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Analysis of Legal Framework against Anticorruption
May 2010
The anti-corruption legal framework emphasizes primarily preventive aspect of the
fight against corruption. Less emphasis is made to penalizing provisions. The very
focus on the preventive aspect makes these laws ineffective in practice. This way,
the new laws against corruption have become legal mechanisms with no teeth which
make the fight against corruption unsuccessful. In general, the new laws of fight
against corruption place the Anti-corruption Agency into an inferior position against
the level of presence and the type/shape of the manifestation and distribution of corruption
across sectors. This results from the fact that the new laws allow the agency
competences to primarily fight the so-called petty corruption, while the fight against
high level political corruption has been made extremely difficult.
Therefore, this analysis reviews the legal framework on anticorruption. Analysis will
focus mainly on the context of creation of an adequate and effective legal framework
against corruption which aimed primarily prevention and fight against corruption. This
way, the analysis will deconstruct four key aspects which prove that the new anticorruption
legal framework will practically produce no positive results in institutions
efforts to fight corruption.
Legislation with no teeth
Organization ÇOHU! has identified few essential flaws in the new legal framework
on anti-corruption. Firstly, the new laws do not cover several substantial aspects of
expected to be covered by an anti-corruption framework. For instance, the set competences,
procedures, and methods for uncovering and investigating corruption do
not empower the Agency on prevention and fight against corruption. In general, the
Agency’s mandate is again limited in conducting administrative investigation while
criminal investigation remains a competency of the Prosecution. This fact places the
Agency in direct conflict with its own mission, since the corruption acts as determined
with the Criminal Code of Kosova are criminal acts and as such fall out of the Agency’s
competences. In principle, it is paradoxical to expect that an institution with a mandate
limited to administrative investigation to prevent and fight acts that are in their
core criminal ones.
Besides this, the issues like “false declaration of wealth” or “continues exercise of conflict
of interest” do not get penalized by the Kosova’s Criminal Code. As a result, they
do not get penalized neither by the new laws against corruption. Similarly, “refusal to
declare wealth” or “refusal to declare conflict of interest” is sanctioned only with soft
administrative measures, but not with criminal ones as well.
The second flaw of the current anticorruption legal framework consists in the conflicts
that the laws against corruption have with the Kosova’s Criminal Procedure Code
(KCPC). Article 18, paragraphs 1.1, 2.2, subparagraph 3 and article 20 paragraph
1 of the Law on Agency against Corruption and article 12 paragraph 2 of the Law on
Declaration of Wealth contradict directly with the KCPC, and as such render the anticorruption
laws impossible to be implemented in practice.
Another flaw is the acute leeway to diverse interpretations of the laws by the Agency
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