EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
LAW
ON CONFLICT OF
INTEREST
IN GOVERNMENTAL
INSTITUTIONS
OF BOSNIA AND
HERZEGOVINA
LAW ON
CONFLICT OF INTEREST
IN
GOVERNMENTAL INSTITUTIONS OF BOSNIA AND
HERZEGOVINA
Chapter
1 - Conflict of Interest
Article
1 - General Provision
1.
This Law shall govern special
obligations of elected officials, executive officeholders, and advisors in the institutions
of government of BiH in exercising their duties.
2.
Any elected official, executive
officeholder and advisors exercising public duties must conduct in a
responsible and conscientious manner, they must not
compromise the confidence and trust by citizens, and must respect legal and
other rules governing the rights, duties and responsibilities in the exercise
of public duties.
3.
In exercising public duties, elected
officials, executive officeholders and advisors must apply the ethics of the
profession and duties they are performing.
4.
In exercising public duties, elected
officials, executive officeholders and advisors must not prefer their private
interest at the expense of the public interest.
5.
A conflict of interest is created in
the event that an elected official, executive officeholder and advisor has a
private interest that affects or may affect the legality, transparency,
objectivity and impartiality as to the exercise of the public duty.
Article
2 - Code of Conduct
1.
In the exercise of public duties,
elected officials, executive officeholders and advisors must act legally,
effectively, impartially, honestly and they must apply the principles of
responsibility, integrity, due-diligence, transparency and credibility.
2.
Elected officials, executive
officeholders and advisors shall be held personally responsible for their
conduct in the exercise of their appointed or elected public office and they
shall be politically accountable to the authority or citizens who have appointed
or elected them.
3.
Elected officials, executive
officeholders and advisors must not use the public duty for a personal gain of
a person related to them. They must not be in any relationship of dependence in
respect of persons who might influence their impartiality.
4.
In their position as public persons,
all elected officials, executive officeholders and advisors must act in the
interest of citizens.
5.
In the exercise of their duty elected
officials, executive officeholders and advisors shall be bound to use the
property, instruments of labor and financial resources entrusted to them for
specified purposes only for the intended purpose and in an efficient manner.
6.
In the exercise of public duty elected
officials, executive officeholders and advisors shall receive salary and
allowances for the duty they exercise. Unless explicitly provided in this Law,
elected officials, executive officeholders and advisors shall be prohibited to
receive any other remuneration.
Article
3 –Definitions
1.
For purpose of this law on conflict of
interest:
a)
An
authorized person means a person that
is authorized to represent an enterprise by the Founding Charter or St
b)
Close relative means
a marital or extramarital partner of the official concerned, child, mother,
father, adoptive parent, adopted child, his/her brother, sister as well as
parents and child of a marital partner (step-son/step-daughter).
c)
Elected
officials include:
-
Members of the
Presidency of Bosnia
and Herzegovina;
-
Delegates and Members of the
Parliamentary Assembly of Bosnia and Herzegovina
(hereinafter: BiH);
-
Secretaries of both Houses of the
Parliamentary Assembly of BiH and Secretaries of the Common Service of the
Parliamentary Assembly of BiH “.
d)
Directors, Deputy Directors and Assistant
Directors of State Administration authorities, agencies and directorates,
institutes, appointed by the Council of Ministers of BiH or the Parliamentary
Assembly of BiH or the Presidency of BiH who are not covered by the Law on
Civil Service in the Institutions of Bosnia and Herzegovina”.
e)
Executive
officeholders include Ministers and Deputy Ministers in the Council of Ministers of BIH;
f)
Advisors
include the advisors to the elected officials and to executive officeholders as
defined under the Law on Civil Service in Governmental Institutions of BiH;
g)
The
Election Commission means the Election
Commission of Bosnia and Herzegovina.
h)
Financial
Interest means:
1.
Any interest that entitles an elected
official, executive officeholder or advisor to receive money in the amount of
more than one thousand Convertible Marks (1,000 KM) per year, and;
2.
Any ownership interest held by an
elected official, executive officeholder or advisor which represents a value of
at least ten thousand Convertible Marks (10,000 KM) of an enterprise,
partnership, limited partnership, Joint Stock company or company with limited
liability;
i)
Gift means any payment, entertainment, service, or item of value given
directly to the recipient without compensation or the expectation of
compensation. Gifts received from family members and gifts valued at less than
a hundred Convertible Marks (100 KM) shall not be covered by this legislation;
j)
Private enterprise
means any legal enterprise that is not a public enterprise as defined below;
k)
Public enterprise
means an enterprise which has more than 25% of its capital
owned by the government authorities and/or has more than 25% of its
annual business activities financed from the budgets of the governments of Bosnia
and Herzegovina,
the Federation of Bosnia and Herzegovina,
the Republika Srpska, the Brcko District, any canton, municipality or city.
Article
4 – Incompatibilities
1.
Serving on the management board,
steering board, supervisory board, executive board, or acting in the capacity
of an authorised person of a public enterprise is incompatible with serving the
public as an elected official, an executive officeholder or an advisor.
2.
Serving on the management board,
steering board, supervisory board, directorate, or duty of a Director of an
Agency for Privatisation shall be incompatible with serving the public as an
elected official, an executive officeholder or an advisor. “
3.
Involvement in a private enterprise
under circumstances that create a conflict of interest is incompatible with
serving the public as an elected official, an executive officeholder or an
advisor.
4.
The involvement of close relatives of
elected officials, executive officeholders and advisors in circumstances set
out in paragraphs 1, 2 and 3 also creates situations of conflict of interest
for the official, officeholder or advisor.
5.
The provisions of Article 4 in
reference to Item 1 of this Article shall not refer to the category of close
relatives: brother and sister in case of public companies at cantonal and municipal
level of authorities.”
Article
5 - Public Enterprises and Privatisation Agencies
1.
Elected officials, executive
officeholders and advisors shall not serve on the management board, steering
board, supervisory board, executive board, or act in the capacity of an
authorised person for a public enterprise. This provision shall apply six months after the elected officials, the executive officeholders and advisors leave office.
2.
Elected officials, executive
officeholders and advisors shall not serve on executive board, management board
or supervisory board nor on directorate, nor as Directors
of a privatisation agency This provision shall apply six months after the
elected officials, the executive officeholders and advisors leave office.
3.
Elected officials, executive
officeholders and advisors shall resign from any such incompatible positions
before assuming the duties of their office.
Article
6 - Government Investment in Private Enterprise
1.
Elected officials, executive
officeholders and advisors shall not serve on the management board, steering
board, supervisory board, executive board, or act in the capacity of an
authorised person for any private enterprise in which the governmental body
where the official, officeholder or advisor serves has invested capital in the
four (4) years prior to the official, executive officeholder or advisor taking
office.
2.
Elected officials, executive
officeholders and advisors shall not serve on the management board, steering
board, supervisory board, executive board, or act in the capacity of an
authorised person for any private enterprise that contracts, or otherwise does
business, with government authorities at any level. This provision shall only apply
to private enterprises that are under contract or doing business with
government authorities while the elected official, executive officeholder or
advisor holds office and only when the value of the contract or the business
with government exceeds five thousand Convertible Marks (5,000 KM) per year.
Article
7 - Prohibition on Acting in Conflict of Interest
1.
Elected officials shall not vote on any
matter that directly affects a private enterprise in which the official, or his
or her close relatives, has a financial interest. Officials in such situations
shall abstain from voting and shall announce, in an open session, the reasons
for their abstention.
2.
Executive officeholders and advisors
shall not take any official action that would directly affect a private
enterprise in which the executive officeholder or the advisor, or his or her
close family member has a financial interest. Executive officeholders and
advisors in such situations shall refer the decision to another competent
authority for action and shall state the reason for the referral in writing.
3.
If an elected official, executive
officeholder or advisor violates this article, the vote or decision of the
official or officeholder shall be deemed null and void.
Article
8 - Personal Service Contracts
1.
Elected officials,
executive officeholders and advisors shall not enter into a contract with any
public enterprise to provide personal services.
2.
Elected officials,
executive officeholders and advisors shall not enter into a contract to provide
personal services with any private enterprise that contracts,
or otherwise does business, with government at any level. This provision shall
only apply to private enterprises that are under contract or doing business
with government authorities while the elected official, executive officeholder
or advisor holds office and only when the value of the contract or the business
with government exceeds five thousand (5,000) Convertible Marks per year.
3.
If an elected
official, executive officeholder or advisor violates this article, the contract
of the official or officeholder shall be deemed null and void.
Article
9 - Prohibition on Acting
Unless explicitly provided in the Law, the
officials shall be prohibited from:
a)
receiving or demanding gifts or any
other gain or promise of a gift or of any other benefit for the purpose of the
exercise of public duties;
b)
receiving an additional compensation
for the tasks performed in the exercise of public duties;
c)
demanding, accepting or receiving a
value or service in order to vote on any matter, or to influence a decision of
a body or a person;
d)
promising an employment or another
right in exchange for a gift or a promise of a gift;
e)
prefering persons on the ground of
party or another affiliation or origin, personal or family relations;
f)
declining an inspection of their
financial operations;
g)
influencing the award of business or
procurements by the State, in order to obtain a property or non-property
related benefit for himself or another person;
h)
using privileged information on the
activities of governmental bodies for personal gain or the gain of a closely
related person;
i)
using in any manner their position in
order to influence a decision of the legislative, executive or judicial power
thereby - obtaining a personal gain or a gain of a closely related person, a
privilege or a right, - closing a legal
transaction or,- otherwise favoring his/her personal interests or interests of
another closely related person.
Article
10 – Accepting Gifts
1.
A gift, in terms of
this Law, shall be considered to be the gift related to the performance of a
duty which includes: money, objects, rights, service without remuneration and
any other benefit given or promised to the official, such as catering service,
overnight stay, release of debt or obligation, travel expenses or similar
service, ticket, piece of art, souvenir, insurance or similar service, medical
or similar service for which the official personally did not pay a market
price.
2.
Elected officials,
executive officeholders and advisors may keep a gift in the amount not
exceeding KM 100 and they do not have to report it.
3.
Paragraph 2 of this
Article shall also apply to several gifts given by the same donor in the course
of one year.
4.
Elected officials,
executive officeholders and advisors shall not be allowed to keep the gift
exceeding the value referred to in Paragraph 2 of this Article, they shall be
bound to report it to the Election Commission and it shall become the property
of BiH.
5.
Elected officials,
executive officeholders and advisors shall not be allowed to accept money,
check, or any other securities regardless of the amount and if they get the
above mentioned they shall be bound to report them and they shall become the
property of BiH.
6.
If there is a doubt
in respect to the value of the gift the elected official, executive officeholder
and advisor shall be bound to require the bill from the donor.
7.
The value of the gift
shall be its market value.
8.
Acceptance of gifts
in terms of paragraphs 1 through 8 of this Article shall also refer to the
persons who would accept the gift on behalf of the official, provided that such
person is aware of the acceptance of the gift.
Article
11 - Officials Exercising Other Tasks
1.
In the exercise of
public duty, except for a duty in the political party, elected officials,
executive officeholders and advisors shall not perform other executive duty. Notwithstanding
the previous provisions elected
officials, executive officeholders and advisors
may perform executive duty in foundations and associations which are not funded
from the budget at any level of authorities and which are founded pursuant to
the Law on Foundations and Associations.
2.
Elected officials,
executive officeholders and advisors may perform tasks in public educational,
health, scientific, cultural and sport institutions, nongovernmental nonprofit
organizations, foundations and associations which are not funded from the
budget at any level of authorities under the terms stipulated in the entity
Labor Laws and other regulations.
3.
Elected officials and
executive officeholders may not perform tasks of advisors or be in a
contractual relation based on work with public companies or legal and physical
persons who do business with authorities at any level.
Chapter
2 – Disclosure
Article
12 - Personal Financial Disclosure
1.
Elected officials, executive
officeholders and advisors shall file regular financial reports as required by
law and by the Rules and Regulations of the Election Commission.
Article
13 - Disclosure in Contracting
1.
Any public or private enterprise that
submits a bid to provide goods or services for government shall also submit a
written statement together with the bid with a listing of any contributions to
political parties that the enterprise has made within the preceding two years.
The statement shall also list all elected officials, executive officeholders
and advisors who have been employed by, or served on the management board,
steering board, supervisory board, executive board, or acted in the capacity of
an authorised person of the enterprise within the preceding two years.
2.
This article shall only apply to public
or private enterprises when the value of the contract or the business with
government exceeds five thousand (5,000) Convertible Marks per year.
3.
All statements required by this article
shall be public documents that are made readily available to the public and the
media by both the enterprise and the governmental authority that receives the
bid.
Article 14 - Disclosure of Enterprise Information
1.
Any enterprise that
receives one or more investments from a government authority totaling more than
five thousand (5,000) Convertible Marks per year shall file a report listing
the full names, addresses, and contact telephone numbers of the members of the
managing board or steering board of the enterprise and of all authorized
persons in the enterprise.
2.
Such reports shall be
filed with the ministry or agency responsible for financial matters within the
government authority that made the investment, the court where the enterprise
is registered, and with the Election Commission within 10 days following the
vote of the official decision of the enterprise to make investment.
3.
Updated reports shall
be filed within fourteen (14) days of any change in the membership of the
management board, steering board, supervisory board, executive board, or
authorized persons for two years following the last investment made by the government
authority.
4.
All reports required
by this article shall be public documents and shall be made readily available
for inspection and copying by the appropriate ministry or agency responsible
for financial matters, the court, and by the
Election Commission during normal business hours.
Article
15 - Disclosure of Government Authorities Investment
1.
A government authority that makes one
or more investments in an enterprise totalling more than five thousand
Convertible Marks (5,000 KM) per year shall file a statement of such investment
with the Election Commission.
2.
The government authority shall also
publish a copy of the statement of investment in a newspaper with a general
circulation within the territory falling under the jurisdiction of the
government authority. Such publication shall be made within fourteen (14) days
of the investment.
3.
All statements required by this article
shall be public documents and shall be made readily available for inspection
and copying by the government authority and by the
Election Commission during normal business hours.
Article
16 - Disclosure of Annual Enterprise
Reports
1.
Annual Financial
Reports of enterprises filed with the competent tax administration shall also
be filed with the ministry or agency responsible for financial matters within
the government authority that made an investment in the enterprise within the
preceding twelve (12) months.
2.
All reports required
by this article shall be public documents and shall be made readily available
for inspection and copying by the appropriate
ministry or agency responsible for financial matters during normal business
hours.
Chapter
3 – Enforcement
Article
17 – Implementation
1. The
Election Commission shall carry out the following functions under this law:
a)
act
on the basis of this Law to ensure political accountability
and credibility of elected officials, executive officeholders and advisors,
taking account of the need to protect the
integrity of the office held rather than the person holding such office.
b)
issue
instructions, prescribe forms and structure of the Register for the purpose of
applying the provisions of this Law.
c)
adopt Rules of Procedure regulating the Register,
the rules on forms, the implementation rules of handling the procedure and
furnishing of decisions and compiling of reports.
d)
decide
as to whether a certain action or an omission constitutes a violation of
provisions of this Law.
e)
submit
a report on its work to the Presidency of Bosnia
and Herzegovina
each six months, whereas at least annually to the public.
f)
report
to the relevant prosecutor’s office any violation of this law, which might also
constitute a breach of criminal law.
2.
The extra costs incurred by the
Election Commission in the implementation of this Law will be provided from the
state budget.
Article
18 - Procedure before the Election Commission
1.
A procedure before the Election
Commission shall be initiated at the request of the Election Commission or at
the request of the person concerned.
2.
The Election Commission may initiate
the procedure on grounds of reporting done by another person.
3.
The Election Commission shall have the
right to establish the facts by way of conducting its personal investigation or
to obtain facts and evidence through an action of other executive authorities.
All authorities, institutions and courts of Bosnia
and Herzegovina
on all levels are therefore obliged to provide the Election Commission with
legal and other official assistance as requested.
4.
Should there be any doubt
concerning the existence of violation of obligation under this law, the
Election Commission shall notify the concerned person with regard to whom there
are reasonable grounds to suspect that he may have committed a breach of this
Law, requesting a statement regarding the allegations contained in the report.
5.
Should there be any
uncertainty as to the possible existence of a breach under this law, the Election Commission shall provide its opinion at
the request of any person requiring such an opinion.
6. Prior to pronouncing the
sanction, the Election Commission must obtain the statement from the person
affected by the sanction.
Article
19 -Appeals
1.
Appeals against decisions of the
Election Commission may be made to the Administrative Division of the Court of
Bosnia and Herzegovina.
Article
20 – Sanctions
1.
If an elected official, executive
officeholder or advisor is found to have acted in violation of articles 5, 6,
or 8, 11 of this law, he or she
shall be ineligible to stand for any directly or indirectly elected office for
a period of four (4) years following the finding of the violation. In addition,
the official, officeholder or advisor may be fined in the amount of no less
than one thousand Convertible Marks (1.000 KM) and not more than ten thousand
Convertible Marks (10.000 KM).
2.
If an elected official, executive
officeholder or advisor is found to have violated articles 7, 9 and 10, the official or officeholder shall be fined in the
amount of no less than one thousand Convertible Marks (1.000 KM) and not
exceeding ten thousand Convertible Marks (10.000 KM). The official,
officeholder or advisor shall also be bound to return the gift or the
equivalent monetary value of the gift.
3.
If an elected official, executive
officeholder or advisor is found to have been in violation of Articles 5, 6, 8,
9, 10, 11 of this law, he or she may
be declared ineligible for a position in the civil service or for a position of
an advisor for a maximum period of four (4) years following the violation. This
provision shall also apply to the elected official, executive officeholder or
advisor on leave from a position in the civil service. In such case, he or she
shall sit a public competition in order to re-enter the civil service at the
end of the period of ineligibility.
4.
If a close relative of an elected
official, executive officeholder or advisor is found to have been in violation
of article 10, the family member shall be fined in an amount of no less than
one thousand Convertible Marks (1.000 KM) and not exceeding ten thousand
Convertible Marks (10.000 KM). The official, officeholder or advisor may also
be fined in the equal amount if it is determined that he or she had prior knowledge
of the existence of conflict of interest or gift.
5.
Any enterprise found in violation of
Articles 13, 14 or 16 shall be fined in the amount of no less than one thousand
Convertible Marks (1.000 KM) and not exceeding twenty thousand Convertible
Marks (20.000 KM) and shall be ineligible to close a contract with any
government authority or agency for a period up to four (4) years following the
violation.
6.
Fines imposed pursuant to this chapter
shall be paid to the Election Commission.
Article
21 - Statute of Limitation
1. The
procedure for applying sanctions consequent on breaches of this law must be initiated
within four years of the alleged violation.
Chapter
4 – Scope of the Law
Article
22 - Application to Entities and Brcko District
1.
The Entities and Brcko District shall
enact their own laws within sixty (60) days following the entry into force of
this Law.
2.
Until such time as the laws are enacted
in the area of conflict of interest at the level of the Entities and Brcko
District, this Law shall apply.
3.
Provisions of the laws referred to in
paragraph 1 of this Article shall not be in contravention with this Law.
Chapter
5 - Transitional and Final Provisions
Article
23 -Entry into force
1.
This Law shall enter into
force on the day following the announcement of the election results in respect
of the October 2002 elections.
2.
The Law shall be published
in the "Official Gazette of Bosnia and Herzegovina" and in the official gazettes of the Entities and Brcko District.
