After over two years, the regulations concerning the organization and functioning of the Integrity Council (IC), which is the administration (supervision) body of the National Integrity Authority (NIA), haven’t’ been yet finalized and, respectively, applied. According to experts, the process of approving this document is intentionally delayed by members of the Council, including by being absent from meetings, a part of which were declared non-deliberative. The slow pace at which the NIA was institutionalized reduces the potential efficiency in an important pre-electoral and electoral period. At the same time, representatives of the competent authorities say the situation is not unordinary.
Integrity, a value that is rather only declared by authorities
Mariana Kalughin, legal adviser of the Association for Participatory Democracy “ADEPT”, told IPN that the Integrity Council made a mistake by not giving priority to the own regulations. Besides not being fair in terms of the legislative technique, this also affected the entity’s image. It seems that the members of the IC avoid regulating and planning the own activity, preferring more discretion and institutional unpredictability. In such a situation, the authorities that choose members of the Council should examine the performance of the nominated persons. At the moment, the authorities do not seem really interested in this subject.
“Judging by our experience, I think the ensuring of the functionality of the NIA will remain among the recommendations of the development partners for many years ahead. We will see to what extent the authorities will manage to overcome the institutional frustrations and will become convincing in their pro-integrity messages,” stated Mariana Kalughin.
The expert noted that under the legal provisions, the NIA is an independent public authority in relation to other public organizations, legal entities and private individuals. This means the entity should not be subject to any other control except the legal one in individual cases. However, at strategic level, the NIA should be under particular public control that should be exercised by the IC. The legislation provides that namely the IC approves the strategy, plan of action and reports of the NIA. “Regrettably, I’m not sure the Integrity Council, when fulfilling such duties, will always promote the general public interest. The problem resides in the disproportionate composition of the Integrity Council, the legislative, executive and judicial powers being overrepresented compared with civil society. Definitely, the NIA should not be perceived and should not perceive itself as an authority controlled by Parliament,” stated the ADEPT expert.
According to her, in the current legal conditions the control duties on the part of the NIA are carried out exclusively by integrity inspectors. The IC carries out an inspection only if this features the president and vice president if the NIA and also integrity inspectors. Thus, given that the first integrity inspectors were named to posts only this summer, no major results were achieved in the inspection activity. These delays should be assumed by the IC as this wasn’t sufficiently efficient and didn’t manage to launch the activity of the NIA by organizing and holding the contest to fill the posts of president and vice president of the NIA and to also approve the regulations concerning the filling of the post of integrity inspector.
“Evidently, we also reproach the authorities, such as the Government, President and the Superior Council of Magistracy, for the delayed constitution of the Integrity Council. As regards the integrity certificate envisioned by the electoral legislation, the initial norms were so unclear that legislative amendments were needed. Obviously, the approval of the subordinate normative framework that is designed to ensure the implementation of the legal norms also took time. In fact, judging by the way things developed, only one explanation resists – the integrity is a value that is only declared by the authorities rather than really supported and pursued,” stated Mariana Kalughin.
ANI should work constantly, either it is an election campaign or not
Contacted by IPN, deputy chairman of the Parliament’s legal commission for appointments and immunities Anatolie Zagorodnyi said the National Integrity Authority works in accordance with the law adopted by the legislature. The Integrity Council holds meetings. A contest was announced to name integrity inspectors to posts. Activities are performed to verify the statements of persons who are covered by this law and who are to submit statements.
According to the MP, the activity of this institution slowed down because, as far as it is known, the process of choosing particular employees of the institution goes on and the procedure is more difficult as the persons should be upright given that they will examine the property and interest statements of state officials. As to the rest, if the NIA faces particular legislative impediments, Parliament is ready to eliminate them so that the activity of the NIA is intense and efficient.
Anatolie Zagorodnyi noted the integrity certificates are to be issued in correlation with the Public Services Agency. The powers and periods for issuing the certificates were stipulated in the law. If the workload is heavy, the personnel could be extended. The necessary workload will become clearer when the election campaign starts. It is important for the integrity certificates to be objective and justified, in accordance with the law, as regards the persons who will apply, and artificial obstacles to the registration of one candidate or another should not exist. “Either it is an election campaign or not, the authority should work constantly as its mission is to verify statements. The slowdown is related to the employment of inspectors and the conduct of the contest,” stated the MP, adding he considers the IC will manage to approve its functioning regulations.
Some of the IC members were over 20 times absent from meetings
The members of the Integrity Council are named for a five-year term, being chosen by one by the Government, Parliament, the Superior Council of Magistracy, the Superior Council of Prosecutors, the Congress of Local Authorities (CALM) and two are selected by the Ministry of Justice. Since the first constitution meeting of the Integrity Council held on December 30, 2016 and in the course of 2017, the IC had 39 meetings. This year until the second half of November, the IC met for 18 times.
The proceedings of meetings show Victor Micu, IC member proposed by the Superior Council of Magistracy, and Tatiana Pashkcovski, who represents civil society and was suggested by the Ministry of Justice, were absent from meetings for over 20 times. This year, Tatiana Pashkcovski didn’t attend eight consecutive meetings. Sergei Ostaf, who was nominated by Parliament, had six absences, Victoria Eftodi/Oleg Efrim who were named by the Government – 13, Mircea Roșioru, who represents the Superior Council of Prosecutors – eight, Viorel Rusu, who was proposed by the CALM – eight and Dumitru Țîra, who represents civil society and was proposed by the Ministry of Justice – five absences.
The law on the National Integrity Authority provides that the dismissal of the IC members is possible when the member cannot fulfil the duties for a period longer than three consecutive months for health reasons or when this is absent from three consecutive meetings without reason or from any six meetings of the Council in the course of a year. The same law says the meetings are deliberative if they involve five of the seven appointed members. The Council’s decisions are adopted by a majority of votes of the appointed members and are signed by the chair of the meeting. Thus, almost all the members could be dismissed for not attending the meetings of the Integrity Council.
Asked by IPN to comment, IC member Tatiana Pashkcovski answered by email that she will send the answers to the questions, but hasn’t provided responses since November 22, when she confirmed she received the questions. Contacted by IPN on December 11, Tatiana Pashkcovski didn’t answer the phone.
IPN also made an inquiry to the Superior Council of Magistracy president Victor Micu, IC member, asking him to answer a number of questions concerning the Authority’s work and his work as member of the IC, including about his absences from meetings. In his response, Victor Micu said: “The Superior Council of Magistracy is an independent body constituted to organize the judicial system and manage the judiciary so that it cannot provide information about the work of the National Integrity Authority and the Integrity Council...In this connection, we inform you that the National Integrity Authority is the component body responsible for the issue mentioned in your inquiry and you should address it directly to elucidate aspects of its work”.
“There are cases when members are absent from meetings, but this is not of special relevance to the functioning of NIA”
In a response to an inquiry made by IPN, NIA president Rodica Antoci said the IC has seven members who represent state institutions, the Congress of Local Authorities of Moldova and civil society who hold key posts in the institutions that delegated them to work on the Council. “It’s true that there are cases when members are absent from meetings, but this is not of special relevance to the functioning of the NIA,” she stated.
Asked how could it happen that some of the members missed even 20 meetings of the CI, Rodica Antoci said this question should be put to the Integrity Council that can clarify the issue. “I’m convinced that the IC members who hold key posts in the institutions that delegated them to work on the Integrity Council had reasons to be absent from meetings as they were engaged in other activities at their institutions. However, if their absence were unfounded and this is proven, the entities that assigned them can recall them,” she said.
In another development, Rodica Antoci said the National Integrity Authority is a relatively new institution in terms of its foundation, if we do not take into account the fact that it is the lawful successor of the National Integrity Commission. “Consequently, I can assess the activity of the Authority since when I took it over. As a manager, I’m both satisfied and dissatisfied. It is normal to have such feelings when you understand that the responsibilities and expectations of the institution are great. That’s why I can say I’m satisfied that we managed to adopt all the internal documents, to name the integrity inspectors, to work on overdue documents and to ensure the institution’s functionality. The processes were rather difficult as in any other institution and there is nothing unordinary here,” stated Rodica Antoci.
“We worked based on situation and operational and logistic possibilities”
On the other hand, the NIA president admitted that the pace wasn’t the expected one due to objective and less objective reasons. “To say it short, we worked based on the situation and operational and logistic possibilities. We ensured the institution’s functionality despite the experienced bureaucratic blockages and accelerated the processes and I’m convinced we succeeded. If you follow our official website ani.md, you will see that we tried to inform society about all our activities. The people will decide if they were relevant or not. For me and for the whole team, it was daily work in which we put a lot of dedication and soul,” she noted.
As regards the Integrity Council, Rodica Antoci said the NIA ensures secretariat and legal assistance work for the IC. “The Council is a representative body with non-permanent activity. It does not form part of the administration of the NIA and the approval of the regulations on the organization and functioning of the Council is the exclusive prerogative of the IC. So, you should discuss with IC members to see if they face particular blockages or other problems. I think the Authority fully fulfilled its duties. I can tell you that the draft regulations of the IC were examined in a number of meetings of the Council and were even remitted to the Ministry of Justice for appraisal on November 8, 2018. I received the appraisal in two weeks and sent it to the Integrity Council for examination and for making the changes proposed by the Ministry,” said the NIA president.
NIA – IC Ping-Pong
IPN made an inquiry to IC member Sergei Ostaf, asking him about the work of the NIA and IC. In particular, the questions referred to the approval of the regulations on the organization and functioning of the Council, the opinions of experts who say the delay in the approval of the regulations is legal and to the fact that he sent the comments on the draft with delay and the Ministry of Justice’s proposals could not be discussed on time because he couldn’t have examined them. Serhei Ostaf said given that an official request was made to the NIA on November 26, none of the IC members will pronounce until the answer to the letter of November 26 is approved and it is ethical and correct to be so.
NIA, Romania’s experience
Contacted by IPN, anticorruption expert Laura Ștefan, executive director of the nongovernmental organization Expert Forum of Bucharest, said the process of ensuring the functionality of the National Integrity Agency in Romania lasted too. The relevant legal provisions began to be drafted at the start of 2006 and were approved in the middle of 2007, but the Agency started work in 2008. Later, after particular cases, the Constitutional Court in 2010 declared provisions of the law unconstitutional. As a result, a new text of the law was adopted and the Agency started the inspection activity from the beginning. The institution on its website publishes all the interest and property statements and this became something ordinary compared with other countries that still struggle to have the statements published. This way, the NIA does an important job and the people get used to evolutions swiftly, not yet to involutions.
Laura Ștefan said an informatics program is now being designed to ensure the examination of public procurement procedures in real time and to identify eventual conflicts of interests. After these are identified, the program notifies managers of public intuitions of these and they decide whether to remove them or not. “However, there were no resonant cases lately as the people learned to work with the law and tried to understand what is banned and what is allowed, etc.” she stated.
The expert added there also no major cases concerning property statements as those who got impressive property did it in the 1990s and the start of the 2000s, while those featured in the journalistic investigations in Brazil no longer have the property registered in their name. “Another stage will follow and it will be mandatory to declare what you actually own, not only what is registered in your name,” she stated.
“There is no political pressure as legislation is reviewed to reduce the Agency’s powers”
Laura Ștefan said Romania goes through a turbulent stage as regards the relationship between the political factor and the law enforcement agencies, primarily the courts of law and parquets, especially the National Anticorruption Directorate. But all the public institutions show tendencies to become involved in very hot areas and this means self-censorship first of all. On the other hand, the objective reality also leads to a decrease in the cases managed by the NIA and more effort to combat such cases is made.
According to the expert, no political pressure is exerted on the Agency as the legislation is permanently reviewed to reduce the Agency’s powers and to eliminate the consequences of court decisions on conflicts of interest and property statements so as to decriminalize the conflict of interest in a number of ways. “Constant attempts are made to reduce the Agency’s role, but the people see these things less amid more serious aspects, like the amendment of the Penal Code and the Penal Procedure Code, amnesty and pardoning,” she stated.
Integrity certificates are a trap for NIA
As to the issuing of integrity certificates, Laura Ștefan said this power should not belong to the NIA and the Public Services Agency. No one will exhaustively examine the way in which a citizen who wants to apply for a public post behaves. This is an attempt to involve the Agency into an area with a different political connotation. It is not clear how the integrity inspectors will physically mange to examine each candidate and to issue integrity certificates. The integrity institutions are given a lot to do and are then reproached for not fulfilling their tasks or for doing the work badly.
IPN note:
The law on the National Integrity Authority was adopted by Parliament on June 17, 2016 and took effect on August 1 the same year. The body was created by reorganizing the National Integrity Commission.
The Authority’s mission is to ensure integrity in public posts and to prevent corruption by examining the property and personal interests and how the legal regime of conflicts of interest, incompatibilities and restrictions is respected.
To active its goals, the NIA was assisted by the Council of Europe in adjusting the integrity system of Moldova. There was implemented the electronic register of subjects of statements as a component part of the E-integrity Information System. There was introduced the online procedure for submitting property and interest statements for public functionaries. The last documents adopted by European bodies say Moldova should really fight grand corruption to benefit from macro-financial assistance.
Elena Nistor, IPN
