MONITORING REPORT ON IMPLEMENTATION OF UNITED NATIONS CONVENTION AGAINST CORRUPTION - (Executive summary) - December, 2016 Preparation of this publication was financially supported by the Embassy of the Kingdom of Norway. The views expressed in this Report represent the views of TI BiH and do not necessarily reflect the views of the Embassy.
GENERAL CONCLUSIONS: The greatest challenge of Bosnia and Herzegovina in the Convention application is represented by preventive measures. Although certain improvement in this segment is visible, it is clear that goals defined in Strategy for the Fight against Corruption 2015 2019, but also in previous strategies and action plans, are still not realized. At the same time, anticorruption bodies, except for the Agency for the Prevention of Corruption and the Coordination of the Fight against Corruption, have not been established in a way that ensures functional guarantees of independence. The improvement is visible in establishment of adequate legal framework that regulates the issue of civil servants code and public procurement, so it is important to ensure the consistent implementation of these preventive mechanisms. Transparency of public services' work is still not at the level required by the Convention, although the law on free access to information was brought, and it is mostly due to the fact that public institutions put insufficient effort in proactive communication with the public regarding the information of public significance. In the area of criminalization, steps towards complete harmonization of criminal codes in BiH have been made. Except for the article 20 of the Convention that refers to illicit enrichment that is not regulated by the special article in BiH, all other acts are criminalized. Nevertheless, since the Convention stipulates the highest standards of protection against corruption through criminal legislation, it will be necessary to continue investing in jurisprudence capacities in order to ensure consistent implementation of these standards. Besides, taking into account the crimes of corruption and its effects in the society, it is necessary to ensure the continuation of bringing of measures to protect the person reporting it, in order to ensure the access to protective measures in the whole BiH. In the area of international cooperation in fight against corruption, BiH legal system may be regarded only as partly harmonized. Such assessment is given primarily because of the fact that, besides the extremely advanced legal framework on international cooperation on criminal matters, international cooperation depends on the principle of dual criminality. This principle means that international cooperation in criminal matters is possible if based on the act that is prohibited both in BiH and the other country. Since the legal system is not fully harmonized with the Convention, this cooperation does not cover all acts from the Convention. Still, full harmonization of criminal legislation with Convention provisions should overcome this challenge. CONCLUSIONS BY CHAPTERS AND INDIVIDUAL PROVISIONS OF THE CONVENTION CHAPTER II - PREVENTIVE MEASURES Article 5 - Preventive anti-corruption policies and practices UNCAC ARTICL E Article 5 State level FBIH RS BD Cantonal level Fully Fully Fully Partly Partly Article 5 states Convention goals (Preventive anti-corruption policies and practices), and state parties are required to develop and implement effective anti-corruption policy, that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability. Taking into account the constitutional structure of Bosnia and Herzegovina, the Law on the Agency for the Fight against Corruption and the Coordination of the Fight against Corruption stipulates the obligation to
bring anti-corruption policies at all levels of government, including the state level, entity level, cantonal level and the level of the Brcko District of Bosnia and Herzegovina 1. At the state level, the Strategy for the Fight against Corruption in Bosnia and Herzegovina for 5015-2019 was adopted, as well as the complementary Action Plan, and they represent the fifth strategic anticorruption document that was brought in Bosnia and Herzegovina with the aim of planned and strategic opposition to corruption in Bosnia and Herzegovina. Entities and some cantons brought their own anti-corruption policies 2, while Brcko District and some other cantons are still in the process of development of anti-corruption policies. Levels at which the Strategy was adopted also adopted the complementary action plans in order to ensure the most efficient implementation of anti-corruption policies 3. According to the available data, besides the state and entity levels, anticorruption policies were adopted by the Sarajevo Canton Government, the Government of Posavina Canton, the Government of Canton 10 and the Government of Tuzla Canton. Other cantons are still developing their anti-corruption documents. Also, the Law on the Agency established the obligation to monitor application effects and adequacy of laws and bylaws in the prevention of corruption, as well as to initiate changes and issue opinions on harmonization of anti-corruption legislation. Bosnia and Herzegovina actively participates in numerous international and regional anti-corruption organizations and initiatives (GRECO 4, UNODC 5, MONEYVAL 6, SIGMA 7, RAI 8 and many others, so it may be concluded that Bosnia and Herzegovina accepted this recommendation that results from the article 5 of UN CAC. Article 6 Preventive anti-corruption body or bodies UNCAC ARTICLE Article 6 State level FBIH RS BD Cantonal level Fully Partly Partly Partly Partly Article 6 defines the need to establish one or more bodies responsible for implementation, but also for monitoring and harmonization of anti-corruption policy implementation, that would be independent and adequately professionally and financially equipped. The Law on the Agency for the Prevention of Corruption and the Coordination of the Fight Against Corruption established central anti-corruption body at the level of Bosnia and Herzegovina, which is the Agency. Article 6 of the Law on the Agency stipulates that the Agency is independent and autonomous 2 BiH Strategy for the Fight Against Corruption for the period 2015-2019 was adopted on May 7, 2015 at 6th session of the Council of Ministers; Strategy for the Fight Against Corruption 2016-2019 of the Federation of Bosnia and Herzegovina was adopted on September 26, 2016 at 69th session of the FBiH Government; Strategy for the Fight Against Corruption 2013-2017 was adopted by the Government of the Republika Srpska in December 2013. 3 Report on the work of the Agency for the Prevention of Corruption and the Coordination of the Fight Against Corruption for 2015 available at http://apik.ba/izvjestaji/izvjestajiagencije/default.aspx?id=919&langtag=bs-ba 4 The Group of States Against Corruption of the Council of Europe, 5 United Nations Office on Drugs and Crime, 6 Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism 7 Support to the rule of law and administration 8 Regional Anti-corruption Initiative for South-East Europe
organization, responsible for its work to the BiH Parliamentary Assembly. Such a status of the Agency, besides its competencies, establishes the very autonomy of the Agency, while in the last several years the Agency has been professionally and financially capacitated, although not fully. The Agency is primarily the preventive body and the body in charge of coordination of anti-corruption activities with bodies in charge of the fight against corruption at all levels of government in Bosnia and Herzegovina. Article 10 of the Law on the Agency stipulates competency of the Agency, which is primarily the development of the umbrella anticorruption policy, monitoring and implementation of policies, initiation of amendments to anti-corruption laws, raising awareness of corruption consequences, and coordination of the fight against corruption among bodies in BiH. According to the existing regulations, the Agency has no investigative authorities regarding corruption prevention in BiH. In cases of receipt of reports on possible corruptive behavior, the Agency shall, according to the law, deliver those to the relevant police or prosecutors' authority, which are authorized to criminally prosecute perpetrators of criminal offences. Article 7 Public sector UNCAC ARTICLE Article 7 State level FBIH RS BD Cantonal level Partly Partly Partly Partly Partly Article 7 of the Convention defines principles for the state parties that relate to the comprehensive prevention of corruption and development of mechanisms that shall have positive effects on reduction of corruption in public sector. The stated principles of civil servants recruitment in BiH are regulated by laws on civil servants at the level of the state 9, entity 10 and at the level of Brcko District 11. Nevertheless, it is noticeable that in other segments of public service, public institutions and public companies it is still possible to have the discretion right, given by certain rulebooks, to recruit persons without the public competition, or candidates who had the least number of points in application procedure within public institutions or public companies 12. Especially worrying is the intention of the existing government shown in the recruitment of civil servants for managerial positions. Adopted amendments of the Law on Civil Service in FBiH represent the obvious example of civil service weakening through open politicization, because the existing civil servants at managerial positions shall be selected in the future according to simplified procedures that leave more than enough room for the head of the institution to bring in persons he finds the most suitable. Without civil servants at managerial positions who were selected through the competitive procedure and based on merits, the stability and continuity of work of administrative institutions are jeopardized, especially in situations of government formation crisis that lasts for months. Also worrying is the intention to apply the similar solution at the level of BiH, while it is in force in the Republika Srpska. Paragraph 4 of this article stipulates establishing and maintaining of the system that promote transparency and prevent conflicts of interest in the public sector. Prevention of conflicts of interest in BiH is regulated by several laws and bylaws, depending on the status of the person within the public sector. For instance, special laws on conflicts of interest 13 regulate special 9 Law on Civil Service in BiH Institutions ( BiH Official Gazette, No. 19/02, 35/03, 4/04, 17/04, 26/04, 37/04, 48/05, 2/06, 32/07, 43/09, 8/10 and 40/1) 10Law on Civil Service of BiH Federation (''BiH Federation Official Gazette, No.: 29/03, 23/04, 39/04, 54/04, 67/05, 8/06 and 04/12), Law on Civil Servants of the Republika Srpska (''RS Official Gazette, No.: 01-1875/08) 11 Law on Civil Service in Administrative Bodies of Brcko District (''Brcko District Official Gazette, No.: 01-02- 240/14) 12See more in the example https://ti-bih.org/prijedlogom-zakona-o-sluzbenicima-namjestenicima-uorganima-jedinica-lokalne-samouprave-rs-prihvacen-veliki-broj-preporuka-ti-bih/ 13 Law on Conflict of Interest in Governmental Institutions of Bosnia and Herzegovina (''BiH Official Gazette 13/02, 16/02, 14/03, 12/04, 63/08, 18/12, 87/13, 41/16), Law on Conflict of Interest in Governmental Institutions of the Federation of Bosnia and Herzegovina (''BiH Federation Official Gazette, No. 70/08), Law
obligations of elected dignitaries, holders of executive functions and advisors in performing the public function in governmental institutions of BiH, BiH Federation, Republika Srpska and Brcko District. Especially worrying is the solution introduced by adopting of the Law on Amendments to the Law on Conflict of Interest in Governmental Institutions of Bosnia and Herzegovina (''BiH Official Gazette, No. 87/13 14 ) in 2013, when the Commission on Deciding on the Conflict of Interest was established, consisting of 3 members from each of both chambers of BiH Parliamentary Assembly, and the Director and Deputy Directors of the Agency for the Prevention of Corruption and the Coordination of the Fight against Corruption. Since majority of members of this Commission comes from BiH Parliamentary Assembly, this calls into question its independence. The question of the status of institution that shall apply the Law on Conflict of Interest should have longterm solution, using the opportunity at the same time to improve the existing solutions. Prevention of conflicts of interest in Bosnian-Herzegovinian justice system is not standardized by the special regulation for holders of judicial authority, but partly regulated by process laws, the Law on High Judicial and Prosecutorial Council and partly by ethics codes for judges and prosecutors. Article 8 Codes of conduct for public officials UNCAC ARTICLE Article 8 State level FBIH RS BD Cantonal level Partly Partly Partly Partly Partly Article 8 refers to code of conduct for public officials. More precisely, this article requires from the state party to promote, inter alia, integrity, honesty and responsibility among its public officials, in accordance with fundamental principles of its legal system. Presently, there are codes of conduct for civil servants in BiH (adopted by agencies for public administration), but not employees of public state companies and public state institutions. As it is obvious from the previous text, the notion of ''public official used by the Convention is wider than the notion of ''civil servant from domestic legislation, because besides ''civil servants it also includes those persons performing political functions (members of the parliament, ministers, advisors, judges, ombudspersons, chief auditors, etc.), and employees of state public companies. In that sense, it would take additional effort to adopt unique code of conduct for all ''public officials as defined by the Convention. The issue of ethical codes in Bosnia and Herzegovina is regulated and standardized. Namely, ethical codes are adopted and in force for civil servants at all levels of government 15, and they are used for employees of institutions as well. They regulate prohibition of corruptive actions, prevention of conflicts of interests and disciplinary liability for breaches of the code. Also, at different levels of government in BiH there are ethical codes for members of legislature bodies, as well as codes of judicial and prosecutorial ethics for holders of justice functions. Article 9 Public procurement and management of public finances on Prevention of Conflict of Interest in Governmental Institutions of the Republika Srpska ( RS Official Gazette, No. 73/08), Law on Conflict of Interest in Institutions of Brcko District of Bosnia and Herzegovina (''BiH Brcko District Official Gazette, No. 43/08) 14 15 Code for Civil Servants in Institutions of Bosnia and Herzegovina (''BiH Official Gazette, No. 49/13), Ethical Code for Civil Servants in Federation of Bosnia and Herzegovina (''FbiH Official Gazette, No. 27/14) and other.
BIH FBIH RS BD Article 9 Partly Partly Partly Partly Article 9 of UNCAC regulates issues of public procurement and management of public finances. This article promotes and requires that state parties establish public procurement system based on transparency, competition and objective criteria in decision-making 16. The system of public procurement in BiH is regulated by the unique new Law on Public Procurement 17. Institutions in charge of monitoring application of the new Law on Public Procurement in BiH (PPL) and other bylaws are still the BiH Public Procurement Agency and Procurement Review Body. In May 2015, TI BiH made an analysis of the new law and proposed amendments to it, which are related to the following: Deadline for publishing of public procurement plans. The deadline stipulated by PPL 60 days from the day of budget adoption or financial plan adoption, is unjustifiably long and not adequate for the procedure of budget planning. Prevention of conflicts of interest in public procurement. Stricter sanctions policy. New PPL does not ensure sufficiently high fines that would prevent conscious and deliberate abuse of budget money in public procurement procedure. Related to that, TI BiH recommended, through amendments, significantly stricter policy of fines. Article 10 Public reporting UNCAC ARTICLE BIH FBIH RS BD Article 10 Partly Partly Partly Partly Public administration institutions are, according to article 10 of UNCAC, obliged to take necessary measures to enhance transparency, including enabling insight of the general public into organization, functioning and procedures of decision-making, simplifying procedures of accessing decision-making authorities and publishing of information. Principles of article 10 of UNCAC are based on principles of proactive transparency that represents the practice of public institutions to voluntarily publish information of public significance owned by them. The issue of public reporting in BiH is regulated by existing laws on free access to information that exist at the level of state 18, entity 19 and Brcko District 20. Existing laws on free access to information in BiH enable citizens to realize their right to information exclusively through written requests to institutions and authorities. Proactive publishing of information, although integral part of free access to information, is not covered by the stated legal solutions. Article 11 Measures relating to the judiciary and prosecution services 16In that sense, UNCAC stipulates establishment of such procurement system that shall: ensure the public distribution of information regarding procurement; establish conditions for participation in open competitions; the use of objective and predetermined criteria for public procurement decisions; an effective system of review and appeal; regulate possible conflict of interest of persons involved in public procurement. 17 Law on Public Procurement (''BiH Official Gazette, No. 39/14) 18Law on Free Access to Information in Bosnia and Herzegovina ( BiH Official Gazette, No. 28/00, 45/06, 102/09 and 62/11) 19 Law on Free Access to Information in the Federation of Bosnia and Herzegovina ( FBiH Official Gazette, No. 32/2001, 48/11), Law on Free Access to Information in the Republika Srpska ( RS Official Gazette, No. 20/01) 20 Law on Free Access to Information in Brcko District ("Brcko District Official Gazette", No. 36/04)
UNCAC ARTICL E Article 11 State level FBIH RS BD Cantonal level Fully Fully Fully Fully Fully This article of the Convention emphasizes the principle of independence of the judiciary as the basic principle of judicial government, and the key role of judiciary in the fight against corruption. This article defined the need for establishing measures for strengthening of integrity in the judiciary and preventing corruption in it. Ensuring the high integrity and preventing corruption in BiH is ensured and stipulated mainly by the Law on High Judicial and Prosecutorial Council 21. Article 22 of the Law on High Judicial and Prosecutorial Council states that judges and prosecutors shall be independent and impartial in the exercise of their functions, shall be persons of high moral standing and integrity, and shall have a reputation for efficiency, competence, and integrity. Ethics and personal integrity of judges and prosecutors are regulated by codes of judicial and prosecutorial ethics and other regulations. Still, European Commission in its report for 2015 states that the issue of conflicts of interest in the judiciary causes additional concerns regarding integrity and liability. Article 12 Private sector UNCAC ARTICLE BIH FBIH RS BD Article 12 Partly Partly Partly Partly Article 12 of UNCAC recognizes and recommends the whole set of principles related to prevention of corruption in private sector, enhancing accounting and auditing standards in the private sector and providing adequate penalties for failure to comply with such measures. So far, the private sector was not given special significance in Bosnian-Herzegovinian efforts in preventing corruption at the systemic level. Laws on accounting and auditing in RS and FBiH were adopted in April and December 2009, respectively, and came into force at the beginning of 2010. They additionally harmonized obligations of companies related to accounting and auditing in both entities. Both stock exchanges, Sarajevo (SASE) and Banja Luka (BLSE), disclose financial reports of all parties rated in all segments of the market in their web presentations. Ministries of finance are responsible for supervision of accounting system and ensuring respecting provisions of entities' laws on accounting and auditing. Banking agencies of entities require banks to prepare financial reports based on both IFRS and their prudential regulation, and to subject it to audit. That double request led to the situation of having financial reports of banks not complying with IFRS. Entities' insurance supervisory agencies require monthly, quarterly and annual regulatory reporting and delivering of financial reports. Article 14 Money-laundering UNCAC ARTICLE BIH FBIH RS BD Article 14 Partly Partly Partly Partly
This article was partly elaborated within the assessment of the harmonization of article 23, in the part related to criminalization, so the analysis of measures taken against money-laundering by BiH must be considered related to that part. In this part the emphasis is on measures preventing the money-laundering and regulating banks and other financial institutions that provide official or unofficial services for transfer of money or valuables. Law on Prevention of Money-Laundering and Financing of Terrorist Activities elaborate in detail measures, actions and procedures, monitoring, tasks and authorizations of Financial Intelligence Department of the State Investigation and Protection Agency, inter-institutional cooperation of relevant authorities, international cooperation in the area of prevention of money-laundering and other segments related to prevention and detection of money-laundering. Apart from that, this law covers all those institutions that are vulnerable related to money-laundering, as well as penalties for failure to implement those measures. Rulebook on Implementation of the Law on Prevention of Money-Laundering and Financing of Terrorist Activities (''BiH Official Gazette, No. 41/15) stipulates in detail the criteria for development guidelines for assessment of risk, information, data and documents necessary for identification of clients and transactions, information, data and documents that will be delivered to Financial Intelligence Department (hereinafter: FID) of the State Investigation and Protection Agency, and defines indicators of suspicious transactions, as well as define in detail the related transaction. In general, it may be concluded that in this sense, BiH has created the legal framework enabling recognition of suspicious transactions and stipulated measures for sanctioning organizations that do not implement measures that may be considered as discouraging. CHAPTER III CRIMINALIZATION AND LAW ENFORCEMENT Article 15 - Bribery / Article 16 Bribery of foreign public officials and officials of publlic international organizations Article 15 Fully Fully Fully Fully Article 16 Fully Partly Fully Partly Article 15 of the Convention covers bribery of national public officials and defines bribing and accepting the bribe. codes in force in BiH cover offences related to bribing national public officials and bribing foreign public officials and officials of public international organizations. Such are especially articles of BiH CC 22, like article 217 (accepting gifts and other forms of benefits) and 218 (giving gifts and other forms of benefits), because besides the official and responsible person in institutions of BiH, they address the foreign official (from article 16 of the Convention), and foreign official is defined by criminal code as representative of a foreign state, or representative of international organization (article 1, point 7 of BiH CC). In FBiH CC 23, these are articles 380 (accepting gifts and other forms of benefits) and 381 (giving gifts and other forms of benefits); in RS CC 24 -- articles 351 (accepting bribe) and 352 (giving bribe); in BD CC 25, articles 374 (accepting gifts and other forms of benefits) and 375 (giving gifts nad other forms of benefits). 22 BiH Code (''BiH Official Gazette, No. 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07, 8/10, 47/14, 22/15, 40/15) 23 Code of BiH Federation ( BiH Official Gazette, No. 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07, 8/10, 47/14, 22/15 and 40/15) 24 Code of the Republika Srpska (''RS Official Gazette, No. 49/03, 108/04, 37/06, 70/06, 73/10, 1/12 and 67/13) 25 Code of Brcko District integral text ( BiH BD Official Gazette, No. 33/13)
Regarding criminal offence of bribing, criminal codes in BiH recognize the true active bribing, untrue active bribing and retrospective active bribing (articles 218 of BIH CC, 381 of FBIH CC, 352 of RS CC and 374 of BD CC). These criminal offences also include mediation in bribery. But, in relation to the third person who might be the subject of the active bribery, only BiH CC defines that the offence of giving the bribe relates to the active bribing in favor of the third person. In article 16, item 1 of the Convention, which refers to bribing of foreign public officials and officials of public international organizations, it is required that the state party establishes as a criminal offence the act of active bribing, while for the passive bribing it requires the state party to consider the introducing of such criminal offence. Since domestic legislature recognizes the criminal offence of passive bribing of foreign and international public officials, it may be said that it is in compliance with articles 15 and 16 of the Convention. Definition of public official is given very widely, and it refers to all persons who perform public functions or provide public services in any way. Article 18 Trading in influence Article 18 Partly Partly Fully Partly Article 18 of the Convention defines the trading (or abuse) in influence (in active and passive form), and this criminal offence has its counterpart in article 219 of BiH CC ''Illegal interceding. In certain way the criminal offence of trading in influence represents a variant of the criminal offence of bribing national public officials from article 15 of the Convention, but there are also significant differences between those two articles. Namely, article 15 of the Convention refers to acting or refraining from acting by the public official in the exercise of his official duties. On the other hand, article 18 of the Convention refers to the use of real or supposed influence with the aim of obtaining undue benefit for the third person, and through acting of some administrative authority or public institution. Chapter XIX of BiH CC -- criminal offences of corruption and criminal offences against official duty or other responsible duty contains articles 219 (accepting gift or any other benefit for trading in influence) and 219 a (giving a gift or any other benefit for trading in influence), which address the contents of article 18 of the Convention. Chapter XXXI of FBiH CC criminal offences of bribing and criminal offences against official and other responsible function are contained in article 382 (illegal interceding). Chapter XXVII of RS CC criminal offences against official duty are contained in article 353 (trading in influence), which refers to article 18 of the Convention. Chapter XXXI of BD CC criminal offences of bribing and criminal offences against official and other responsible function are contained in article 376 (illegal interceding). Article 19. Abuse of functions Article 19 Fully Fully Fully Fully
All four criminal codes contain a series of provisions regulating the issue of abuse of functions related to article 19 of the Convention. In BIH CC these are Abuse of Office or Official Authority (article 220), Embezzlement in Office (article 221), Fraud in Office (article 222), Using Property of the Office (article 223) and Malfeasance in Office (article 224). In FBIH CC these are Abuse of Office or Authority (article 383), Embezzlement in Office (article 384), Fraud in Office (article 385), Using Property of the Office (article 386), Malfeasance in Office (article 387) and Disclosure of Official Secrets (article 388). In RS CC these are Abuse of Functions or Authority (article 347), Embezzlement (article 348), Fraud in Office (article 349), Using Property of the Office (article 340), Malfeasance in Office (article 354) and Disclosing Official Secret (article 355). In BD CC these are Abuse of Office or Authority (article 377), Embezzlement (article 378), Fraud in Office (article 379), Using Property of the Office (article 380), Malfeasance in Office (article 381) and Disclosure of Official Secret (article 382). All those offences contain elements covered by article 19, although not entirely. It is obvious that the goal of those criminal offences is preventing abuse of functions, and they contain elements stipulated by the Convention. Očigledno je da cilj ovih krivičnih djela jeste sprečavanje zloupotrebe položaja i u njima se mogu naći elementi predviđeni Konvencijom. For example, the element ''obtaining undue benefit for oneself is contained in all the mentioned offences except malfeasance in office and disclosure of official secret. Article 20 Illicit enrichment Article 20 Not implemented Not implemented Not implemented Not implemented Article 20 of the Convention refers to illicit enrichment. In international law related to the fight against corruption, and at national levels of some states, there is the tendency of criminalizing the behavior that consists of owning property/wealth, the increase of which cannot be explained rationally, having in mind regular income of the owner. Bosnia and Herzegovina has not defined significant increase in property of the public official that he cannot reasonably explain by his legal income as a separate criminal offence. Article 21 Bribery in the private sector Article 23 Not applicable Fully Partly Fully Article 21 of the Convention refers to bribery in the private sector. As with the criminal offence of bribing in the public sector, the Convention recognizes both active and passive bribing, so the essence of this criminal offence does not differ from the criminal offence of bribery in the public sector, with the only difference in the object being the private property. Bribe in the private sector is covered by the same articles that cover bribing of public officials. offences are determined by FBIH CC and BD CC in the part related to giving and receiving gift or other
benefit, and determining that the offence may be committed by official or responsible person. In the definition of the responsible person (article 2, item (6) of FBIH CC and article 2, item (5) of BD CC), it is emphasized that the responsible person means ''person in the business entity or other legal person who is tasked with certain scope of tasks based on his duties or special authorizations. So, as with the analysis of article 15 of the Convention, it may be concluded that FBIH CC and BD CC are in compliance with the Convention. RS CC contains special articles that regulate the issue of active bribing -- unlawful accepting of gifts or presents, article 267, and for the passive type of committing, unlawful giving of gifts and presents, article 268. Nevertheless, these articles only partly cover the article 21 of the Convention, because neither they regulate the issue of interceding nor the possibility of benefit being given or promised to the third person. Besides, article 267 introduces the existence of the damage for the legal person under whose authorization the person committing the offence acts, which is not in accordance with the Convention. Article 23 Laundering of proceeds of crime Article 23 Fully Fully Fully Fully All four criminal codes contain provisions regulating the issue of laundering of proceeds of crime related to article 23 of the Convention, BiH CC in article 209 (money laundering), FBiH CC in article 272 (money laundering), RS CC in article 280 (money laundering) and BD CC in article 265 (money laundering). It equally refers to the point of item a), paragraph 1 of the Convention, because all four laws contain the conversion or transfer of property, concealing or disguising, as well as the point of item b) of the same paragraph related to acquisition, possession or use of property and participation in, association with and conspiracy to commit the offence. These articles also contain the point of item b), paragraph 2, for they are not limited to laundering of money acquired only by offences included in UN CAC, but they include all criminal offences. With analogue application of articles related to association and aiding in committing criminal offences, criminal codes fully ensure implementation of UNCAC in the context of criminalization. On the other hand, BIH CC and RS CC fulfill also the stipulated possibility from point e), item 2), so according to it the perpetrator of the criminal offence of unlawful acquisition of money (predicate offence) may be punished for the criminal offence of money laundering. Although this obligation is left for each state party to provide, i.e. to ''fundamental principles of its domestic law, such solution leads to legal uncertainty in BiH, since similar provision is not given by criminal codes of FBIH and BD. Article 25. Obstruction of justice Article 25 Fully Fully Fully Fully Article 25 of the Convention refers to obstruction of justice as a separate criminal offence. As stipulated by the Convention, it might be said that this criminal offence has two forms. The first form exists if the obstruction of justice was performed in such a way that by use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage it induced false testimony or interfered in the giving of testimony or the production of evidence in a proceeding.
All four criminal codes contain a series of provisions regulating criminalization of obstruction of justice, as given by article 25 of the Convention. These are the following articles of BiH CC: article 236 (Tampering with Evidence), article 241 (Obstruction of Justice), article 241a (Preventing Official in Performing Official Task), 241b (Attack on the Official Performing Security Tasks, Disclosing or Arresting the Perpetrator of Offence); articles of FBiH CC: article 349 (Tampering with Evidence), article 358 (Preventing Official in Performing Official Task), article 359 (Attack on the Official Performing Security Tasks) and article 360 (Participating in a Group that Prevents the Official from Performing Official Tasks); articles of RS CC: article 369 (Obstruction of Justice), article 387 (Preventing the Official from Performing his Official Duty) and article 388 (Attack on the Official while Performing his Official Duty); articles of BD CC: 343 (Tampering with Evidence), 352 (Preventing Official in Performing Official Task) and article 353 (Attack on the Official Performing Security Tasks). These acts, representing criminal offences according to items a) and b) of article 25 of the Convention, also equally criminalize inducing false testimony and interfering with official duties in law enforcement. For that reason, it may be considered that all four criminal codes are fully compliant with article 24 of the Convention. Article 30 - Prosecution, adjudication and sanctions Article 30 Fully Fully Fully Fully legislation determines rules on criminal liability of physical and legal persons who committed criminal offence. Laws regulate that criminal offence is an unlawful act established as such by the law, with its characteristics established by the law, and for which the law established criminal-legal sanctions. On the other hand, BiH legal system guarantees immunity to some persons. For that purpose special laws on immunity were brought in BiH (BIH, FBIH, RS and BD), regulating which persons have right to immunity against charges in criminal and civil proceedings. These persons are holders of legislative functions, members of executive government, presidents and vice presidents, where they exist. The Law on High Judicial and Prosecutorial Council regulates the issue of immunity of Council members and holders of judicial functions. The basic principle limiting immunity against criminal charges is that those persons shall not be held responsible for acts committed while performing their duties. Article 31 Freezing, seizure and confiscation Article 31 Fully Fully Fully Fully In legal system of Bosnia and Herzegovina, notions of freezing, seizure and confiscation are included in the principle that ''nobody may keep the material gain obtained by the criminal offence, and within the legal instruments of temporary and permanent confiscation of the proceeds of crime. Laws on criminal proceedings determine that the prosecutor has the right and obligation to determine facts necessary for deciding on confiscation of material gain obtained by criminal offence. These articles stipulate that the material gain obtained by criminal offence is being determined within criminal proceedings ex
officio, also emphasizing the responsibility of the prosecutor to collect evidence and investigate circumstances relevant for determination of material gain obtained by criminal offence. After ratification, Bosnia and Herzegovina took additional steps to improve the legal framework in accordance with standards of the Convention regarding the freezing, seizure and confiscation of property. For that purpose, criminal codes have been amended and special laws on confiscation of property brought, at the level of entities: in 2010 the Law on Confiscation of Property Gained by Committing of Offence in the Republika Srpska 26, in 2014 the Law on Confiscation of the Unlawfully Gained Proceeds of Crime in BiH Federation 27, and recently adopted Law on Confiscation of Unlawfully Gained Property in Brcko District 28. These laws represent additional efforts to regulate matters regarding freezing, seizure and confiscation of the proceeds of crime. These laws are harmonized with provisions of criminal legislation, and in certain areas they regulate practical steps during the procedure of confiscation and handling of the confiscated property. Scope of new law application should be kept in mind here, for these laws are applied in procedures of confiscation of material gain obtained by criminal offences that are defined by criminal codes and for which the imprisonment of three years or more serious penalty may be imposed in FBiH, or when material gain exceeds 50,000 BAM in RS, and for all other criminal offences provisions of criminal legislation are applied. Similar law has still not been brought at the level of BiH, and it represents the additional challenge that Bosnia and Herzegovina shall have to overcome in order to have its legal system in compliance with obligations from the Convention. These laws elaborate two procedures of confiscation of unlawfully obtained property: the procedure of permanent confiscation and the procedure of temporary confiscation of property. Material gain obtained by criminal offence is determined by the court decision. Article 32 Protection of witnesses, experts and victims Article 32 Fully Partly Partly Partly Article 32 of the Convention requires the state party to take appropriate measures to provide effective protection from potential retaliation and intimidation of witness and experts who give testimony concerning offences established in accordance with the Convention and, as appropriate, for their relatives and other persons close to them (refers to relatives and persons close to witnesses and experts). Laws on criminal proceedings determine principles of witness protection. These laws imply application of special laws by their blanket provisions. Those special laws are BiH Law on Protection of Witnesses under Threat and Vulnerable Witnesses, the Law on Witness Protection Program in Bosnia and Herzegovina, FBiH Law on Protection of Witnesses under Threat and Vulnerable Witnesses, RS Law on Witness Protection in and BD Law on Protection of Witnesses under Threat and Vulnerable Witnesses. These laws define witness under threat as the witness whose personal safety or the safety of his family is endangered due to his participation in the proceedings, as the result of threats, intimidation or similar actions related to his testimony, or the witness who believes there is reasonable grounds for fear that such a danger might probably result from his testimony. These laws mainly implement provisions of the 26 Law on Confiscation of Property Gained by Committing of Offence of the Republika Srpska, ''RS Official Gazette, No. 12/10 27 Law on Confiscation of the Unlawfully Gained Proceeds of Crime, ''FBiH Official Gazette, No. 71/14 28 Law on Confiscation of Unlawfully Gained Property (''Brcko District Official Gazette, No. 29/16)
Convention. There are defined procedures for physical protection of persons testifying and also testifying using technical devices for sound and picture transmission. A series of agreements with other state parties on relocation of protected witnesses was signed. Nevertheless, there are still no developed capacities within judicial institutions that would ensure all measures stipulated by these laws. Article 33 Protection of reporting persons BIH FBIH RS BD Article 33 Fully Not implemented Not implemented Not implemented Article 33 of the Convention contains rules on protection of reporting persons (whistleblowers), and related to offences defined by the Convention. The Convention requires state parties to adopt regulations in order to prevent unjustified treatment of persons who report ''in good faith and on reasonable grounds on alleged perpetrators for criminal offences established by the Convention. Law on Protection of Persons Reporting Corruption in BiH Institutions enables protection of whistleblower for reporting corruption in public administration, i.e. in the public sector at the level of Bosnia and Herzegovina. This Law gave the concrete authority to the Agency for Prevention of Corruption and Coordination of the Fight Against Corruption to award the status of the ''whistleblower to the person reporting on corruption. By this the Law enabled not only the court protection of persons reporting on corruption in BiH institutions, but also the pre-court protection. At the level of entities and Brcko District, there are no adequate laws ensuring protection of persons reporting corruption. It may be concluded that provisions of this article of UNCAC were implemented at the state level, but not at lower levels. Article 36 Specialized authorities BIH FBIH RS BD Article 36 -- -- -- -- The fight against corruption is above all realized through BiH criminal judiciary. The system of criminal judiciary includes relevant courts and prosecutor offices, but also agencies for law enforcement that are considered to be very important factor in dealing with cases of corruption. According to the constitutional structure of BiH, there are four judicial systems: judicial system of BiH, judicial systems of entities (BiH Federation and Republika Srpska) and judicial system of Brcko District. Courts in BiH competent for processing crimes of corruption are the following: Court of BiH (state level), Supreme Court of FBiH, RS Supreme Court, 10 cantonal courts, 5 district courts, 23 municipal courts, 16 courts of general jurisdiction and one court of general jurisdiction of Brcko Disttrict. Available analyses indicate the fact that crimes of corruption are most often processed by municipal courts or courts of general jurisdiction (as first instance entity courts), while the small number of corruption cases is processed by the Court of BiH, cantonal and district courts, as well as the court of general jurisdiction of Brcko District. Prosecutorial system in BiH is harmonized with judicial system and it consists of the following: Prosecutor's Office of BiH (prosecutor's office at the state level), 2 entity prosecutor's offices, 10 cantonal prosecutor's offices in FBiH, 5 district prosecutor's offices in RS (there is a Separate Prosecutor's Office for Suppression of Organized Crime and the Most Serious Forms of Economic Crimes Special Prosecutor's Office within the district prosecutor's office) and 1 prosecutor's office of Brcko District. Prosecutor's offices that process corruption cases have separate departments within their structure that work on prevention of such a negative social phenomenon. For example, within Prosecutor's Office of BiH there is special department
for organized crime, economic crime and corruption; the Prosecutor's Office of Zenica-Doboj Canton contains two departments, the first one dealing with war crimes and economic crimes, and containing the section for corruption and economic crimes. Such organizational units are responsible for processing corruption cases. Very important part in processing criminal offences of corruption is the police, since they are the first to discover information on corruption offence. Police system is organized in a complex way, with four separate systems based on uncoordinated bases, and significantly differing from each other in organization. There is no police force based on the principle of the ministry of the interior at the level of BiH. Nevertheless, within the Ministry of Security there are administrative organizations that have operational autonomy and they perform police tasks among other tasks, most often discovering and investigating criminal offences. State Investigation and Protection Agency is organization competent for prevention, discovering and investigating criminal offences of corruption from the competence of BiH Court. adekvatnost obučenosti osoblja kao i to da li su sredstava koja su im dostupna za rad odgovarajuća. ASSESSMENT OF IMPLEMENTATION OF CHAPTER III Data on the degree of Chapter III implementation are not published regularly. Transparency International in Bosnia and Herzegovina regularly performs monitoring of processing corruption cases before courts and prosecutor's offices in BiH, in order to assess the implementation status. In accordance with the Analysis of the Practice of Discovering, Processing and Sanctioning of Offences of Corruption in BiH 2009-2014, which was created on the basis of data collected from BiH High Judicial and Prosecutorial Council, TI's assessment is that statistical data on prosecuting cases of corruption are still unsatisfactory. Based on the key findings of this analysis, the assessment of TI BiH is that it is worrisome that the number of acquittals in such cases is much higher than in cases of general crimes, where there is only 5% acquittals compared to even 28% in cases of corruption. CHAPTER IV INTERNATIONAL COOPERATION Article 43 International cooperation BIH Law on FBIH Law on RS Law on BD Law on Article 43 Not applicable Not applicable Not applicable Not applicable Article 43 of the Convention refers to international cooperation related to the Convention implementation. State parties are required to cooperate in matters related to extradition, transfer of sentenced persons, mutual legal assistance, transfer of criminal proceedings, cooperation in law enforcement including joint investigations and special investigation techniques. Besides, the Convention requires state parties to cooperate not only in criminal-legal area, but also in civil and administrative matters related to corruption. The Convention especially treats the issue of so-called dual criminality. Bosnia and Herzegovina regulated the issue of international cooperation in criminal matters by bringing the Law on International Legal Assistance in Matters ("BiH Official Gazette", No. 53/09 and 58/13). According to this law, international legal assistance in criminal matters refers to all actions of the foreign state relevant authority that are taken upon request of the local relevant authority and vice versa, extradition procedures, transfer of sentenced persons, transfer of criminal proceedings from one state to another, as well as other activities regulated by the separate international conventions and agreements.
Article 44 - Extradition UNCAC ČLAN BIH Law on FBIH Law on RS Law on Article 44 Partly Partly Partly Partly BD Law on Article 44 of the Convention refers to extradition. Extradition is formal and the most used procedure, based on international treaties -- multilateral or bilateral, with the aim of returning or delivering the fugitive to jurisdiction that is seeking him. The Law on International Legal Assistance in Matters regulates extradition of accused or convicted foreign citizens from Bosnia and Herzegovina into another state. This law also regulates active and passive extradition, as well as the simplified procedure. The basic principle for extradition approval in accordance with article 33 is to allow extradition only for criminal offences punishable by both BiH laws and laws of the state requesting extradition. It is the dual principle that enables extradition only if the criminal offence is punishable in both BiH and the state requesting extradition. In that sense, legal system cannot be considered compliant with the Convention, for the analysis of the Chapter III indicates criminal offences that are not criminalized in BiH legal system, like especially article 20, but also segments of some offences that are not fully harmonized. Regarding item (2) of article 44 of the Convention, extradition shall not be possible for offences that are not established as criminal offences in the legal system of BiH. It is not clear whether there is bilateral treaty with any state that would stipulate the possibility of extradition for offences from UNCAC that are not established as criminal offences in BiH legal system. Article 49 Joint investigations BIH Law on FBIH Law on RS Law on Article 49 Partly Partly Partly Partly BD Law on Article 49 of the Convention refers to joint investigations. The Convention does not require state parties to perform joint investigations, but only encourages them to do so, and suggests to state parties establishment of joint investigation bodies, on a case-by-case basis. Bosnia and Herzegovina concluded a series of bilateral treaties in this area, but it is not possible to assess if this cooperation is effective or not for such data are not available. On the other hand, special article of the Law on International Legal Assistance in Matters defines that issues of international investigation teams are regulated by the agreement of the relevant prosecutor's office in Bosnia and Herzegovina with the relevant judicial authority of the other state, when circumstances of the given case justify that. These joint investigation teams are established for the purpose of carrying out certain investigation on the territory of one or more state parties that establish the joint investigation team for the fixed period. Besides, also regulated is the issue of surveillance that police authorities of other state may perform in the territory of Bosnia and Herzegovina or may entrust local police agencies with that task, which is related to surveillance of the person suspected to have participated in committing criminal offence that is the subject of extradition, or the person who is believed to lead to identification and locating of the mentioned person.