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09 December 2011

CONFLICT OF INTEREST OF SENIOR PUBLIC OFFICIALS SANCTIONED BY LAW

Written by : Esad EJUPI
Thirty (30) days after his/her selection, appointment or engagement to a public function, senior official is obliged to transfer enterprise managing rights to a trusted person, whereas Agency is to be informed in written about that within five (5) days upon the transfer of managing rights. (Article 14 paragraph 2, of the Law on Prevention of Conflict of Interest in Exercising of Public Function). 
For violations of Article 8 Paragraph 1, 2 and 6; Article 9; Article 11; Article 12 Paragraph 1, 2 and 3 Subparagraph 3.1 and 3.3; Article 13, Article 14 Paragraph 1, 2 and 5; Article 15 Paragraph 1, 2 and 3; Article 16 and Article 17 of this Law, senior official shall be punished for minor offence with a fine in value of from five hundred (500) Euro up to two thousand five hundred (2500) Euro. (Article 20, paragraph 1.1 of the Law on Prevention of Conflict of Interest in Exercising of Public Function).
Preparation, adoption, implementation and functionalization of Legislation in Kosovo has been one of the activities that the institutions have done in these early years of statehood, led by the Assembly of Kosovo as a legislative body. There were drafted and approved a large number of laws that regulate certain areas of society.
But, given that a number of laws after their approval have encountered difficulties in implementation, or have had considerable deficiencies, very soon there was a need to amend, supplement or even draft new laws.
This was the case with the Law on Prevention of Conflict of Interest in Exercising Public Function. 
For the first time the Law on Prevention of Conflict of Interest (No. 02/L-133) was approved on 2 November 2007, but the same incurred amendments by the Law no. 03/L-155 of 19 November 2009.
Even after the first law, on the Prevention of Conflict of Interest in Exercise of Public Function (No. 02/L-133) that was issued under the Constitutional Framework for Provisional Self-Government in Kosovo (UNMIK Regulation 2001/9, dated 15 May 2001), and the Law on Amendments and Supplements to the Law No. 02/L-133 On Prevention of Conflict of Interest (No. 03/L-155), which was then issued pursuant to Article 65.1 of the Constitution the Republic of Kosovo, that was not enough for this area to be properly adjusted, and conform to international standards. 
Therefore, among several other laws that should be changed, and that were also recommended by the European Commission, in order to be adjusted to the EU legislation has been the Law on Prevention of Conflict of Interest in Exercising Public Function.
Thus, newly made, and passing through its stages, pending adoption by the Assembly on 31 August 2011 by a decree promulgated by President Jahjaga, and then published in the Official Gazette (No. 16) on 14 September 2011, and 15 days later entered into force, has begun to be implemented the Law on Preventing Conflict of Interest in Exercise of Public Function (No. 04/L-051).
With the new law has increased the number of people that the Law considers Senior Public Officials who exercise public functions and who are the main subject of this Law. 
Conflict of Interest notion, Law No. 04/L-051, defines in Article 6, as follows: “The conflict of interest is the situation of non-compliance between the official duty and the private interest of an official, where he/she has private, direct, or indirect personal or property interests, that influence, may influence or seem to influence the legality, transparency, objectivity and impartiality in the exercise of the public function.”
In this Law are stipulated situations or principles of action or inaction by the senior public official, then there are specified actions which are prohibited for the official, etc. Whereas, very important are the points of Article 8 of this Law which represent the obligations of a public official for the prevention of conflict of interest.
What is considered new in this law is the stipulation of case by case situations when the conflict of interest may be present. The law has provided that in such cases a Senior Public Official makes a declaration of those private interests that are connected with his decision in the exercise of his public function.
Law on Prevention of Conflict of Interest has also arranged for the Agency's administrative procedure for cases of conflict of interest. It is confidential and the Agency discloses only the final results of the proceedings held (Article 4).
Previous legislation on Prevention of Conflict of Interest in Exercising Public Function was considered incomplete and often was criticized by various organizations of civil society, as not appropriate, precisely because of the lack of sanctions.
This law, this time, has provided sanctions for Senior Officials who are in conflict of interest and who do not avoid the conflict of interest situations. It means that any violation of the obligations stipulated by this law, when there is no criminal offense, offense is punishable by a fine under the limits specified in Article 20 of the Law.
Central authority to oversee the implementation of the provisions of this Law continues to be as before, the Anti-Corruption Agency.
(The author is Senior Official for Prevention of Conflict of Interest, in Anti-Corruption Agency). 

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