Law on Administrative procedure in BiH. Article 34 In case of violating the provisions on gifts, the regular procedure for determining the responsibility in line with the Law on Conflict of Interest and Section V of these Rules shall be applied to the person referred to in Article 32 of these Rules. XI- Openness 1. Personal financial situation Article 35 Elected official, executive officeholders and advisors are obliged to submit regular annual reports on their financial situation, as envisaged by the law, rules and regulations of the Election Commission of BiH and these Rules. The Law on Conflict of Interest requires from elected officials, executive officeholders and advisors to enable an insight into their personal financial interests in order to provide confidence and integrity of public duties, and to demonstrate the possibility of performing duties entrusted to them without violating the confidence of the public. The purpose of the financial reports is to facilitate the prevention of conflict of interest, and to identify possible conflict of interest in a way that they will enable the insight into the financial interest. Upon the request of the Election Commission of BiH the persons from paragraph 1 of this Article are obliged to submit an extraordinary report on the financial situation in case of determining the key facts on possible existence of conflict of interest. Article 36 Persons mentioned in Article 35, paragraph 1 of these Rules are obliged to submit the financial reports to the Election Commission of BiH within 30 days after the day they assumed the duty. Persons mentioned in Article 35, paragraph 1 of these Rules are obliged to submit the financial reports to the Election Commission at least once within 12 months. Persons mentioned in Article 35, paragraph 1 of these Rules who stopped performing the duties are obliged to submit their financial reports to the Election Commission within 30 days after they stopped performing their duties to which they had been appointed or elected. Article 37

13 Financial reports are submitted on the Personal Data Form, prescribed by the Election Commission of BiH, and it contains the following data: a. Membership in any management, steering, supervising, executive board or in the capacity of an authorized person in a public enterprise, name of the enterprise and accurate name of the duty in the public enterprise. b. Membership in the management board or Directorate, or performing duties of a privatization agency manager, name of the agency and accurate name of the duty in the agency. c. Description and type of the involvement in a private enterprise, name of the private enterprise. d. List of close relative (as defined by Article 3 of the Law on Conflict of Interest), and the information in terms of items a, b, and c of this paragraph. e. List of additional compensations, owner s interest (more than KM) or financial interest (more than KM annually). f. Declaration. g. Date of submitting the report and personal signature. The financial report shall be taken into account as the evidence in case of initiating the investigative procedure concerning the conflict of interest. 2. Openness during negotiations Article 38 Each public or private enterprise which submits a bid for providing the Government with goods or service shall submit a written statement attached to the bid. The statement in terms of paragraph 1 of this Article shall be submitted in the form prescribed by the Election Commission of BiH, and it shall contain the elements required in Article 13. of the Law on Conflict of Interest. 3. Disclosure of Information on Enterprise Article 39 Each enterprise in which a governmental body makes one or more investments in the total amount higher than five thousand (5.000) KM annually, is obliged to submit to the Election Commission of BiH a written report within ten (10) days after making a final decision on investment made. 4. Openness of Governmental Institutions Article 40 A governmental institution which makes one or more investments into an enterprise in the total amount of five thousand (5.000) KM annually is obliged to submit to the Election Commission the statement concerning that investment within fourteen (14) days after the investment has been made.

14 The statement in terms of paragraph 1 of this Article shall be submitted in the form prescribed by the Election Commission of BiH, and it shall contain the elements required in Article 13. of the Law on Conflict of Interest. 4. Analysis of reports, statements and forms Article 41 All data from the financial report, statement or form shall be entered into an appropriate database, and the analysis of the financial report shall be conducted by an authorized person of the Implementation Department within the Secretary of the Election Commission of BiH. Upon the completion of data entry from the report, statement or form into the database, and after the complete and appropriate analysis of the contents, the authorized persons from the Implementation Department within the Secretary of the Election Commission of BiH shall certify with their signatures that the report, statement or form have been analyzed in line with the Law on Conflict of Interest and with these Rules. Article 42 All Governmental bodies, institutions and courts at all levels in BiH are obliged to provide the Election Commission of BiH with the legal assistance requested and all other types of assistance. XII- Reporting Article 43 The Election Commission of Bosnia and Herzegovina shall submit to the Presidency of Bosnia and Herzegovina a report on its performance every six months, and the public shall be informed at least once in a year. To the end of protecting the integrity of the duty and implementation of the investigative procedure, it shall be forbidden to disclose the names and surnames of elected officials, executive officeholders, advisors, close relatives and name of enterprises which are the subject of the investigations before the completion of the procedure, i.e. before the final decision of the Election Commission of BiH is made concerning that subject. The final decision of the Election Commission of BiH concerning the subject may be published after being made with a remark whether the decision is final or whether it is allowed to conduct an administrative procedure. XIII- Statute to limitations Article 44 The procedure to impose sanctions with regard to violation of the Law on Conflict of Interest in Governmental Institutions of BiH must be initiated within four years of determining the alleged violation.

15 After expiration of this deadline the absolute statute of limitations for application of sanction shall be in place. XIV Transitional and final provisions Article 45 If the Election Commission of BiH upon the received request for the opinion, after having an insight in all valid facts, determines clear and irrefutable evidence on existing the conflict of interest, the Election Commission orders the claimant (elected official, executive officeholder or an advisor) to resign each of incompatible duties within five (5) working days after receiving the order and to inform in writing the Election Commission of BiH within the same deadline, or if the enterprise is concerned, to submit within the set deadline the evidence that actions have been taken in accordance with the order of the Election Commission. If the person or enterprise mentioned in the previous paragraph act according to the order of the Election Commission of BiH, such person or enterprise are not subject to sanctions. Article 46 If the person or enterprise from paragraph 1 of the previous Article does not act according to the order of the Election Commission of BiH within the set deadline, the regular procedure shall be conducted, which is defined by the Law on Conflict of Interest in Governmental Institutions of Bosnia and Herzegovina and these Rules, Section V. Article 47 The provisions of Articles 45 and 46 of these Rules shall be in force thirty (30) days after coming into force. Article 48 These Rules come into force on the day of their publishing, and they shall be published in the Official Gazette of BiH, official gazettes of entities and Official Gazette of the District Brcko. Number: /03 Sarajevo, April 30, 2003 President of the Election Commission of BiH Hilmo Pasic, M. Sc.