Authors: Zoran Gavrilović, Director of Programme “Society against Corruption”, Bureau for Social Researches
This analysis is aimed at determining whether the existing normative framework, above all “Law on the enforcement of prison sanctions (Off. gazette of the Republic of Serbia, no. 85/2005 i 72/2009), but as well rule books (see Annex 3) which are a part of a normative framework, positively or negatively influences origination and development of corruption, i.e. readiness for fight against corruption of all the actors on the level of Institutions for the enforcement of criminal sanctions (further in text Institution). In order to realize this intention the analysis will be carried out both on normative and functional level.
Normative level of the analysis scrutinizes discretion competences of the minister in charge, Director of Directorate and heads of institutions, then discretion competences of those in charge of reception, implementation of treatment programs, health conditions of prisoners and security in institutions. Besides discretion competences, normative analysis will be focused on transparency and conflict of interest on the level of the system for the enforcement of criminal sanctions.
Special position in the analysis will be given to the issue if there are effective mechanisms for determining and sanctioning of illegal and/or unethical acts reported by prisoners, their representatives or institution staff. Existence of such type of protection is necessary but insufficient condition for the fight against corruption, because without punishability of illegal or unethical (professional) treatment, there is no ambient for efficient fight against corruption.
Functional aspect of the analysis will be focused on understanding the sustainability of prison system i.e. defining whether and in which way there is inter-dependence between potential for corruption and condition (technical, material, cadre, normative…) in which institutions in Serbia are.
From the aspect of functional analysis it should be known that re-socialization of sentenced Serbian citizens is primary, i.e. a manifest function of institutions. We emphasize this from the reason that issue of corruption and establishment of efficient anti-corruption systems on the level of the system for the enforcement of prison sanction cannot be imagined without the realization of this function. This is the kind of analysis that should point to the sustainability of penitentiary (finances, space, motivation of the staff and management, knowledges and skills) when speaking about realization of function trusted by the society- re-socialization of sentenced citizens. Non-realization of this function would be an indicator of non-sustainability of institution, but as well, an indicator of potential for corruption on the level of institution.
It is important to emphasize that corruption must not be observed isolated, i.e. as an incident, although there are cases when corruption is a consequence of caprice, exhibitionism, prestige and customs, but as a reflection to the existing ambient in which an individual or a group wish to accomplish their (il)legal rights in illegal or unethical manner.
Presented analysis has a preventive character because the approach to corruption is from analytic and phenomenon point, without wish to deal with investigation.
Our intention is to identify the points of risk for origination and survival of corruption. As well, we want this analysis to be an introduction into a dialogue that will improve or initiate anti-corruption mechanisms, especially if one bears in mind that from the following year all the penitentiaries will be legally obliged to develop and apply Integrity Plans.
Besides analysis this document contains proposals for recommendations (see Annex 2) for changes of normative framework which deviate, not in a small number of cases, from the needs of present time. This is specially related to the rule books that were difficult to find because there is no public available base of all regulations, which can be, alone, an introduction to non-transparency.
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Anti-corruption Analysis of the Law on the Enforcement of Criminal Sanctions and Supporting Rule Books
