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Kosovo*

Kosovo*
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All references to Kosovo, whether the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.

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Public ethics and accountability

Public ethics and accountability are essential concepts underpinning an effective local or regional authority. They refer to the culture, processes, structures and rules that ensure those in public office act in the wider public interest, rather than their own self-interest. They are an essential feature of good governance, and it is important that they are respected and monitored by relevant organisations.

Ethics embody the rules that define the conduct of public officials[1] in order to ensure that the public is treated fairly and equitably. Ethics help officials make better decisions in the public interest and help people evaluate the decisions taken on their behalf by public officials.

Public accountability ensures that officials are openly answerable for the decisions they are taking on behalf of the public.

In the absence of public ethics and accountability, corruption and malpractice are able to thrive. As outlined in the final chapter, corruption is damaging to individuals, society, the economy and government in a number of respects. The prioritisation of public ethics and accountability can help curb the worst excesses of power and encourage more responsible and fairer decision-making by local authorities.

Even where corruption is not endemic, the absence of public ethics and accountability can be corrosive to public trust in government, public institutions and officials. While the relationship between public ethics and accountability is complex, consistent and timely application of both can help to build and strengthen trust between the public and government.

Furthermore, public ethics and accountability can contribute to a positive environment where it is recognised that citizens and other stakeholders contribute to the quality of the decision-making process. Combined with citizen participation tools, public ethics and accountability can help to ensure that citizens’ personal experiences, expertise, knowledge and scrutiny add value to, and strengthen, decisions taken by government and public officials.

Elected representatives should be aware of the process by which declarations of assets are monitored and by which body, and which sanctions can be applied, and how, in the event that an office-holder makes a false or incomplete declaration. They should know the rules governing whistle-blowing and which official or officials are responsible for considering whistle-blowers’ complaints and reports of wrongdoing. Local authorities need to ensure in-house training for newly elected representatives and provide regular refresher training for all elected officials. Knowledge and understanding of the legal and institutional framework are essential if elected representatives are to succeed as role models of political integrity.

Finally, public ethics and accountability are key to improving public services because public services that are more responsive and accountable to people – and benefit from their insights, ideas, energy, and scrutiny – will work better for people and the community as a whole.

Taken together, public ethics and accountability help to ensure that decision-making and resource allocation are fair, efficient and effective, which in turn helps to enable a flourishing democracy, economy and society. To this end, the Congress of Local and Regional Authorities of the Council of Europe adopted the European Code of Conduct for all Persons Involved in Local and Regional Governance, encouraging local and regional authorities and associations of local and regional authorities to design appropriate educational programmes in integrity management and to implement advisory services to help their staff to identify and deal with potential ethical risk areas and conflict-of-interest situations.

Transparency and citizen participation are important mechanisms for promoting public ethics and accountability in central and local government. A recent report for the European Committee of the Regions on “Preventing Corruption and Promoting Public Ethics at the Local and Regional Level in Eastern Partnership Countries” found that lack of transparency was the main vulnerability in all of the cases assessed. This handbook outlines a range of transparency and citizen participation mechanisms that can be adopted by local and regional authorities.

 


[1] For the purpose of this publication, the term “public officials” refers to elected representatives, public authorities and civil servants (either at local, regional or central government level) who hold a legislative, administrative or judicial office, and to any person exercising a public function, including for a public agency or a state-owned enterprise.

 



General Domestic Context

Kosovo* is still in the process of building stable and transparent governing structures and institutions. However, insufficient level ethics when conducting their duties remain one of the main challenges toward building an administration compliant with the principles of public ethics (ie. integrity, legality, objectivity, accountability, transparency, honesty, respect and leadership). According to the Council of Europe “public ethics is at the heart of democracy and good governance, at all level of government” and integrity is one of its main principles and a cornerstone of good governance. Yet, no institution is immune to violations of code of ethics, therefore, unethical interactions between public and private actors are possible at all stages of the policy process. Addressing this challenge requires a whole-of-society and whole-of-government approach.

In recent years in Kosovo*, the lack of professional ethics is more evident in public administration, public procurement procedures and the financing of political parties. In 2019, Kosovo* issued the Law on the Organisation and Functioning of State Administration and Independent Agencies. This law provides space for creating a more efficient administration respecting the principles of transparency. In addition to the principle of transparency, this law obliges the public administration to act with professionalism and political neutrality in decision-making. Local government is regulated with the Law on Local Self-Government. Over the year of 2019, there have been improvements in the performance of local authorities. Municipalities of Kosovo* showed readiness to increase transparency in their governance. Due to this readiness, transparency increased 12% compared to 2018.

Lack of transparency during public procurement procedures remains an issue. These procedures remain prone to irregularities and vulnerable to corruption. During 2019, there were six new cases related to corruption in public procurement reported by the Anti-Corruption Agency.

However, Kosovo* has a number of laws that seek to increase transparency and public accountabilty. Those laws include: Law on Access to Public Documents, Law on Declaration, Origin and Control of Property of Senior Public Officials and on Declaration, Origin and Control of Gifts of All Public Officials, and Law on Public Procurement. Article 5 of the Law on Prevention of Conflict of Interest in Discharge of Public Function obliges public officials to exercise its function in accordance with the relevant law and code of conduct. Paragraph 1 of this article sets out the principles of ethical conduct for public officials. It states that  public officials must perform their functions with honesty, conscience, impartiality, maintain the authority of the official and the institution and strengthen the trust of the citizens in the institution.

Codes of ethics and professional conduct

Codes of ethics establish basic principles by which public servants must abide, such as integrity, selflessness and openness. A code of conduct draws on the code of ethics to formulate standards and practices that should be applied to the particular circumstances of an institution.

A code of conduct sets out specific standards of professional behaviour expected in a host of situations and provides public officials with guidance for handling them. In addition, codes of conduct bring transparency and public accountability into governmental operations.

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:


Domestic context

Currently, Kosovo* does not have one general code of ethics and conduct that would regulate the behaviour of public officials. Nevertheless, there is a legal framework composed of the Law on Civil Service and the Regulation on Civil Servant Code of Conduct whose purpose is to regulate those behaviours. Given the importance of these codes, each institution and public body in Kosovo* has issued its code of ethics and conduct. Adherence to these codes is very important for citizens to receive public services in the best possible way, and to increase the transparency and accountability of the public administration in Kosovo*. In addition, these codes inherently increase the professionalism of the public administration and build citizens’ trust in the work of the public administration. Furthermore, the legal framework in Kosovo* provides that the Anti-Corruption Agency participates and offers advice on drafting codes of ethics in the public and private sectors.


Legislation

Chapter 7 of the Law on Civil Service of Kosovo* provides for the Principles and Conditions of Professional Conduct of Civil Servants. However, considering the importance of professional conduct and ethics in the public administration, Kosovo* has issued the Regulation on Civil Servant Code of Conduct. This regulation aims to determine the rules of conduct of all civil servants in Kosovo* and to raise public awareness of the conduct that civil servants should have while exercising their duties. This regulation sets out the fundamental principles that should be respected by civil servants when providing public services. Namely, they must adhere to the principles of legality, non-discrimination, obligation to respond to requests, effectiveness and efficiency, responsibility, impartiality and professional independence, transparency, avoiding conflict of interest, and equal opportunities for communities and genders. Violations of the rules and principles set out in this Regulation would lead to disciplinary measures against the public official in accordance with the legislation in force.


Guidelines

Besides the Law on Civil Service and the Regulation on Civil Servant Code of Conduct, public bodies and institutions in Kosovo* have issued their own codes or regulations of conduct and ethics. For instance, the Assembly of Kosovo* has issued the Code of Conduct of the Members of the Assembly. The Kosovo* Judicial Council has also enacted the Code of Professional Ethics for Judges, which aims to regulate the rules and conduct of judges in Kosovo*. The Constitutional Court has also enacted the Code of Conduct for Judges with principles to guide and regulate their conduct. The Prosecutorial Council has issued the Code of Ethics and Professional Conduct for Prosecutors. At the local level of government, each municipality has issued a code of ethics that regulates the behaviour and conduct of its officials. Despite a solid legal framework that regulates the conduct of civil servants the data on their actual implementation and the institutional mechanisms that ensure their implementation are missing.

Based on the Law on Disciplinary Responsibility of Judges and Prosecutors, when a judge or prosecutor does not act in compliance with the Code of Conduct, that action is considered a violation of the duties of judges. In those situations, the judge commits a disciplinary offense. Disciplinary proceedings are conducted before the Kosovo* Judicial Council or Kosovo Prosecutorial Council.


Good practices

In 2020, the Municipality of Ferizaj has enacted its own Code of Ethics that aims to regulate the behaviour of municipal officials in order to reflect the professional and moral ethics of the municipality. The purpose of this Code is to develop the organisational culture within the municipality and to promote the basic principles of ethics. According to this code, the municipal officials are obliged to exercise their duties in accordance with the laws that are in force and they are always required to act on the basis of public interests and not private or party interests. This Code also regulates the dress and appearance code of municipal officials by determining what the proper ways of dressing during working hours are. According to this Code, any public official who violates the provisions set out in this code, will face disciplinary measures in accordance with applicable law. In order to ensure the implementation of this code, the municipal assembly of Ferizaj establishes the Commission of Code of Ethics. Measures for violating the provisions of the code of ethics include public reprimand and a penalty of up to 15% of the payment for up to three months.

Complaints mechanisms

Complaints mechanisms allow citizens to provide feedback to public authorities on the standards of services they receive. They provide an important accountability mechanism which allows civil servants and elected officials to identify where public services are being delivered ineffectively, inefficiently or inequitably. When such mechanisms result in the prompt and effective handling of complaints , they can help to create the conditions for increased trust of citizens in government administration.

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:


Domestic context

In Kosovo*, the right to appeal and to use legal remedies is a constitutional right that is regulated by the Constitution of Kosovo*. The use of legal remedies is regulated under the Law on General Administrative Procedure, which allows citizens of Kosovo* to “question” administrative acts that they think violate their rights and legal interests. However, citizens face a challenge in exercising their rights and using these mechanisms in practice due to prolonged court proceedings.

The Constitution of Kosovo* establishes the Ombudsperson as an independent institution. Its role is to monitor, defend and protect the rights and freedoms of individuals from unlawful or irregular actions act of public authorities. Competences and responsibilities of the Ombudsperson are regulated by the Law on the Ombudsperson. The importance of the Ombudsperson remains very high due to the fact that many citizens turn to this independent institution for the protection of their rights and legal interests when other means prove unsuccessful.

Another important mechanism available for citizens to complain and address their issues is the Committee on Human Rights, Gender Equality, Missing Persons and Petitions within the Assembly of Kosovo*. The scope of this committee includes co-operation with the Ombudsperson and reviewing the petitions that are addressed to the Assembly. This way, every petition is initially reviewed and analysed by this Committee. Not later than two weeks after the date of reception of the petition, the chairperson of the committee submits it to the committee, proposing at the same time the manner of legal settlement or rejection of the said petition. If the committee deems it appropriate, resolving the matter may authorize the chairperson of the committee to submit a statement at the plenary session of the Assembly.


Legislation

In Kosovo*, the use of complaint mechanisms is regulated by the Law on General Administrative Procedure. This Law aims to protect the rights and legal interests of people when public authorities provide services of public interest. It is applicable every time a public body, while exercising its public authority, issues a decision on rights, obligations or legitimate interest of a person, concludes an administrative contract or exercises their competencies through other administrative actions.

This law provides for these forms of legal remedies: administrative appeal, administrative objection and reopening of proceedings. In its Chapter 2, this law regulates the entire procedure of administrative complaints. It sets out the general rules for filing an appeal against administrative acts and the conditions that a complaint must meet in order to be permissible. Chapter 3 regulates administrative objection, which must be filed against a real act or against the non-performance of a real act requested by the party. Finally, Chapter 4 refers to the reopening of a proceeding, under certain cases, if the party has not lodged a complaint within the deadline defined within the law.


Guidelines

As of the beginning of 2021, there is no national or local guidelines on complaints mechanisms. A possible reason for the lack of such guidelines is because the Law on General Administrative Procedure regulates in detail the procedure for lodging and managing complaints.


Good practices

Kosovo Democratic Institute / Transparency International Kosovo*, from June to September 2020, submitted six requests for access to public documents and information from the University Hospital and Clinical Service of Kosovo*. These requests were confirmed, on the phone, to have been received. Under the Law on Access to Public Documents, public institutions are obliged to issue a decision on the approval or rejection of the request within seven days, while the non-response of the public institution within this deadline is considered a negative response. In this case, they did not meet the legal deadline and KDI/TI lodged a complaint to the Ombudsperson, asking to decide on the admissibility of KDI/TI’s access to public documents as per the request. The Ombudsman responded positively.

Grievance Redress Mechanisms

Grievance redress mechanisms (GRMs) are tools that go beyond complaints mechanisms and other feedback channels as citizens can use a GRM to address government institutions and local municipalities with concerns about the impact of policies and their implementation on the citizens themselves. When the policy of a public agency affects the interests of the citizens, or the decision made by the central or local governmental bodies causes a grievance on the part of the citizens, interested parties can use the redress system created by the government agencies and local municipal bodies to present their grievance. A grievance redress mechanism is not used to replace the court or audit system or formal investigation; nor is it the appropriate mechanism for grievance about potentially criminal acts, such as instances of corruption. GRMs are designed for collaborative solutions of grievances.

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

Redress mechanisms are one of the tools used to ensure accountability from public bodies toward its citizens. Also referred to as “grievance redress mechanisms, are sought in those situations when a public body enacts an act that adversely affects the rights of citizens in any form. Kosovo* does not have a current law that regulates redress mechanisms or their procedure. However, cases in which an administrative act of a public body causes direct or indirect harm to a person are foreseen in the Law on Administrative Conflicts. This law regulates competencies, composition of the court and rules of procedure when deciding on the lawfulness of administrative acts. As per Article 18, the plaintiff in an administrative conflict may be a natural person, legal entity, Ombudsperson, and other associations and organisations which protect public interest. In all these cases, injured parties can submit a complaint to the competent court, and may also request an extraordinary review of the legal decision to the Supreme Court of Kosovo*.

As of 2021, in Kosovo* there is not an administrative court that would specifically address administrative conflicts. However, within the Basic Court of Pristina, the Department for Administrative Matters is competent to deal with administrative conflicts from all over Kosovo* This department adjudicates and decides in the first instance on administrative conflicts based on lawsuits filed against final administrative acts and other issues defined by the Law on Administrative Conflicts. Due to the fact that there is only one Department for the whole territory of Kosovo*, it makes it hard for citizens to address their issues. The access to this Department is not easy and traveling from different parts of Kosovo* to submit a complaint is not always rational and feasible for many citizens. This has led to a number of citizens not addressing their issues and not getting compensation for their damage.


Legislation

Compensation for damages is regulated by the Law on Administrative Conflicts. The law regulates the administrative conflict before the court in cases when a party files a suit against an administrative act. This law states that the administrative conflict begins with an indictment or lawsuit. This law gives injured parties the right to ask for compensation of the damages that were caused from the execution of the administrative act. Besides the compensation of damages, the plaintiff has the right to request restitution.


Guidelines

Although there are currently no guidelines that regulate the redress mechanisms in Kosovo*, its institution may start utilizing the best international practices. According to Transparency International Complaint Mechanisms - Reference Guide for Good Practice effective complaint mechanisms are a key tool to identify and prevent corruption and other malpractice. The sooner Kosovo* institutions complete an effective complaint mechanism the stronger the potential to strengthen their credibility and reputation.


Good practices

Kosovo* has created the Free Legal Aid Agency. With this Agency, free legal aid is provided throughout the territory of Kosovo*. Considering the fact that not everyone can afford legal help, Kosovo* has created this mechanism that would help citizens to get the legal help that they need. Free legal aid is provided in different procedures such as in civil, criminal, administrative and misdemeanour proceedings. Free legal aid is also provided for legal information and advice regarding legal proceedings, compilation of documents and all other technical assistance related to the completion of subject matter and representation in civil, criminal, administrative and misdemeanour proceedings. During 2019, 5,539 citizens received free legal aid, of which over 90% of free legal services were provided by Agency officials, while about 8% of the beneficiaries were represented by a lawyer.

Protection of whistle-blowers

Corruption and other actions harmful to the public interest, including to public health, are more prevalent in organisations that lack a culture of transparency and oversight. A whistle-blower is a person who exposes information on illegal or unethical activities in a private or public organisation, and the rights of a whistle-blower who discloses wrongdoing, or acts and omissions harmful to the public interest, should be protected under “whistle-blowing” laws. Although usually an employee, the whistle-blower could also be a sub-contractor, supplier, unpaid trainee or volunteer. The protection of whistle-blowers is important also in the private sector, not least where they might uncover bribery to public officials or practices damaging to the environment or public health and safety.

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:

 


Domestic context

In Kosovo*, the legal framework that regulates the protection of whistle-blowers is well defined and is broadly in line with international standards. In 2018, Kosovo* enacted a new law that regulates the protection of whistle-blowers. The Council of Europe has shown an ongoing support to Kosovo*’s institutions in the area of whistle-blowing and the drafting of this new law. The new Law on Protection of Whistle-blowers is a direct outcome of the Council of Europe’s Project against Economic Crime (PECK II). It expands the framework of whistle-blowers’ protection to cover both the public and the private sector. It includes a three-tier approach as envisaged by the Council of Europe standards and offers clear procedures for protection of whistle-blowers.

Despite the fact that Kosovo*’s Law on the Protection of Whistle-blowers is seen as the most advanced law in the region, it lacks proper implementation. Even though officers were appointed in over 175 public institutions to handle whistle-blower complaints, whistle-blowing mechanisms and protection requirements need to be strengthened. Regarding this issue, Council of Europe held a meeting in October 2020 with the representatives of civil society organisations (CSOs) active in the field of protecting whistle-blowers. This meeting aimed at developing strategic partnerships with the CSO sector to support the establishment of a functioning whistle-blower mechanism in Kosovo*.

Whistle-blowers in Kosovo* not only were not protected but they were punished for their reporting. Murat Mehmeti was the team leader of Kosovo*’s Tax Investigations Unit within the Tax Administration of Kosovo*. One of his investigations showed that before 2012, over 300 Kosovo* businesses claimed tax deductions by filing fake invoices issued by shell companies. Mehmeti claims that the tax fraud reaches “an industrial scale,” and has cost the Kosovo* budget millions of euros. He decided to report the issue to the anti-corruption platform Kallxo and reveal the scheme on the BIRN television program “Jeta ne Kosove.” Mehmeti brought criminal charges against the companies at the Kosovo Special Prosecution, which in turn started an investigation of its own. Because of his reporting, he was threatened and transferred from his job.


Legislation

Since 2019, Kosovo* regulates whistle-blowing with the Law on the Protection of Whistle-blowers. The purpose of this law is to enable the whistle-blowing of violations that might happen in the public and private sector, as well as to ensure the protection of those whistle-blowers. This law defines whistle-blowers as a “person who reports or discloses information on a threat or damage to the public interest in the context of own employment relationship in the public or private sector”. This law sets out the rules and procedures on whistle-blowing, the rights of whistle-blowers and the obligations of public institutions and private entities regarding whistle-blowing.


Guidelines

The Law on the Protection of Whistle-blowers stipulates that the Government of Kosovo*, at the proposal of the Ministry of Justice, must issue a sub-normative act within six months from the date of entry into force of this law (which dates from 23 November 2018) to determine the procedure for receiving and handling the whistle-blowing cases. Despite this provision, the Government has not enacted any sub-normative act yet.

Article 17 also imposes obligations on the employer, namely:

  • A public employer with more than 15 employees, and a private employer with more than 50 employees must appoint a responsible official, as well as define and publish internal procedures for receiving and handling whistle-blower complaints.
  • The employer must take all necessary measures regarding whistle-blowing, including the protection of relevant documentation and evidence from disappearance, concealment, alteration, falsification and other actions aimed at their destruction or extinction.
  • The employer must protect the whistle-blower from any detrimental act and take all necessary measures to stop and remove any consequence of a detrimental act.

The European Union / Council of Europe Project against Economic Crime in Kosovo* (PECK II), published the Handbook on the Protection of Whistle-blowers, which provides practical guidance for both institutions and potential whistle-blowers on reporting violations and processing complaints.


Good practices

A.T.’s case, a former cashier at ProCredit Bank, is an example on how whistle-blowers are treated or might be treated if they report. In 2015 he leaked information that raised suspicions that the Director of Education in the Municipality of Prizren, legally benefited from the Municipality’s budget. Following the publication of this information, a criminal proceeding was initiated against the Director for abuse of the official position and that among other activities he used this money to pay his loan instalments and rental fee. The bank fired A.T. and filed a criminal report against him for disclosing confidential information. He was sentenced for leaking the Bank’s Information, and fined five thousand euros.

Disclosure: Declaration of assets and conflict of interest

Disclosure is the act of routinely publishing and updating particular types of information, sometimes required by law, such as the financial interests of public officials. It can support anti-corruption measures by requiring the routine publication of assets and interests that could represent a conflict of interest. A conflict of interest arises, or can be perceived to arise, when the private assets or interests of public officials can improperly influence policies and decisions taken during the exercise of their official duties.

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:


Domestic context

Declaration of assets, property and gifts is one method to fight corruption. In addition, declaration of assets is a vital tool to ensure transparency and to fight corruption and to further enable control of the origin of property. Since January 2013, non-declaration of assets is recognized as a criminal offense. Proper prosecution of non-declaration of assets is extremely important in fighting corruption in Kosovo*. For the first time in 2010, Kosovo* enacted a law that regulates this issue and since then Kosovo* has been working on creating a culture on the importance of disclosure. In 2019, almost 99% of public officials submitted their annual declarations of assets on time. Despite this high percentage, 62 cases were investigated for false declaration and other 60 cases for irregularities detected in asset declarations.


Legislation

The Law on Declaration, Origin and Control of Property of Senior Public Officials and on Declaration, Origin and Control of Gifts of All Public Officials regulates the obligation and the procedure of declaration of assets and gifts of public officials. This law obliges public officials to declare their assets, revenues and gifts, including their origins, to the Anti-Corruption Agency. This declaration can be made upon taking office, as a regular annual declaration, at the request of the Anti-Corruption Agency and after termination or dismissal from office. All declarations are sent to the Anti-Corruption Agency. The Law on Declaration and the Law on the Anti-Corruption Agency assigns this agency as the sole competent authority for the maintenance, registration and administration of these declarations.

Article 17 provides sanctions for anyone who violates the obligations set out in this law and does not declare their assets and property within the legal deadline. If these violations are not criminal offences, then public officials commit a misdemeanour and are sanctioned with a fine depending on the violation committed. In addition to fines, other protective measures can be imposed, such as a ban on exercising public function for up to 1 year. In cases when violations of provisions constitute a criminal offence, then the Anti-Corruption Agency files a criminal report. In situations when non-declaration constitutes a criminal offence, Article 430 of the Criminal Code of Kosovo* will be applicable. This article sanctions false declarations as a criminal offence as well. Besides the fine, imprisonment and confiscation of assets will be imposed as punishments.


Guidelines

Currently there is not a specific guideline on declaration of assets and gifts. However, the Law itself provides instructions and explanations on what should be declared and when it should be done. The Anti-Corruption Agency prepares forms in cases of declaration which are accessible online for anyone who is required to complete a declaration (www.akk-ks.org/deklarimi_i_pasuris/). While the asset declaration covers all substantial types of incomes and assets of officials and declaration forms allow for year-on-year comparisons of officials’ financial position, the Anti-Corruption Agency lacks manpower, expertise, technical capacity and legal authority for a meaningful oversight.


Good practices

Declarations of assets and gifts from public officials are submitted to the Anti-Corruption Agency. This agency registers and maintains those declarations. They are published on their official website (www.akk-ks.org/deklarimi_i_pasuris/) and everyone has access to them, which helps increasing transparency and accountability. However, there are cases when public officials do not declare their assets on time or they are not honest when they declare their property and gifts; in those situations, the Anti-Corruption Agency initiates a procedure for minor offences or files a criminal report. In 2018, F.R., Assembly member of the Municipal Assembly of Podujeva, did not declare his assets and property for the period from 01-31 December 2017. In this way, the Basic Prosecution in Pristina filed charges against him for committing the criminal offense “Failure to report or false reporting of assets, income, gifts, other material benefits or financial obligation”.  He pleaded guilty to the criminal offense and the Basic Court in Pristina sentenced him to imprisonment for three months and a fine of €250.

Transparency

The principle of transparency is applied to ensure that those affected by administrative decisions have comprehensive information about the results and implications of policies and about the process of decision-making. The public availability of information about government policies, programmes and activities enables citizens and local communities to gain a clear understanding of government actions, make informed choices, and participate in local decision-making processes. It also enables elected officials, those in government and those in opposition, to take informed decisions and to exercise effective scrutiny and hold the executive to account for their actions. In addition, access to information is essential for journalists and civil society representatives to effectively perform their watchdog functions and hold the government accountable.

Local government should make data available to the public in an accessible format and do so in a timely manner. This enables citizens and stakeholders to participate in decision-making processes from an informed perspective, and to monitor and evaluate government implementation of policies and decisions in order to hold public officials accountable for their actions. Transparency is achieved through a range of mechanisms, building on the right of citizens to access information. These include the disclosure of the financial assets and interests of senior public officials and elected office-holders, and the publication of information in accessible, intersearchable open-data formats.

According to the definition of the Open Knowledge Foundation, “open data is data that can be freely used, re-used and redistributed by anyone – subject only, at most, to the requirement to attribute and share alike.” Therefore, the concept of open data goes beyond the availability of public information and focuses on its use, out of which additional economic, social and political benefits are generated. To make it happen, the data published should be complete, permanent, non-exclusive, non-discriminatory, and non-proprietary, as well as provided by primary sources, in a timely manner and in machine-readable formats (more information here and here).

Limited access to public information negatively affects public trust towards public institutions, increases potential corruption risks, and restricts opportunities for various stakeholders to monitor government performance. It also inhibits citizens and stakeholders’ efforts to participate in policymaking and to design evidence-based policy recommendations for positive changes. The practice shows that access to information legislation and proper enforcement measures are an essential part of the enabling environment for citizens’ access to information.

Public procurement is considered to be one of the key areas susceptible to corruption. It accounts for around 12 percent of global gross domestic product, and in most high-income economies the purchase of goods and services accounts for one-third of total public spending. In short, public procurement is a significant area for potential corruption, collusion and other illegal practices. To avoid public procurement-related corruption risks, electronic means and platforms operating through open data solutions are increasingly available and used by government authorities to reform state procurement tendering procedures. Combined with open contracting (where bids and contracts are made public), the increase in fully accessible, well-publicised procurement processes opens tendering to more bidders and reduces the scope for anti-competitive practices and bribery.

Another important component of transparency principles is the openness of the financing of political parties and election campaigns, as it is important for the electorate to know the sources of financing, and how the money is spent, in order to make informed decisions and to understand which financial, political or other interests are supporting particular candidates or parties. The transparency of political donations is a preventive measure against the use of money emanating from illicit and criminal sources in politics and elections.

Finally, to ensure that state resources are used in an economical, efficient and effective way, the independence and institutional capacity of the body responsible for external audit should be secured. Members of the wider public should have the possibility to familiarise themselves with reports and major recommendations issued by the auditor. External audit is important to identify major challenges in the public sector, improve transparency and performance of public institutions, and design evidence-based policies.



General Domestic Context

From the outset, Kosovo* is faced with the challenge to fight corruption and increase public transparency. Unfortunately, these two challenges have negatively affected the building of well-functioning institutions and the creation of political stability. Transparency in the public sector is very important for building citizens' trust in governing institutions and increasing public accountability.

Nevertheless, in the last years, Kosovo* has shown development and improvements in increasing transparency. These developments are found in the legal framework, as Kosovo* is enacting new laws and amending their current laws in order to comply with European legislation and international standards. In this way, in 2019, Kosovo* enacted the new law on Access to Public Documents that regulates the right to access to public information and open data.

It is worth mentioning that Kosovo* has made progress in open data and e-government to achieve transparency. Hence, every public institution and agency and every municipality has their own website where they publish information about their organisation, functions and activity. It is becoming easier to access information and data through those websites and platforms. An example on improvement on openness and transparency is the Assembly of Kosovo*. Based on a policy paper that is prepared by Open Data Kosovo that analyses the level of transparency, openness, and accountability of the legislative power shows that the Assembly of Kosovo* is becoming more open and transparent for the citizens. In 2016 Kosovo*’s Assembly scored 60% in the indicators of openness. This percentage dropped in 2017 to 49% which it was not evaluated as satisfactory. Kosovo*’s ranking was more satisfying in 2018 as it scored overall 73%. And the Kosovo* Assembly received an overall score of 80,5% in the openness for the year 2019. Regarding accessibility the Kosovo* Assembly scored 68% on the principle of accessibility which is 13% higher than the previous year. The Assembly of Kosovo* scored a total of 88% on the principle of Transparency.

Access to information

Access to information is the legal right for citizens to request and receive information from public authorities.  It is often enacted by Freedom of Information legislation. As an integral part of the right of freedom of expression, access to information is a human right and everyone should have the right to access information from public bodies and public agencies in accordance with the principle of maximum disclosure subject to only a narrow, clearly defined, set of exceptions proportionate to the interest that justifies them (e.g. grounds of security or data privacy). More information here and here.

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:

  • Resolution 59 of the UN General Assembly adopted in 1946, states that “freedom of information is a fundamental human right”, and Article 19 of the Universal Declaration of Human Rights (1948) states that the fundamental right of freedom of expression encompasses the freedom to “to seek, receive and impart information and ideas through any media and regardless of frontiers”.

Domestic context

Access to public information increases transparency and accountably, it lifts citizen’s participation in the decision-making processes and affects the building of trust between institutions and citizens. In Kosovo*, access to information is a constitutional right guaranteed by the Constitution of Kosovo*, which establishes that every person is entitled to the right to access public information and that documents held by public institutions and authorities are public. To implement this constitutional right, Kosovo* has in force the Law on Access to Public Documents, which regulates this right in detail. This law came into force in 2019 and includes changes in comparison with the old law, such as the introduction of the principles of proactivity and disclosure of data and the establishment of the Agency for Information and Privacy. The law provides two ways of accessing public documents: through proactivity, where institutions are forced to proactively publish data, and through direct request. However, this right is not always respected in practice. Citizens, civil society and media encounter difficulties in securing public information, data and documents. The problem lays in the lack of publication of public documents and in the refusal to allow access to these documents when they submit such a request. Balkan Investigative Reporting Network has published a report on access to public information in the Western Balkans with the aim to promote transparency and accountability of public institutions to their citizens. During the reporting period, January 2017 to June 2019, BIRN submitted 854 official requests for access to public documents to public institutions. Out of this number of requests sent, 337 of them were sent to different institutions in Kosovo* like the municipalities, the Ministry, Telecom of Kosovo, the Prosecutorial Council, the Judicial Council, the Office of the President, the Office of the Prime Minister and the Public Procurement Review Body. Of these requests, 188 were approved, 27 received partial responses while 122 were rejected.


Legislation

In Kosovo*, the right to access to information is regulated with the Law on Access to Public Documents, which guarantees the right to access public documents to every person. This right covers all public documents that are produced, received, maintained or controlled by public institutions. Public documents are defined as “any act, fact or information, stored in electronic form or on sound, in print, in visual or audio-visual recordings produced or maintained by a public institution”. Access to public documents is done through proactive publication of public documents by public institutions, which should be done electronically on the official website of each public institution. That said, the law also regulates that publications can be done in printed form, through broadcast or in any other form which enables access to the largest possible number of the public. This law requires each public institution create an official e-mail address, especially for public communication, and to nominate one person to manage and control access to public documents.

Article 10 of this law stipulates that everyone has the right to access public documents upon request. The public institution, within 7 days, should issue a decision to grant access to the document requested. If it does not issue a decision, then its silence is considered a negative response. If they issue a decision refusing a request, this restraint of the right of access to the public document should be exercised in accordance with the principle of proportionality. Before refusing someone’s request, the public institution should do a “Damage and Public Interest Test” to determine if the damage caused to the protected interest outweighs the public interest in accessing that public document.

If the public institution refuses the request to access a public document, the applicant has the right to use legal remedies. This law regulates that the applicant can file a complaint within the Information and Privacy Agency. Procedures before the Agency and the way it manages complaints are regulated by Article 20 of the Law on Access to Public Documents. If the Agency issues a decision that refuses the request, the applicant can file a lawsuit at the Court. Finally, the applicant can file a complaint to the Ombudsperson.


Guidelines

Currently, there is not a general and unified guideline on access to information. However, based on the Law on Access to Public Documents, the Ministry of Local Government has issued Administrative Guidance on the Transparency in Municipalities. This administrative guidance aims to increase the transparency in municipalities and of municipal bodies by informing and publishing their normative acts and documents that are in the interest of the citizens. It also aims to strengthen citizen participation in decision-making. Besides publishing public acts and documents, meetings of the Municipal Assembly and Committee are required to be open to the public and media and prior to the adoption of acts municipal assemblies must hold public consultations and meetings with the citizens.


Good practices

The Municipality of Pristina has developed a portal that gives the citizens access to its activity. Part of this portal is access to public information. This portal informs its citizens on their rights of access to public information through publishing the Law on Access to Public Information. It’s a form prepared by the Municipality on the request to access to public information and it has the names and emails of contact persons for access to public documents. The municipality publishes annual reports on the requests for access to public documents. Based on these reports, in 2020 there were 30 requests to public documents and Municipality gave access to all of the requests.

Open Data

Open data is the publication of data and information in a format that may be freely used, modified and shared. The OECD states that open data is “a set of policies that promote transparency, accountability and value creation by making government data available to all”. By making data generated through the activities of public bodies available, government becomes more transparent and accountable to citizens. It also supports business growth and the development of services centred on citizens, and provides important data for research and innovation by public bodies, the private sector, and civic stakeholders.

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:


Domestic context

Open data in Kosovo* is generated in all public institutions which are allowing citizens to oversee the activities of the public bodies and institutions. However, publication of open data is more pronounced among central government institutions, in comparison to local government. Kosovo* is ranked 58 (out of 94) in the Global Open Data Index. Kosovo* is ranked 68th in the 2017 Open Data Inventory, which is an improvement in comparison to 2016’s measurement that ranked it as 82nd. To facilitate openness and transparency of the work of the public institutions in Kosovo*, in 2014 was founded Open Data Kosovo as a non-profit organisation that promotes transparency and accessibility for the citizens of Kosovo*. Open Data Kosovo leads in the opening of governmental data in Kosovo* since its founding. Most of the data published by the Kosovo* government as open data so far have occurred under the leadership and expertise of the Kosovo Chamber of Commerce, including procurement, air quality, water surface quality, election monitoring, asset declaration, and other types of data.

All the laws, international agreements, by-laws of the Government and ministries, decisions of the Constitutional Court and judicial institutions, decrees of the President, and acts of municipalities are published on the Official Gazette of the Republic of Kosovo (gzk.rks-gov.net) and are open for access to everyone.


Legislation

Legal regulation of open data is included in the Law on Access to Public Documents. Article 1.4 defines open data as “the data produced, received, maintained or controlled by public institutions, which can be freely used, modified and distributed by any person, provided that they remain open and attributable to the source”. Article 8 states that open data should be published based on the initiative of public institutions themselves without a request submitted by the interested parties. The law requires open data to be published in a central open data portal, which is developed and managed by the ministry responsible for public administration. Open data should be public in such a way that it allows all interested parties to use it freely. The law requires that open data should be published in open format, which allows interested parties to read and modify them without technological obstacles.


Guidelines

Based on the Law on Access to Public Documents, the Government of Kosovo* has adopted the Regulation on the Government Public Communication Service. The purpose of this regulation is to set out the functioning of a coherent and co-ordinated system for government public communication. According to this regulation, the Public Communication Office within the Office of the Prime Minister and in each Ministry receives and conducts initial handling of requests for access to open data.


Good practices

Open Data Kosovo is a non-profit organisation that was founded in 2014 that promotes openness and transparency of the work of the public institution through technology. Open Data Kosovo promotes the idea that governance data should be freely available for everyone to use and republished as they wish, without restrictions from copyright, patents or other mechanisms of control.  Open Data Kosovo offers a number of highly efficient and innovative projects and each of these projects offers digital solutions. Open Data Kosovo aims to convey the importance of information technology in increasing transparency and solving various problems within society.

Public procurement

Public procurement refers to the process by which public authorities, including local authorities, purchase work, goods or services. It is an essential part of public service provision for local and regional authorities; efficient and cost-effective procurement is key to good governance.

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:

 


Domestic context

Public procurement has been for a long time one of the most criticised sectors by civil society and the media in Kosovo* due to various corrupt affairs through public tenders. However, after the creation of the e-procurement system, Kosovo* has taken a step forward in increasing transparency and accountability. Yet, the lack of control over the quality of works or material goods, services and everything else that the public authorities procure through public tenders remains a concern. Kosovo* has been trying to amend the Law on Public Procurement through amendments that are aimed at advancing transparency and accountability of public officials, contracting authorities and the contractors.

At local level, procurement is conducted by municipal procurement offices while, at the central level, procurement is conducted by the Central Procurement Authority. The competencies of this Authority are to develop joint procurements for Contracting Authorities, to perform procurement activities on their behalf, and to assist in carrying out procurement activities. The Public Procurement Regulatory Commission (PPRC) is an independent institution established by law and with the mission to develop, operate and oversee the public procurement system in Kosovo*. Its mission also includes the operation and oversight of the electronic public procurement system in Kosovo* (E‑Procurement).

Another authority with an important role in the public procurement system is the Procurement Review Body. This body is established by decision of the Assembly of Kosovo* in line with the Law on Public Procurement. The competencies of this body are the review of public procurement activities that are carried out by the Contracting Authorities after a party has filed a complaint.


Legislation

The Law on Public Procurement, which regulates this specific field, has been amended several times over a short period of time. It has been amended and supplemented by Law No. 04/L‑237, Law No. 05/L‑068 and Law No. 05/L‑092. Article 2 of the law clearly obliges all contracting authorities to carry out all procurement activities based on this law and the changes that have followed over the years. Chapter II of the law sets out the general principles on which Public Procurement should be carried out in Kosovo*, which are: economy and efficiency, equality in treatment and non-discrimination.


Guidelines

The Public Procurement Regulatory Commission through its website (e-prokurimi.rks-gov.net) assists contracting authorities and economic operators to operate in public procurement. Contracting authorities have a detailed manual, a video manual, and a contract management manual and performance evaluation which includes an explanatory video. Economic operators also have a manual, which explains in a detailed way the registration process, the preparation of bids, advanced search, etc.


Good practices

Kosovo* has established the Public Procurement Regulatory Commission (PPRC) as an independent regulatory agency as per the Law on Public Procurement. The PPRC is responsible for the development, operation and overall oversight of the public procurement system in Kosovo* and other responsibilities stipulated by this law. The PPRC uses an e-procurement platform (e-prokurimi.rks-gov.net) to publish public contracts, which can be published by the contracting authorities themselves.

E-procurement allows all public institutions to conduct procurement activities online. Businesses can apply and receive information on public contracts. Such transparency makes the acceptance of bids and accompanying materials, required for the tender, safer and better protected from possible manipulations. During 2019 there were 12,461 public contracts registered on the platform, around 7,650 economic operators and 20,500 users.

Citizens have access to this portal and can monitor the activities of public institutions. This platform is playing a key role during the COVID-19 pandemic as it allows public institutions to continue their work and functioning.

External audit

External audit is the regular, independent scrutiny of accounts and financial information to ensure that public money is used appropriately and effectively. External audits are undertaken in accordance with relevant laws and rules to support those external to government to hold it to account. As well as audit of the financial statements of local budget institutions, external audit can look beyond finances to assessing the performance of government against its own objectives, or in providing programmes and services.

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

The Auditor General of Kosovo* is the highest institution of economic and financial control; the National Audit Office (NAO) is an independent institution that supports the Auditor General in performing his/her duties. Auditing activities play an important role in ensuring that the interest of taxpayers and other stakeholders are maintained while enhancing public accountability.  

The Auditor General reports to the Assembly of Kosovo* and is entitled to control all the financial and administrative processes, as well as other activities, programmes and projects managed by public institutions, including the process and proceeds from the sale of assets, privatisations and concessions. The reports compiled by the National Audit Office aim at promoting accountability and providing a solid basis to hold the managers of each budget organisation into account thus increasing public trust in how the public funds are spent.

The National Audit Office was established by the United Nations Interim Administration Mission in Kosovo (UNMIK). As one of the most important institutions in Kosovo*, for more than 10 years the National Audit Office has been chaired by an international auditor, who performed the conferred mandate with the support of local personnel.

During 2019, NAO continued to increase the audits portfolio, by including more publicly owned enterprises and budget organisations. In total, NAO completed 119 Regularity audits (Audit of the Annual Financial Report of the Kosovo* Budget of 2019, 95 budget organisations (27 central level institutions, 30 independent institutions and 38 local level institutions, 14 publicly owned enterprises and 9 audits of projects (funded by donors) and 13 Performance Audits.

Full membership in the International Organisation of Supreme Audit Institutions (INTOSAI) is considered one of the greatest achievements in the history of public sector external audit in Kosovo*. This membership enabled the exchange of knowledge and experiences with Supreme Audit Institutions of 194 member states of this Organisation in order to develop institutional capacity to implement duties and responsibilities with high professional integrity.


Legislation

The institution of the Auditor General was integrated into the Constitution of Kosovo* in 2008 and, shortly after, the Law on the Establishment of the Office of the Auditor General of Kosovo* and the Audit Office of Kosovo* was adopted.

In June 2016, the Assembly of Kosovo* promulgated the Law on the Auditor General and the National Audit Office, which substituted the old one. It marked the completion of legal framework on auditing and the full ownership of these local institutions.


Guidelines

Audit is a qualified examination of legal and financial compliance or performance, carried out to satisfy the requirements of management (internal audit), or an external audit entity, or any other independent auditor, to meet statutory obligations (external audit). In addition to the Law on the Auditor General and the National Audit Office, the Office of the Auditor General drafted the Audit Quality Management Guide and Performance Audit Guide.


Good practices

Based on the NAO Annual Report 2019 the Office completed Regularity Audits in 38 municipalities and provided 488 recommendations for the local level institutions. The declining trend of the number of recommendations over the last 3 years (600 in 2017 and 585 in the following year) is an indication that the municipal authorities are taking NAO recommendations more seriously and are making efforts to address them. The same report shows that over half of recommendations given in year 2018 are completely or partially implemented by the municipal authorities (217 recommendations or are complete and 78 partially implemented).

Financing of political parties

Financing of political parties and election campaigns is a necessary component of the democratic process. It enables the expression of political support and competition in elections. Principles governing the financing of political parties should include fairness in the distribution of state funding, strict rules concerning the transparency and limits on the size of private donations, ceilings on campaign expenditure, full transparency of funding and expenditure, independent election commissions, independent audit of campaign finance, and the consistent imposition of proportionate sanctions on candidates and political parties that violate the rules (such as fines or a reduction in state contributions to future election campaigns).

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

Financing of political parties is one of the most discussed issues in Kosovo*. Despite the legal framework, financing of political parties and their campaigns lack transparency, and the relevant legislation remains weakly implemented. The civil society and the international community have criticised political parties in Kosovo* for the lack of transparency when it comes to reporting revenues and expenditures. More information available here, here and there.

In this way, the Law on Financing of Political Parties was amended and completed in 2012 and in 2013 with the aim to increase transparency and accountability of political parties. One of the changes that were made concerns the financial control of political parties. The amending law regulates that the Assembly of Kosovo* audits annual financial reports and campaign financial statement reports of political parties before the Central Election Commission publishes them. In order to implement this legal obligation, the Assembly of Kosovo* together with the Committee for the Oversight of Public Finance selects through a public competition at least 10 licensed auditors to audit these reports. However, this legal change did not improve the situation nor increased transparency due to the fact that the Assembly failed to select external auditors. Consequently, the Central Election Commission did not publish reports of political parties for years.

As a result, civil society and international organisations in Kosovo* recommended that the Law on Financing of Political Parties be amended. In June 2020, 100 civil society organisations protested against the draft law on financing of political entities claiming that it violated Kosovo*’s Constitution and international party funding regulations. Since 2017, the Agenda for European Reform emphasises the need to amend the Law on Financing of Political Entities. The European Commission report on Kosovo* also emphasises the need to further strengthen the electoral process and the adoption and implementation of laws to address high-level corruption in accordance with the opinions of the European Commission for Democracy through Law (Venice Commission).

In 2018, the Government of Kosovo* established a working group to amend the Law on Financing of Political Parties and the Law on General Elections. After the working group drafted a new law on the financing of political parties, it was sent for opinion to the Venice Commission. Following the opinion of the Venice Commission, the Government proceeded with the draft for approval in the Assembly of Kosovo* after making some changes regarding the allocations to the democratisation fund.

In the Assembly, the draft law was treated by the Committee on Budget and Finance, which established a working group for the draft. Civil society, international organisations and the members of the Assembly were excluded from this working group, keeping it very closed and away from the public. This working group made major changes to the proposed draft – many of them contrary to the opinion of the Venice Commission. Later on, in 2019, the civil society requested the withdrawal of the draft law after assessing that the interventions made in it by the working group reduced the transparency and accountability of political parties to the public.

In this way, the Government withdrew the law from the Assembly. In July 2020, the new Government reactivated the drafting of the law, requiring in advance the opinion of the civil society. In September 2020, the Government sent the draft law to the Assembly, where it was expected to be reviewed and voted by the end of 2020; however, due to the dissolution of the Assembly, it is expected that the draft law be voted in the following legislature.


Legislation

Currently, the financing of political parties is regulated by the Law on Financing of Political Parties. This law sets out the manners and conditions of funding of political parties in Kosovo*, and regulates the administration, monitoring and reporting on the spending of incomes of the political parties in order to increase transparency.

According to this law, financial and material sources of political parties are membership fees, donations, financing from the budget of Kosovo*, assets and income from the activities of the political entity such as publications, publications, sale of advertising materials, etc. Political parties are requested to submit an annual financial report to Central Election Commission. This financial report includes balance sheets, profit and loss statements and a statement showing every payment made to another person during the reporting period.

Public financing of political parties is done through the Budget of Kosovo*, from the Fund for Support of Political Entities. As per the Law on Financing of Political Parties, the Assembly of Kosovo* may allocate up to 0.05% of the Budget for financing of central and local election campaigns.

The law also provides for penalties in cases where political parties violate the provisions and obligations set forth therein. In order to increase transparency, the amending laws (Article 21, Article 7, Article 12, and Article 10) increased the fines for violating the provisions of the law. In cases when political parties do not pay its obligations such as fines imposed by the Central Election Commission, tax liabilities, or liabilities arising from the execution of final court decisions, then that amount is deducted from the budget allocated to the political party by the Fund for Support of Political Entities.


Guidelines

The Central Election Commission enacted the Electoral Rule for Financing of Political Parties and Sanctions and the Election Rule for Limiting Campaign Expenses and Financial Declaration. The former regulates in detail the procedures for financing, administration, supervision and transparency of political parties. It also regulates the reporting of political parties. Furthermore, it sets out the penalties that the Central Election Commission can impose when the Law on Financing Political Parties and the Law on General Elections are violated in any form.

According to the Election Rule for Limiting Campaign Expenses and Financial Declaration, the Central Election Commission determines the maximum amount of expenses in a political campaign and no political party can exceed them. Every political entity is obliged to submit a report on the financial declaration of the campaign. This rule regulates in detail what this report must include and it sets out sanctions that would be imposed in cases when provisions of this rule would be violated.


Good practices

The Central Election Commission publishes annual financial reports and financial declaration reports of political parties. Usually, the Central Election Commission publishes the annual financial reports after the audit is conducted, which takes time. In 2020, unlike prior years, the Central Election Commission published unaudited annual financial reports of each political party before the elections were held. The fact that those reports were published before the election day was considered as an action that increased transparency about the work and spending of political parties.

Citizen Participation

“The right of citizens to participate in the conduct of public affairs”, including at the local level, is explicit in the European Charter of Local Self-Government, and the Additional Protocol to which states that “the right to participate in the affairs of a local authority denotes the right to seek to determine or to influence the exercise of a local authority's powers and responsibilities”. When local authorities consult with, and engage, citizens on the design of, and evaluation of, public services, they pave the way for better policy outcomes and also for greater mutual trust between citizens and government.

Citizen participation involves outreach to a range of local stakeholders, such as civil society activists, journalists, members of academia, business representatives, local communities, and active citizens. It is important that it is inclusive, taking into consideration the views of the wider public, expert stakeholders, and representative groups, including the vulnerable and marginalised. Moreover, stakeholder engagement must include outreach to those whose lives and interests will be affected by the implementation of the decisions under consideration. To ensure that such stakeholders are identified, public consultations should be launched before a commitment to action has been made or before a draft decision has been tabled. A more open consultative process first invites stakeholders to discuss and identify the problems, challenges and opportunities, then examines the different policy scenarios, before any decisions are drafted.

Participatory mechanisms can be grouped in the following categories that reflect different levels of engagement:

 – informing the public about local priorities, government programmes and plans;

 – holding consultations with the public and/or particular groups of people regarding public policies and collecting their experience or expertise;

 – collaborating with the public and/or particular groups of people to develop solutions to local problems (including co-creation processes such as in the formulation of Open Government Partnership (OGP) Action Plan commitments);

 – engaging local communities in decision-making processes through deliberative processes, voting (such as participatory budgeting and referenda), and other decision-making tools.

According to the Additional Protocol, “the law shall provide means of facilitating the exercise” of the right of citizens to participate. In order to ensure that the above-mentioned forms of participation are genuine engagement rather than token exercises, the consultation process around the formation of new policies and legislation needs to be backed up by laws, regulations and guidelines, and also by strong political will.

Inclusive policymaking must at the same time be effective, and the public should be well informed about their rights, opportunities and ways they can participate in local decision-making. The policymaking processes need to be clearly stated well in advance to enable citizens and stakeholder groups to prepare their submissions and interventions. Timeframes with clear entry-points for citizen engagement need to be published to ensure that citizen participation is a meaningful exercise, and the local authorities should provide feedback to those who make policy proposals or recommendations. The local authority should ensure that the viewpoints and positions of stakeholders are properly reflected and considered when adopting policies, and feedback should provide clearly stated reasons for the decisions to adopt proposals, or not to adopt them. This inclusive approach ensures that policies are relevant, evidence-based, cater to intersectional needs, and are responsive to public demands.

Local authorities also need to employ officials trained in managing public consultations and ensuring that the feedback to citizens is prompt and comprehensive.

Such inclusive approaches ensure that local authorities make better and more relevant decisions that reflect public interests and are well understood by all citizens. In tandem, local communities can develop a sustained capacity to voice their concerns, design solutions and monitor their proper implementation, resulting in improved public trust towards local service delivery.

 



General Domestic Context

Since 2008, Kosovo* has begun a gradual decentralisation of government. Local self-government is regulated by the Constitution of Kosovo* in Article 123 and the Law on Local Self-Government. The basic unit of local self-government is the municipality. Currently, local government in Kosovo* is exercised in 38 municipalities.

In Kosovo*, local government is exercised on the principles of good governance, transparency, subsidiarity, and efficient and effective service delivery, paying special attention to the specific needs and concerns of non-majority communities and their members. Citizen engagement and participation in government is also important for the well-functioning of local self-government. The importance of this participation is also expressed by the Constitution of Kosovo*, which obliges municipalities to encourage and ensure active participation of all citizens in the decision-making process of municipal bodies. It is important to create effective mechanisms for citizens to engage in local decision-making. Their engagement affects the level of governance and functioning of the municipality in a way that is beneficial for its citizens. It is important to engage citizens not only during the decision-making process, but also during policymaking. This participation benefits not only the municipality but the whole community. Citizen participation above all is a key tool to increase the transparency and accountability of local and central authorities.

Mechanisms for citizen participation and direct democracy are defined by the Law on Local Self-Government. Those mechanisms include: public information, public consultation, the right to petition, citizens’ initiative, referendum, recall of the Mayor and consultative committees. In order to achieve transparency and civic engagement, Kosovo* has issued the Administrative Instruction on Transparency in Municipalities, the Administrative Instruction on Minimum Standards of Public Consultation in Municipalities and Regulation on the Procedure for Drafting and Publishing Municipal Acts. The aim of these acts is to increase transparency, accountability and the well-functioning of the municipalities, which would be beneficial for its citizens.

When it comes to citizen participation, Kosovo*’s legal framework is well defined and provides a wide range of mechanisms in line with European and international standards. However, those mechanisms are not always used in practice. While public consultation and public information remain the most used mechanisms, other forms such as petitions, initiatives, referendums or the recall of the Mayor remain at a low level of implementation. The reason behind this situation is the low level of awareness and interest among citizens to use those mechanisms.

In recent years, municipalities in Kosovo* have increased the level of transparency and accountability, thus enabling citizens to access public information and participate in local policymaking. Every municipality has its own website that allows citizens to have access to the municipality’s activity, organisations, board and decisions taken. Almost all municipalities broadcast live sessions of the Municipal Assembly through various platforms. Due to the COVID-19 pandemic and the related precautionary measures, municipalities are holding public consultations online and therefore not limiting their citizens on exercising their rights. 

Concerted efforts to improve and strengthen the capacity of municipalities to provide cost effective and accountable services are in line with the Strategy on Local Self-Government 2016-2026. More specifically, objective 2 of the Strategy seeks to establish a better governance framework to ensure democratic representation of the citizens and an efficient municipal administration, while fourth objective requires the strengthening of partnership between local government, civil society and businesses to create an active, comprehensive and cohesive citizenship.

Open policy making

Open policy making is a broad term describing policy development that is transparent and participatory. It describes a way of making policy and decisions that draw on the latest interactive tools that open up policymaking to different stakeholders in an increasingly digital world. There is no one-way to do open policy making: different policy decisions will need different approaches.

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:


Domestic context

Open policymaking is a crucial element for transparency and democracy. The main purpose of open policymaking is to increase citizen participation in decision-making and governance, which would enhance the transparency and accountability of public authorities. Open policymaking is important during the policy development process so that citizens have a say in the creation of those policies that affect their needs and interests.

Kosovo* has created a good legal framework that promotes open policy-making and which is in compliance with European and international standards. Citizen participation is enshrined in the Constitution of Kosovo*, which obliges municipalities to encourage and ensure an active participation of all citizens in the decision-making process of municipal bodies. Open policymaking is also foreseen in the Law on Access to Official Documents, which requires all public institutions to make public their activities and publish every document that is of interest for the citizens of Kosovo*. The Law on Local Self-Government also regulates open policymaking in its Chapter IX.


Legislation

Open policymaking in local government in Kosovo* is regulated by the Law on Local Self-Government. In order to ensure transparency, this law regulates that the Municipal Assembly and all of it committees hold meetings open to the public and all members of the public are allowed to follow and participate in them.

That said, the law also regulates exceptional cases when the public can be legally excluded from attending meetings of the Municipal Assembly or any of its committees. The public may be excluded in cases where an open meeting might lead to public disorder or violence, threatens to reveal information and documents which are classified as confidential according to the Law on Access to Official Documents, and threatens to disclose sensitive personal or commercial information or information on current or future litigation.

Chapter IX of the Law on Local Self Government defines mechanisms for citizen participation and direct democracy. This chapter foresees and regulates public information and consultation, the right to petition, citizens’ initiative, referendum, recall of the Mayor and consultative committees. All these mechanisms directly increase transparency and participation in policymaking as they foresee the engagement of citizens in the governing procedures of their municipalities.

Open policymaking is also regulated by the Law on Access to Official Documents. With this law, all public institutions are obliged to proactively publish all public documents. They should publish above all, daily data on the public activity of the local authorities which lead to keeping the citizens informed about their activities. The law also regulates the possibility for citizens to request public institutions to publish or give them access to public documents.


Guidelines

Based on the Law on Local Self-Government, the Ministry of Local Government enacted the Administrative Instruction on Transparency in Municipalities. Its purpose is to increase transparency in municipalities and its bodies through the publication of normative acts, decisions and documents that are of interest for citizens. Most importantly, this administrative instruction aims to enhance public participation in decision-making.

This Administrative Instruction regulates that municipalities must hold at least two meetings per year with citizens for issues of general interest. Besides those two meetings, the law regulates that municipalities must hold other consultative meetings within the neighbourhoods, settlements or any location within the municipality to discuss issues regarding the budget, projects, local economic development, usage of municipal property or any other issues of general interest. Article 12 regulates forms of citizen participation in decision-making, allowing citizens of the municipality to participate in all phases of the drafting and implementation of local policies: planning, discussion, decision-making, implementation and monitoring. Article 13 of this Administrative Instruction adds that all acts that concern citizens should be publicly consulted before their adoption. 


Good practices

Building upon the Regulation on Minimum Standards for the Public Consultation Process, the Office of Good Governance within the Office of the Prime Minister has created an online platform (konsultimet.rks-gov.net) which is used by all public bodies to identify stakeholders to develop public consultations. This platform provides the opportunity for citizens, civil society organisations and all relevant parties to take part in the public consultation process on legislative initiatives and in the decision-making and policymaking process.

Participatory budgeting

One of the crowdsourcing forms of citizen participation, participatory budgeting invites citizens and community groups to propose new initiatives or improvements to public services that should be funded by the local authority. Different models include voting by citizens, often online, on different projects. It provides a way for community members to have a direct say in how public money should be spent. It creates opportunities for engaging, educating, and empowering citizens. It can also promote transparency, which in turn can help reduce inefficiency and corruption.

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:


Domestic context

Citizen participation in the budget-making process is another important factor that positively contributes to the level of transparency and accountability of governing bodies. Central and local authorities function based on the Budget of Kosovo*, which is gathered from taxes and duties as well as other forms of revenues paid by the citizens of Kosovo*. Therefore, it is important to create mechanisms that allow the citizens to be part of the budget-making processes so that they can be informed about where and how their money is spent. In the local level of government, municipal budgets have five categories: wages and salaries, goods and services, utilities, subsidies, and capital investments. That is why the budget is the most important municipal act because directly affects the quality of life of citizens.

The Law on Local Self Government regulates the participation of citizens in the budget-making process in Kosovo*. Its article 69 (Right of petition) stipulates that any person or organisation with an interest in the municipality has the right to present a petition the Municipal Assembly on matters relating to the responsibilities and powers of the municipality. While article 70 (Citizens’ Initiative) ensures that citizens can initiate a regulation within the competencies of the municipality, for adoption by assembly or by a vote of the citizens in accordance with the applicable law, article 73 (Consultative Committees) obliges Municipal Assembly to establish consultative committees within sectors for the purpose of enabling citizen participation in the decision-making process.

Based on a 2019 Report on Transparency in Local Governance by KDI, municipalities of Kosovo* have shown improvement in the publication of the budget by 19%, investment plan by 17%, quarterly expense reports by only 1%, Annual Summary Report of the municipality’s budget for the previous fiscal year by 12%, midterm budgetary framework by only 2%, and external audit report by 13%.


Legislation

According to Article 24 of the Law on Local Self Government, the municipal budget consists of own source revenues, grants from the Government of Kosovo*, donations and other revenues. Further, it states that the budget and finances of municipalities are regulated by the Law on Local Government Finance. As per Article 52, every municipality must have its own Policy and Finances Committee, which is legally responsible for reviewing all policies, fiscal and financial documents, the annual midterm budget and any budget changes during the fiscal year.

The Law on Local Government Finance determines the financial resources that are available to municipalities in Kosovo*, including municipal own source revenues, grants and other financial resources that are necessary for the exercise of municipal competencies. According to this law, municipalities have the right to have sufficient financial resources, which they can freely dispose and are equivalent to their municipal competencies. This law regulates in detail what are the municipal taxes, rents, fines, co-payments and other municipal own source revenues and it determines other grants and transfers for delegated competencies.


Guidelines

The Administrative Instruction on Transparency in Municipalities obliges the municipalities to provide for transparency in their spending. Each municipality is required to publish on its official website the approved Budget Plan, Quarterly Budget Reports, the Midterm Budget Expenditure Framework and a Financial Summary Report of the previous fiscal year. Moreover, the Ministry of Finance issues the Budget Circular, which is the guiding document that the Ministry of Finance sends to the municipality for the preparation of the budget proposal and other budget allocation requests.

The budgeting process in Kosovo* includes some steps which require the participation of citizens. On 15 May of each year, the First Budget Circular is issued. During May and June, municipalities hold open hearings with citizens. The aim of these hearings is to identify citizens' needs for future investment planning. On 30 June, the Midterm Budget Expenditure Framework is approved and published online. On 1 September, the Mayor approves the Budget Proposal and sends it to the Assembly of Kosovo*. The Municipal Assembly is required to hold at least one public hearing before approving the budget proposal. The purpose of holding public hearings is to ensure that the planned investments are in line with the needs and requirements of citizens. By 30 September, the municipal budget proposal is approved by the Municipal Assembly. After its approval, the Municipal Assembly sends it to the Ministry of Finance. The next step includes the approval of the budget proposal by the Government of Kosovo* by 31 October and sent to the Assembly of Kosovo*. Finally, the budget of Kosovo* should be approved by 31 December by the Assembly of Kosovo*.


Good practices

The Municipality of Pristina has created an online platform that publishes every activity and document of general interest for its citizens. Due to the COVID-19 pandemic, the Municipality has decided to hold online public meetings with citizens and avoid meeting in person. One of those meetings that will be held relate to budget planning. Thus, the Municipality published the “Schedule of ‘Online’ Public Hearings with Citizens for the Budget Planning for 2021”, which includes a table with the dates of the five meetings to be held. The Municipality has provided instructions on how to access the meetings, the time they will be held, the agenda of each meeting and the link to access them.

Public consultation

Public consultation is a formal, often legally required, process for citizens and other stakeholders to give their views at key stages of the policy process. It can be both online and offline, or a mixture of both. Its main goals are to improve efficiency, transparency and public involvement in important decisions. Done in a timely and effective way, public consultation can increase the quality of decision making, improve  cost-effectiveness, render more sustainable policy solutions, and generate greater public trust in decision-making.

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:


Domestic context

Public consultation is considered as a form of communication between the governing bodies and the citizens. The public consultation process is a vital element of a transparent government, due to the fact that it enables citizens to discuss and monitor the work of the local government.

Kosovo*’s framework is well defined and regulates public consultation at both central and local levels of governance. At the central level, public consultation is regulated by the Regulation on Minimum Standards for the Public Consultation Process, which defines the standards, principles and procedures of the public consultation process between public authorities and interested parties in the policymaking and decision-making process. At the local level, it is regulated by the Law on Local Self-Government, the Administrative Instruction on Minimum Standards of Public Consultation in Municipalities and the Administrative Instruction on Transparency in Municipalities.

KDI’s Transparency Index in Municipal Governance 2019 shows that 29 out of 38 municipalities have published their draft decisions and agendas for public consultation. Also, 28 municipalities published the draft budget for public consultation. In general, municipalities have been very active with regard to public hearings relating to budget approval.


Legislation

The right to public consultation is regulated and protected by the Law on Local Self-Government. According to Article 68 “Each municipality shall hold periodically, at least twice a year, a public meeting at which any person or organisation with an interest in the municipality may participate.” The purpose of these open meetings is to inform citizens of the activity of the municipality and to give participants the chance to ask questions and make proposals to local elected representatives. Municipalities are obliged to inform citizens about any important plans or programmes of public interest.


Guidelines

Public consultation is also regulated with the Administrative Instruction on Transparency in Municipalities. Article 13 of this Administrative Instruction establishes that “municipal acts of benefit to citizens are subject to public discussion prior to adoption, including the organisation of debates in rural areas.” This article also instructs that municipalities should act in compliance with Administrative Instruction on Minimum Standards of Public Consultation in Municipalities when it comes to public consultations, which aims to promote and ensure the participation of citizens and other stakeholders in the policymaking and decision-making process at the local level. This Administrative Instruction “defines the rules, principles, forms, procedures and minimum standards of public consultation in municipalities during the drafting of municipal policies and by-laws”.

The Government of Kosovo* has created a platform (konsultimet.rks-gov.net) which is used by all public bodies for the development of public consultation. The Administrative Instruction on Minimum Standards of Public Consultation in Municipalities requires the municipalities to publish project proposals on their official websites and on the Public Consultation Platform at the central level. Each municipality should have a unit/officer for public communication responsible for co-ordinating the public consultation process.

As per the Administrative Instruction on Minimum Standards of Public Consultation in Municipalities, the municipality must hold public consultations for all local policy documents and by-laws. It also sets out the forms and techniques of public consultation, which should include public consultative meetings, written and electronic public consultation, publication on the municipal website and relevant platforms, and other forms of public consultation like conferences, interviews, consultations with certain group of interests, opinion surveys, panels with citizens, stands on the streets, meetings with councils of villages, neighbourhoods and urban settlements. This Administrative Instruction, which works as a guideline, also regulates the standards, stages and deadlines of public consultations.


Good practices

The Municipality of Kamenica, due to the COVID-19 related precautionary measures, has decided to hold public consultations online. In November 2020, the Municipal Commission for Harmonisation of the Municipal Regulation had completed a Draft Regulation for which it is necessary to hold a public consultation. The Mayor issued the decision that this public consultation will be held online and open for all citizens of the municipality. The decision also stated that citizens can address their comments and ideas on a written form, thereby not limiting them to only join the online meeting.

Public petitions

Public petitions enable citizens to raise issues with public authorities. The number of signatures collected can indicate the level of support for the issues raised. They aim either to raise the profile of the issue or to demand that specific actions be taken. Petitions are often inspired by civil society activity, but they are increasingly submitted through official, often online, platforms whereby petitions with a defined number of signatures will receive an official response.

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:


Domestic context

Public petitions are another mechanism that is used to achieve citizen participation. The right to petition must be guaranteed and included within the legal framework for the public to be able to propose the adoption, amendment or repeal of any act of their concern. Fortunately, the right to petition is well regulated in Kosovo*. The Law on Local Self Government and the Administrative Instruction on Transparency in Municipalities foresee and regulate this right, allowing the citizens of Kosovo* to address their municipalities whenever they have a request or concern.


Legislation

The Law on Local Self Government regulates the right to petition. According to Article 69, “any person or organisation with an interest in the municipality shall have the right to present a petition to the Municipal Assembly about any matter relating to the responsibilities and powers of the municipality”. Those petitions should be reviewed by the Municipal Assembly in accordance with its statute and rules of procedure.


Guidelines

The Administrative Instruction on Transparency in Municipalities regulates the right to petition in more details. Article 9 allows citizens to file a petition for any issue that the municipality is responsible for. These petitions should be addressed to the Municipal Assembly. Citizens have the right to address an unlimited number of petitions to the Municipal Assembly on issues related to the regulation of the city, the maintenance of city order and infrastructure, urbanisation of the city and village, the maintenance of the living environment, the implementation of self-governance and any other issue important for the life of the local population. The Municipal Assembly should review petitions within the legal deadline of 30 days.


Good practices

The Islamic Community of Kosovo* (BIK) has requested the construction of a large mosque in the centre of Pristina for years. After many negotiations that have lasted several years, the Municipality of Pristina and BIK agreed that the mosque be built in the Dardania neighbourhood and in 2012 the first construction works of the mosque began. In 2017, an online petition was launched by an informal group of citizens to oppose the construction of a new mosque in the Municipality of Pristina. They have asked the citizens to support them. According to petitioners the planned mosque was not in harmony with the buildings of the area as a whole and they have asked not to allow the construction of the mosque in the proposed form. However, this petition was not successful and the construction and building process of the mosque started in 2020.

Local referenda

Local referenda, which are widespread in Council of Europe member States, provide a mechanism for local authorities to sound out the citizens’ will on concrete issues that directly affect their everyday lives or for citizens to propose an initiative that they would like to see implemented, or even to block a planned decision.

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

The right to referendum is regulated by the Constitution of Kosovo*, which states that a referendum should be announced and held in compliance with the applicable law. However, the Assembly of Kosovo* has never issued a law that would regulate specifically the process of holding a referendum. The Law on Local Self-Government includes referendum as a mechanism for citizen participation and direct democracy. Due to the fact that there is no Law on Referendums, local referendum or any form of referendums cannot be held in Kosovo* right now.


Legislation

Local referendums are regulated by the Law on Local Self-Government. Article 71 sets out that the citizens of the Municipality may request that a regulation adopted by the Municipal Assembly be submitted to a referendum. The request should be submitted to the Chairperson of the Municipal Assembly within 30 days from the date of adoption of the regulation and must be signed by 10% of the registered voters of the municipality.


Guidelines

Currently, there is not one specific guideline approved which regulates local referendums. In cases of local referendums, the Municipality will decide on the referendum based on Article 71 of the Law on Local Self-Government.


Good practices

Due to the lack of the Law on Referendum, there have been no cases or good practice regarding this issue.

Corruption Risks

In the absence of ethics and public accountability, corruption and malpractice are allowed to thrive, which undermines the foundations of a peaceful, prosperous and just society.

Corruption is a major challenge to democracy and the rule of law. It results in decisions and resource allocation that do not reflect the interests of the public and concentrates political power in the hands of the few. It in turn causes political leaders and institutions to lose legitimacy and public trust, which reduces their ability to govern.

Corruption poses a great threat to sustainable development, increasing poverty and inequality. Consequently, strengthening local self-government and their active participation in the fight against corruption is one of the essential preconditions for democratic development. Corruption at the local level is a specific phenomenon and requires a specific approach tailored to municipalities.

Corruption also causes local and regional authorities to be inefficient and ineffective in exercising their duties. It results in decisions being made not on the basis of what is in the interests of society at large, but what is in the self-interest of decision-makers and their associates. It leads to public money being misspent, with contracts being awarded to inferior providers and budgets being misallocated. At its worst, it enables public officials to misappropriate money and resources, using their position to get rich to the cost of those they have a duty to serve.

One of the major challenges for societies worldwide is the development of accountable and transparent systems that provide effective public services. Because of their proximity to the public, local governments are well positioned to deal with this challenge and to fight and prevent corruption at local level.

Under the current trend of decentralisation, local authorities are given not only resources, but also the discretionary power to use those resources. Thus, local governments have the potential to either reduce corruption and improve public services at the local level or, conversely, increase corruption and worsen the quality of service delivery.

Corruption can also result in public officials being appointed on the basis of favouritism rather than merit, meaning that local and regional authorities do not have access to the brightest and best talent. This in turn creates a fertile environment for further corruption and reduces even more the efficiency and effectiveness of the administration.

Inefficient and ineffective organisations, staffed by individuals who gained their positions on the basis of criteria other than merit, result in poor-quality public services and infrastructure, thereby eroding public trust and the legitimacy of public institutions. More importantly, however, they result in significant human costs, including poverty, deaths, illness, and restricted life chances.

Finally, corruption harms economic development. It leads to public money being directed to uncompetitive businesses, rather than those that offer more innovative or cheaper products and services. Uncompetitive markets, coupled with the negative impact of corruption on the quality of local public services and infrastructure, means that businesses do not have a solid foundation (of staff, security, investment, etc.) on which to build. In the end, this may cause private and international investors to avoid investing in an area.



General Domestic Context

In Kosovo*, for many years the fight against corruption has been listed among the top priorities of both the domestic institutions and assistance programmes provided by various international organisations. However, the strong commitment towards combating corruption through the adoption of a number of laws, regulations and strategies have had limited impact in fighting this phenomenon.

Concrete results in the fight against corruption is only a few of the preconditions reiterated in the Kosovo* 2020 Report of the European Commission. The Corruption Perception Index 2020 published by Transparency International shows that Kosovo*, for the second year in a row, has lowered its score and is now ranked at 104 with 36 points (in 2017 its score was 39 while in 2018 it lost two points and in 2019 its score was 36 as well). With the actual score, Kosovo* lags behind the global average of 43, let alone the European average score of 66. This drop in ranking is mainly attributed to the weak rule of law institutions and the level of impunity in corruption cases. The Global Corruption Barometer (GCB) also reports that two-thirds of citizens rank corruption as one of the three biggest problems in Kosovo*.

The number of corruption-related cases brought to justice in Kosovo* is relatively small, while the grand corruption cases that come to a final verdict are scarce. Judges blame prosecutors for poor investigation and weak indictments. Reports from EU Rule of Law Mission (EULEX) and civil society organisations (Kosovo Law Institute, the Balkan Investigative Reporting Network and Group for Legal and Political Studies) reiterate the low profile of defendants in corruption cases in Kosovo*, frequent changes of prosecutors and judges, unclear sentencing policies, recurrent court session adjournments and prolonged proceedings that may lead to statutory limitations. Since the establishment of special departments for dealing with corruption and organised crime in July 2019, the Special Prosecution of Kosovo* has not filed a single indictment against any high-profile individual. The European Commission is also restating that “Kosovo*’s judicial system is at an early stage of preparation” and that “corruption is widespread and remains an issue of serious concern. There is a need for strong political will to effectively address corruption issues, as well as a robust criminal justice response to high-level corruption.” However, it recognises some progress with the new system for the disciplinary liability of judges and prosecutors, and progress in the rollout of an electronic case management system and central criminal record registry.

The Anti-Corruption Strategy and Action Plan 2018-2022, drafted by the Anti-Corruption Agency (the core administrative institution responsible for preventing corruption in Kosovo*), was finally adopted by the government in May 2019 but failed to gain the support of the Assembly of Kosovo* due to a perpetual political crisis. The Action Plan aims at conducting a follow-up on previous similar strategies dating back to 2004 by sustainably reducing corruption, strengthening institutional integrity, promoting good governance and properly implementing measures enlisted in the Action Plan. More specifically, the Anti-Corruption Strategy and its Action Plan include measures to combat the illegal financing of political parties and terrorism, the informal economy, money laundering and financial crimes.

In November of 2020, the Anti-Corruption Agency has finalized the Anti-Corruption Strategy 2021-2023. Several local and international reports on corruption in Kosovo* have been taken into account during the drafting process of this strategy. Based on the research done, this strategy is divided into four sectors, which are considered sectors with problems and major challenges in the fight against corruption. These four sectors are: Political Sector, State Administration and Local Governance, Law Enforcement and Judiciary and Public Procurement and Public Finance Management. The main objectives of this Strategy are to develop a “zero tolerance” approach against corruption, building integrity, responsibility and transparency in the work of public administration bodies, strengthening the citizens’ trust on public institutions, improving legislation and strengthening institutional capacities for prevention and fight against corruption as well as raising public awareness and education in the anti-corruption area.

Bribery

Bribery is the promise, offer, acceptance or solicitation of a personal advantage (e.g. gift, loan, reward, favour, etc.) in exchange for an unethical or illegal action. Bribery results in decisions not being taken in the public interest, which reduces public trust in institutions and leads to poor public services.

International standards

The following international conventions and standards relate to bribery:


Domestic context

Bribery remains one of the most frequent forms of corruption in Kosovo*. According to Transparency International, the bribery rate in Kosovo* is at 10%. Bribery remains widespread in almost all areas of the public sector, thus undermining the proper functioning of public institutions and affecting the vital interests of citizens of Kosovo*. Citizens are continuously exposed to situations where they have to pay a bribe to get a good quality service. Usually bribes are paid in cash, but other forms of bribery are frequently used as well, such as gifts. In addition to its spread in the public sector, bribery is also found in the private sector, especially in the business sector. Most businesses that are in direct or indirect contact with a public official have been asked or have offered to pay a bribe in order to get a service. The rate of bribery among those businesses which had contacts with public officials is 3.2%.


Legislation

In Kosovo*, bribery as a form of corruption is regulated and sanctioned with the Criminal Code of Kosovo*. It recognises corruption in the private sector and the public sector. Differences between bribery in these two sectors lie in the person to whom the bribe is offered or accepted from, and in the punishment that is imposed. In both cases, the Criminal Code penalises both active and passive bribery.

In the public sector active bribery happens when someone “promises, offers or gives, directly or indirectly, any undue gift or advantage to an official person, for himself or herself or for another person, so that the official person acts or refrains from acting in accordance with his or her official duties or in violation of his or her official duties”. Whereas passive bribery happens when an “official person requests or receives, directly or indirectly, any undue gift or advantage, for himself, herself or for another person, or accepts an offer or promise of such gift or advantage, so that the official person acts or refrains from acting in accordance with his or her official duties or in violation of his or her official duties”.  

According to the Criminal Code, active bribery in the private sector is punished by a fine and imprisonment of 6 months to 8 years and passive bribery is punished by a fine and imprisonment of 1 to 15 years (Article 421 and 422). In the private sector, both active and passive bribery is punished also by a fine, imprisonment of 6 months to 5 years and the gift or advantage gained will be confiscated (Article 309 and 310).


Case Law

In September 2020, the Kosovo* Police arrested the Construction Inspector of the Municipality of Pristina for committing the criminal offence of “taking a bribe”. He was accused of requesting a €12 000 bribe from the owner of a construction company in order to issue a permit to continue construction work. The accused pleaded guilty to bribery and the Basic Court of Pristina sentenced the accused to 1 year in prison and a fine of €3 000.

Conflict of interest

A conflict of interest is where an individual is in a position to derive personal benefits from the actions or decisions they take in an official capacity. Conflicts of interest – either if they are actual, perceived or potential – result in decisions that are, or are considered to be, unfair and self-interested. This reduces public trust in institutions and results in worse outcomes for the public.

International standards


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

 


Domestic context

Despite the fact that Kosovo* has a clear legal framework to combat conflict of interest, this phenomenon continues to be present in public authorities. Conflict of interest is punished by the Criminal Code of Kosovo* as a criminal offence and the Law on Prevention of Conflict of Interest in Discharge of a Public Function for cases that do not constitute a criminal offence.

Kosovo*'s legal framework includes other laws aimed at combatting corruption, such as: Law on the Prevention of Money Laundering, Law on the Protection of Whistle-blowers, Law on Prevention of Conflicts of Interest in Discharge of a Public Function, and Law of Extended Powers on Confiscation of Asset. In addition to laws, Kosovo* has adopted strategic documents in order to strengthen the fight against corruption. Among them are: National Strategy for Development 2016-2021, State Strategy against Corruption and Action Plan 2018-2022, Strategic Plan of the National Audit Office 2018-2021 and Anti-Corruption Strategy 2021-2023.

The Anti-Corruption Agency has been operating in Kosovo* since 2010. This agency was established by the Law on Anti-Corruption Agency, which regulates its organisation and functioning. The Agency has competencies related to reporting, detection and investigation corruption. The Agency conducts a preliminary investigation procedure in cases of suspected corruption in the performance of official duties or based on information received from natural and legal persons. One of its main responsibilities is to supervise and prevent cases of conflict of interest. In 2020, the Anti-Corruption Agency handled more than 160 cases of conflict of interest,  a number slightly lower than the year before (167 cases in 2019). Out of 160 cases, 27 of them were cases reported in the local government.


Legislation

In Kosovo*, conflict of interest as a corruptive phenomenon is regulated by the Criminal Code and more specifically by the Law on Prevention of Conflict of Interest in Discharge of a Public Function.

The Criminal Code regulates the situation when a conflict of interest causes a criminal offence. According to this Code, a conflict of interest is defined as the situation in which "an official person participates personally in any official matter in which he or she, knew or reasonably should have known, that he or she, a member of his or her family, or any related legal person, has a financial interest”. Based on the Code, conflict of interest is punished by a fine and imprisonment up to 3 years.

Conflict of interest is regulated in more detail by the Law on Prevention of Conflict of Interest in Discharge of a Public Function. The Law defines conflict of interest as “the situation in which, because of the circumstances, an official has a private interest which influences, might influence or seems to influence the impartial and objective performance of official duties”. This Law regulates conflict of interest as a form of corruption in cases where it does not constitute a criminal offence. The Law determines the principles, rules and procedures regarding the permitted and prohibited behaviour of officials during the performance of public duty. It also sets out the punitive measures in cases where the principles and provisions of this Law are not respected.

Article 23 to the Law on Prevention of Conflict of Interest regulates that any violation of those obligations that does not constitute a criminal offence is considered as a misdemeanour, punishable with a fine from €600 up to €15 000. Besides the fine, protective measures can be taken such as the prohibition of exercise of public functions for a period of 6 months to 2 years.

To facilitate the fight against conflict of interest in Kosovo*, the Council of Europe PECK 2 published a toolkit on Managing Conflict of Interest (2019). This toolkit was designed to assist officials and public institutions in recognizing the conflict of interest and complying with requirements of the Law on Prevention of Conflict of Interest in Discharge of a Public Function.


Case Law

In July 2020, the University of Pristina “Hasan Prishtina” opened a call for applications for the position of Rector of the University. The Rector of the University is elected by the Steering Council of the University of Pristina. During this process, the Professional Commission verifies whether the candidates running for the position of rector meet the required conditions. The Commission eliminated one of the candidates running for this position due to the fact that he used to work as a member of the University’s Steering Council. The candidate left that position before running for the position of rector. The Commission emphasised that candidate’s running and potential election as rector would violate the provisions of the Law on Prevention of Conflict of Interest in Discharge of a Public Function. The Steering Council of the University of Pristina sent the case to the Anti-Corruption Agency for evaluation and opinion. The Anti-Corruption Agency decided that this candidate should be eliminated..

Embezzlement

Embezzlement is the illegal appropriation of money, goods or other resources by an official to whom they have been entrusted. This results in the loss of public money, which reduces the capacity of authorities to act in the interests of the public, resulting in worse services and outcomes for people. It also undermines public trust in government.

International standards

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


Domestic context

In addition to its negative impact on the implementation of national and municipal budget, embezzlement can also have grave consequences for the business sector and economic performance and can become a barrier to private and foreign investment, trade and economic development. Private companies may also be affected further by the impact of crime on their operations. This can range from extortion by organised criminal groups, to serious fraud and embezzlement of funds by managers, each of which has the potential to cause serious damage to the business environment in which companies operate and to increase the cost of doing business.


Legislation

Embezzlement is considered a criminal offence and it is regulated by the Criminal Code of Kosovo*. According to Article 418 of the Code “an official person, who intentionally obtains an unlawful material benefit for himself, herself or another person, appropriates property entrusted to him or her because of his or her duty or position shall be punished by a fine and imprisonment of six (6) months to five (5) years.”

In cases when the damages of this offence are greater, the law provides for other sentences of imprisonment. When the loss exceeds €5 000, the offender will be punished by a fine and imprisonment of 1 to 8 years, whereas when the loss exceeds €50 000 the offender will be punished by a fine and imprisonment of 3 to 12 years.


Case Law

The Basic Prosecution Office of the municipality of Mitrovica, in 2019, filed charges against a cashier who was working at the Mitrovica Post. He was accused of embezzling €1 270.68 while he was performing his duty. The defendant pleaded guilty to the criminal offence. The Court of Mitrovica sentenced the defendant to 6 months in prison and a fine of € 500.

Another example is the sanction of a Kosovo* member of parliament. He was supposed to start his sentence on 9 March 2020, but he asked to postpone due to health issues. The court postponed it twice for four months. Following the Appeals Court’s final verdict on 1 July, he should have begun serving his sentence but failed to report to a detention centre. In August, an arrest warrant against him was issued. He gave himself up on September 29 and started to serve his sentence on 1 October.

Fraud

Fraud is the use of deceit in order to gain an unfair or illegal advantage. Fraud erodes public trust in government and reduces the capacity of government to act. It often results in the loss of public money, which harms public services and the ability of governments to address the public's needs and aspirations.

International standards

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


Domestic context

In Kosovo*, fraud is part of the group of official corruption offences and criminal offences against official duty. Fraud in public office, like other forms of corruption, continues to be an obstacle to Kosovo*'s institutional and sustainable development. Fraud in public institutions and officials affects the loss of public money, distortion of public expenditures and may prevent foreign investment. All these actions negatively affect the effectiveness and efficiency of government actions. In most cases, fraud is committed in conjunction with other offences such as embezzlement and abuse of official position. Cases of fraud are found in those who hold important public positions such as mayors or public officials. Despite its spread, according to the 2016 Public Pulse survey on Corruption, fraud remains as one of the least common forms of proven corruption (14%) by citizens.


Legislation

Fraud is punishable under the Criminal Code of Kosovo*. According to Article 323, fraud is defined as the presentation of false facts, concealment of facts or the use of other fraudulent methods for the purpose of unlawful gain or material damage to another. A person who commits fraud will be punished by a fine and imprisonment of 3 months to 5 years. This article regulates the situation when the object of fraud is to obtain an unlawful benefit from public funds or a public institution. In this case, the offender will be punished by a fine and imprisonment of 2 to 8 years.

The Criminal Code regulates fraud in office as a form of criminal offence. According to Article 419, a public official commits fraud when s/he obtains material benefits for himself/herself or someone else, by creating, using or presenting a false statement of an account. A fraud also happens when a public official deceives an authorized person into making an unlawful disbursement of money, transfer of property or other rights. The Criminal Code punishes fraud with a fine and imprisonment of 6 months to 5 years.


Case Law

In 2017, the Kosovo* Police arrested a former Director of Budget and Finance in the Office of the Prime Minister. He was arrested on the suspicion of committing the criminal offence of fraud. According to the Prosecution’s indictment, the accused met several times with the injured party E.M., who had been sentenced to three years imprisonment by the Court of Appeals of Kosovo*. The accused promised the injured party that, because of his position, he can influence the Court of Appeals to abolish his sentence. In order to get his sentence abolished, the accused asked for €10 000. After the injured party gave him the money that he asked for, the Court of Appeals did not abolish the sentence. According to the injured party, after he realised that he had been deceived, he asked for his money to be returned to him, but the accused did not return it and he even asked for additional €10 000. The injured party informed the Police of the fraud and co-operated with them to get the accused arrested. Following his arrest and detention, the Office of the Prime Minister suspended the accused pending a final court decision. In 2019, he was sentenced to 1 year in prison and a fine of €5 000.

Nepotism

Nepotism is the exploitation of an official position to unfairly benefit a family member or friend (e.g. through giving a job or favour). Nepotism, and other forms of favouritism, results in local and regional authorities not having access to the brightest and best talent. This in turn creates a fertile environment for further corruption and reduces the efficiency and effectiveness of the administration.

 

International standards

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


Domestic context

One of the main concerns of the citizens of Kosovo* continues to be nepotism. Most citizens have been victims or witnesses of nepotism, especially during the employment process. Opinion polls done by Public Pulse XIX, show that 21.9% of respondents consider that employment in the public sector is merit-based while 78.1% consider that employment in the public sector is not based on merit. It also shows that the respondents consider the following main factors to gain employment in the public sector: party allegiance 23.3%, family connections 23.2%, bribe 20.3%, education 11.2%, friends 8.9% and to a lesser extent vocational training 6.6%, professional experience 4.1% and appearance 2.1%.  As a result, we find unprofessional employment of people who do not meet the necessary criteria for that position. This ongoing problem has shaken citizens' trust in the work of government bodies.


Legislation

Currently, Kosovo* does not have a specific law that regulates or prohibits nepotism. Nevertheless, Article 414 of the Criminal Code is used to prosecute and punish nepotism as a form of corruption. This article punishes an official person in cases when s/he takes advantage of his/her position or authority to acquire any benefit for himself/herself or another person, to cause damage to another person or to seriously violate the rights of another person. Thus, this article is used in those cases when a public official abuses his or her position by hiring a family member or friend, offering an employment that exceeds his/her competencies and violates the rights of other applicants.

Article 414 is also used in conjunction with Article 219 of the Criminal Code. This article establishes the violation of employment and unemployment rights as a criminal offence. Based on this article “anyone who denies or restricts to other persons the right to employment under the same conditions, as defined by law, shall be punished by a fine or by imprisonment of up to two (2) years”. Since nepotism results in the violation of a person’s right to employment on an equal footing with others, Article 219 is also used to detect and punish this form of corruption.


Case Law

In 2018, the Anti-Corruption Agency filed a criminal complaint with the Basic Court in Peja, against the Mayor of Klina. He was accused of nepotism for employing his daughter at the Family Medicine Centre in Klina. Before starting the recruitment process, the Mayor formed a Commission to carry out the procedures for establishing the recruitment process for this position. According to the prosecution, the Mayor knew beforehand that his daughter applied for that position. Then, the Commission elected the Mayor’s daughter for that position. In 2020, the Basic Court of Peja found the Mayor of Klina guilty and fined him €4 000 and banned him from holding public office for two years.

Misuse of administrative resources in election campaigns

The misuse of administrative resources[i] during the electoral processes involves unlawful or abusive behaviour on the part of politicians and civil servants, who use human, financial, material, in natura and other immaterial resources to influence the outcome of elections, and thus undermine the fairness of the election itself.

[i] For the purpose of this etool, «administrative resources are human, financial, material, “in natura” and other immaterial resources enjoyed by both incumbents and civil servants in elections, deriving from their control over public sector staff, finances and allocations, access to public facilities as well as resources enjoyed in the form of prestige or public presence that stem from their position as elected or public officers and which may turn into political endorsements or other forms of support», as defined in: “Report on the Misuse of Administrative Resources during Electoral Processes”, Study No. 585/2010, European Commission for Democracy through Law (Venice Commission), Council of Europe, 16 December 2013, Strasbourg. Available here

International standards

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

Extortion

Extortion is the use of coercion to obtain money, goods, services or some other advantage from an individual or institution. Beyond the damage it does to the victim, extortion reduces public trust in government and can discourage business growth and investment in the area.

International standards

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

Clientelism

Clientelism is the promise and acceptance of a personal benefit (e.g. gift, loan, reward, favour, job, etc.) in exchange for political support. It is often based on an unequal relationship between a patron (e.g. political leader) and client (e.g. voter). Clientelism results in decisions that reflect the special interests of a few, rather than the wider public interest, leading to unfair and unjust outcomes.

International standards

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

Patronage

Patronage is the use of an official position to appoint a person in a public office based on favouritism, often in exchange of political support. It can be closely linked to the concepts of clientelism, cronyism and nepotism. Patronage results in decisions being made not on the basis of what is in the interests of society at large, but what is in the self-interests of the decision maker and their associates. It violates the boundaries of legitimate political influence and the principles of merit, and leads to public money being misspent.

International standards

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


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: