Draft Conclusion of the Second Phase of the Inter-Party Dialogue

The subject of the analysis is the Draft Conclusion of the Second Phase of the Inter-Party Dialogue (hereinafter the Draft), which was presented on 18 September. The focus of the analysis will be on those topics that are within the scope of BIRODI’s activities, i.e. on the risks imposed to integrity that we have pointed out in our research and studies.
The act of establishing the Interim Supervisory Body (hereinafter the Competent Authority) is a recognition that the Regulatory Body for Electronic Media (hereinafter REM) will not perform its duties as defined by the Law on Electronic Media (Article 22 and paragraph 22 and Article 47), which have been performed until the parliamentary elections in 2014 The authors of the Draft therefore proposed the formation of a reproduction of the REM, which overlaps with the Supervisory Board (hereinafter the Board), the Body whose competencies and composition are regulated by the Law on Election of Deputies (Articles 99 and 100).
Thus, in addition to two (non-functional) bodies, a third was created! What will happen when different decisions or opinions are made about the same thing remains to be seen!
The authors of the Draft made sure for  the Draft to be additionally problematic from the aspect of integrity by envisaging that the Body should be established the Ministry of Culture and Information as part of the executive power  instead of the National Assembly, which performs a control function under Article 7. of the Law on the National Assembly. According to the author’s idea, for the period of its existence, the Body will also supervise the work of parliamentary / regulatory bodies, which is contrary to the concept of independence of regulatory / parliamentary bodies (Agency for Prevention of Corruption, REM, Commissioner for Information of Public Importance and Personal Data Protection…).
The authors of the Draft suggest that „political pluralism and professional expertise“ should be taken into account when electing members of the Body. By introducing this rule, the authors of the Draft promote the concept of the party state, which is prevented in our country by Article 5 of the Serbian Constitution, paragraph „Political parties cannot directly exercise power, nor subordinate it to themselves.“
In this way, the concept of political will is promoted, which is contrary to the concept of the rule of law and the integrity of institutions, i.e. the principle which explains that the rights and obligations of participants in legal life must be regulated on the basis of what is written in the law, and implemented by the competent institutions. In particular, the Regulatory Body should take care to respect the rights and abide to obligations in the election process since its members are experts with no conflicts of interest selected in a process in which conflicts of interest are regulated, without discretionary decision-making, in public competition with clear criteria and defined sanctions for violating the procedure.
Instead, the authors of the Draft gave to REM the opportunity to „elect“ six members (following non-transparent procedure) who will be members of the Body that will supervise the work of REM, which REM itself elected to that Body. That is a basic example of conflict of interest.
On the other hand, one of the facilitators, the President of the National Assembly, is the leader of the party participating in the elections. He, as well as other facilitators, were given the right to propose six more members of the Body in a non-transparent process. Following the Article 40. of the Law on Prevention of Corruption, this behaviour is clear example of the conflict of interest at the position of The President of the National Assembly.
The integrity of the Body is also determined by having the capacity to perform its prescribed competence. The Body has an obligation, among other things, to establish media monitoring. In addition to human resources, technical and financial resources are needed.
In this way, the best part of the REM, the Broadcasting Supervision Service, will not be used for media monitoring. The selection and training of staff in the Body aimed to deal with the administration, organization and monitoring of the media are challenges that will affect its integrity.
The lack of principles in the work of the authors of the Draft is reflected in the fact that, unlike the analysis of media reporting, which was transferred to the Body, REM is left with the right to create methodological monitoring. Thus, REM has in fact has retained the right to (indirectly) influence the appearance of the broadcast reporting monitoring report by giving consent to the methodology of the media monitoring. Previous experience shown that the current composition of the REM Council will be headed by the President, who equating the measurement of tonality with „censorship“ and „influence on editorial policy“. These were excuses for excluding methodology defined ODIHR, the Venice Commission and the European Commission’s Directorate for Human Rights. REM’s methodology, along with the fact that broadcasters reporting will be monitored by newly established temporary Body, ensure that Serbia does not receive an adequate media monitoring mechanism during the elections. In this way media do not perform their basic function, help to the voters to make decisions for whom to freely vote on elections.
The fact that the document does not state the obligation to respect the principles developed by ODHIR, the Venice Commission and the European Commission’s Human Rights Directorate opens the possibility for REM to develop its own „principles of methodology“.
All this could have been avoided if BIRODI’s proposal to replace the REM Council, which has been operating in an illegal state for seven years, had been accepted.  That would assume to change the party’s influence on the election of members of this Body by changing the method of electing members of the Supervisory Board. Unfortunately, neither the Government, nor the opposition, and the EU mediators gave sufficient attention to preserve the rule of law and the integrity of institutions as a guarantor of the integrity of the electoral process.
When it comes to the nature of acts governing the rights and obligations of broadcasters, the decision to separate public services and private broadcasters further undermines the integrity of the electoral process. If you look at the BIRODI monitoring, and the last one covers the period from June 11 to June 30 this year, about two thirds of the monitored time in all News on TV with national coverage and H1 about the President of the Republic was in the Pink TV diary. This is a multi-year trend to which REM has not been responding following the Article 47 of the Law on Electronic Media. The introduction of simply recommendations for private broadcasters will enable the continuation of the above described practice.
The Draft does not contain any information about the possible intention to change Article 50 of the Law on Prevention of Corruption, which would deprive the President of the Republic of abusing public resources, i.e. to have the right to official campaign both during and outside the election period. The attached Draft does not deal with the findings of the ODIHR report on the 2020 parliamentary elections, which in two places declare violation of the OSCE Document from Copenhagen from 1990, paragraph 5.4. by the President of the Republic who is also the President of the Party.
The draft did not recognize as a risk or formulated any measure against violating Article 40 of the Law on Prevention of Corruption, which originate from the fact that the President of the Republic from the position of the party president forms criteria and nominates candidates (Article 45 of the Serbian Progressive Party) thus placing future legates in a dependent relationship with him. In short, the mechanisms of Aleksandar Vučić’s personal power were not the topic of the Draft!
Allowing the opposition to be present on TV, especially on public services, takes us back to 2012, when both the government and the opposition used the media for their promotion, and the media showed no resistance. This kind of „concession“ is not really a concession to the opposition. The government thus kept its castle called TV Pink, which, with the explanation „that a private broadcaster can do whatever it wants“, will be an unsanctioned megaphone of the government and a spreader of hatred towards the opposition.
BIRODI monitoring unequivocally shows that the problem of the media in Serbia is not only in reporting on the government and the opposition. The problem is in exercising the rights of citizens defined by Article 51 of the Constitution of Serbia, the right to objective, truthful and timely information.
A positive surprise in the Draft is the introduction of self-regulation on public media services, if it involves the editorial self-evaluation of journalists, which BIRODI has been proposing for years, and which should help the media become means of research, analysis, questioning, accountability instead of means of promotion, propaganda and labelling, and deliberations.
If we make an analysis of who has made the profit of the situation and who did not, in the negotiation of the application of the law, i.e. „Contractual law“, in the first place „profiteer“ is Aleksandar Vucic, who conserved the levers of personal power, preserving the possibility of having a both, public and party presidential function, and thus the possibility to conduct an official campaign during and after the election which was broadcasted on TV Pink. In addition to Vučić, REM also benefited, shifting its responsibility for media coverage to the Body, while retaining control over the development of the monitoring methodology with an undefined obligation to incorporate international standards into it.
On the side of those who did not profit are citizens and democracy. The proposed Draft does not guarantee that the citizens of Serbia will be able to freely decide for whom to vote through adequate information. This can lead to a kind of unorganized boycott of elections embodied in high abstinence, no matter if (the entire opposition) will go to the polls. I find the argument for this unexplored thesis in human nature, which has no will and desire to deal with things which are not defined by the rules, and are missing a guarantee in terms of implementation.The opposition should answer the public’s question why they did not insist on amending Article 50 of the Law on Prevention of Corruption, which denies the president a campaign, but also why they did not ask to prevent, according to ODHIR findings, violations of OSCE documents declaring that the President of the Republic cannot be the President of a party at the same time. This is the core of Vučić’s personal power, which has destroyed the rule of law, the integrity of institutions and a free public, without which there are no free elections.
Paradoxically, the opposition, with its proposals for the formation of special bodies, (alongside the previous forgetting of 42 recommendations made during the civil protests) gave the government the idea to „make a concession“, and in fact to use it to make the REM 2, which will be a replica of the REM 1. In this the Government had the support of EU delegates.
EU delegates are obliged to answer the question: Where the proposal (that made part of the first document intended to apply the Law on the Protection of Whistleblowers to prevent pressure on voters and record abuses) has disappeared?
Finally, we should ask ourselves, what lessons have we learned? The first lesson is that electoral integrity is closely linked to government rights, the integrity of institutions and the free public, i.e. everything that is currently not enough in Serbia. Serbia not only has a problem with the election crisis, but also with the rule of law, the integrity of institutions and a free public. Insisting on restoring the rule of law and the integrity of institutions is the first step in the fight for fair and honest elections. If we accept this approach, which is not the only one, then the requirements and solutions must go in the direction of uncompromising respect for existing laws and competent institutions and changes within the existing institutional and normative framework. Parallel and shortcut solutions are not allies, on the contrary, they are part of the problem. BIRODI tried to point that out! The rule of law and the integrity of institutions with a free public are remedies for personal power!
BIRODI will base its assessment of electoral integrity on the content  of and adherence to the relevant  laws, which are (indirectly) related to the electoral process, then the actions of institutions that have (in)direct competencies related to elections, (respect for codes and conduct of professions) which are ultimately related to the election process.
By drafting the report on electoral integrity, we will try to raise awareness of the electoral public, making the first, but not sufficient step in the development of electoral integrity. The second step is to make the monitoring process participatory. To do that we plan to use monthly reports and to establish the election panel.
The elections concern not only the parties, but all of us. That’s lesson number two!

The author Zoran Gavrilović, a socilogist,
integrity and media monitoring expert