ODIHR calls for improvement of campaign finance rules and prevention of abuse of public resources "well in advance of the next election"

In the final Report on the December elections, the ODIHR observation mission confirmed some of the findings of Transparency Serbia's monitoring of the election campaign, and a large number of recommendations refer to unresolved issues of election campaign financing, misuse of public resources and participation of public officials in the campaign.

The Final Report of the OSCE Office for Democratic Institutions and Human Rights (ODIHR) on the elections in Serbia held on 17 December 2023, contains 25 current recommendations and a reminder of numerous unfulfilled and partially fulfilled recommendations from earlier reports. If the Government of Serbia decides to act on ODIHR's recommendations this time, instead of ignoring them – as was the case after the 2022 election –  the success of that endeavour should be evaluated by looking at both new and all previous recommendations that were not fully fulfilled.

Among the earlier non-fulfilled recommendations, some requested a significant improvement of regulations and practices related to the financing of election campaigns, regulation of official campaigns, prevention of abuse of public resources, and pressure on voters.

For seven years, in all election cycles, ODIHR has been repeating or reminding of the failure to fulfil the recommendation that it is necessary to strictly separate the performance of public office from party activities and adhere to that division in order to ensure equal opportunities for election participants.

Since 2017, it has also been repeated that state authorities must take decisive measures to prevent pressure on voters, including public sector employees, and that the cases of pressure must be thoroughly investigated and the responsible individuals punished.

Among the unfulfilled "old" recommendations is the introduction of expenditure limits in the election campaign, which, unlike most of the neighbouring countries, do not exist in Serbia. It further deepens the unequal position of the election contestants. TS proposes that the maximum allowed campaign costs per electoral list or presidential candidate be RSD 300 million (about € 2.5 million). ODIHR has also previously indicated that campaign budget money should be paid out at the beginning of the campaign, not immediately before or after the election.

The most important ODIHR recommendation is general - that all changes in the regulations should be implemented well in advance of the next elections through an "inclusive consultative procedure" based on a "broad political consensus". ODIHR also emphasized that the Government's Working Group for the implementation of recommendations should act in full transparency and include civil society organizations. In this regard, TS reminds that this Working Group did not publish information about its work at all from April 2021 to October 2023 and that the last consultations with civil society were held in March 2021.

Probably the most controversial issue of the December elections – voter migration – is primarily significant for Belgrade and other local elections, which ODIHR did not monitor. Nevertheless, it is significant that despite that fact, a recommendation to eliminate doubts and increase confidence in the correctness of voter registration found its place in the Report. In order to achieve the same goal, Transparency Serbia proposed to the Ministry of Internal Affairs (MIA) to publish anonymized data not only on the state but also on the movement of citizens' residences (municipality of previous and new residence and dates of registration). The MIA claims in its response that "in the available records ...it is not possible to perform a search according to the specified criteria". Since the issue of organized relocation of voters is of great importance for the upcoming spring local elections in more than half of the Serbian cities and municipalities, it is necessary to open a discussion on possible ways to prevent abuses immediately.

Regarding the functionary campaign, this time, ODIHR requested that the law establish a clear separation between the exercise of official functions and the campaigning activities of the incumbents. As part of the same recommendation, ODIHR indicated that state authorities should take measures to prevent the misuse of public functions and public resources and also detect and punish these phenomena proactively. Also, ODIHR specified that the observers hired by the Agency for the Prevention of Corruption should monitor not only the activities of political entities but also those of public officials.

Even during this election campaign, the public prosecutor's office and the Agency for the Prevention of Corruption did not investigate numerous suspicions of misuse and non-separation of public office and pre-election promotions. Moreover, the legality of the officials' actions was not ensured in a timely manner, even through the acting on complaints. Thus, even after three months, citizens of Serbia do not know whether, in the opinion of the Agency, ministers Vesić and Martinović promoted their party's electoral list by using public resources, as TS indicated in its complaint. ODIHR, in its Report, recommends that amendments to the Law on Prevention of Corruption prescribe that the Agency must publish decisions related to violations of the Law on Prevention of Corruption within a short period, as is currently the case for applications concerning breaches of the Law on Financing of Political Activities.

Although the ODIHR Report states that the "decisive involvement of the President of the Republic" was one of the key factors that led to unfair campaign conditions, according to the Agency, the President of the Republic and the holder of the winning electoral list did not, in any case, violate his legal duty to clearly present to interlocutors and the public in which capacity he acts. All this clearly shows that the problem pointed out by the ODIHR cannot be solved by some additional clarification of the rules about "separation of roles" or the rules for media representation, but only by introducing a legal restriction on the promotional activities that public officials can undertake in that capacity in the period before the elections. Transparency Serbia has offered concrete solutions for amending Article 50 of the Law on Prevention of Corruption.

Concerning the financing of the campaign, ODIHR, in addition to reminding the recommendations given after the previous elections, particularly pointed out a non-regulated problem of the participation of "third parties" in the campaign. Examples include negative campaigns through unsigned posters, as well as the case of the SNS call centre, which CINS previously wrote about. Regarding this issue, TS highlights that the December elections showed that some expenses, clearly part of the election campaign, are treated as if it were an unregulated "third-party campaign". The most obvious example is the advertising of the SNS candidate for mayor of Belgrade, Aleksandar Šapić, worth almost € 40,000, which is not presented as part of the SNS expenditure for the election campaign.

ODIHR indicated that the Administrative Court should use "all available means" so that legal remedies in election procedures are effective. Related to this, TS reminds that for some disputes related to elections under the jurisdiction of the Administrative Court, there is not even a prescribed deadline for action. As a result, the Administrative Court has not yet decided on the complaint filed by Transparency Serbia against the Agency's decisions on applications, which refer to the 2020 elections.