Reginal Report – Area 3

Sub-area 3.2. Involvement in policy- and decision-making process

Standards for CSO Involvement

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

CSO involvement in policy and decision-making processes on national level is subject to clearly defined standards, which are aligned with the best practices in meeting minimum requirements by policy-making processes.

In Albania, the legal framework related to CSOs involvement in policy and decision-making is governed by the Law on Notification and Public Consultation, which sets out requirements for consultation on draft laws and policies. The law specifies a reasonable timeframe for familiarizing with the documents and forming an opinion and obliges public authorities to give a written feedback. An electronic register of lobbyists is maintained by the Albanian parliament.

The legal framework in North Macedonia imposes clear standards for CSO involvement in all policy-making processes. A Rulebook by the Government lays down the online publishing of draft laws and a minimum timeframe of 20 days to allow for open consultations of legal drafts. Some state institutions have resumed their practice of involving the public and CSOs by inviting them to comment on laws and policy initiatives in the very early stages of drafting while there is sufficient time to form and offer an opinion. The meeting of deadlines for electronic consultations has improved and an overall continuous involvement of CSOs in all key legislation-making processes by means of various consultation methods has been observed.

In Bosnia and Herzegovina, the legal framework provides CSOs with the possibility for participation in the preparation of legal documents from the earliest stages of drafting. Consultations are obligatory for all ministries. All persons or institutions interested or affected by certain legislation must be involved in the minimum consultation processes on all draft legislation. The particular documents that govern the legislative processes related to consultation are the Rules for Consultation in Legislative Drafting of Legal Acts at the level of the Council of Ministers, the Regulation on Rules for Participation of Interested Public in the Process of Preparation of Federal Legislation and Other Acts in the Federation of BIH, and the Guidelines for Republic Administration Bodies on Public Participation and Consultations in the Drafting of Laws in the Republic of Srpska.

With the enforcement of the Regulation on Minimum Standards for Public Consultation in January 2017, Kosovo marked an important step towards the legislation on participation of CSOs and the general public in the policy and decision-making processes. The regulation is only mandatory for central public institutions, with the exception of the Assembly. This means that the Government is obligated to begin public consultation from the early stages of drafting of the agenda for the following year. It also sets out specific requirements and deadlines for public consultations conducted by government units. The online platform for public consultations was launched in February 2017 and provides an alternative means for consultation with CSOs and the public. The Rules of Procedure of the Assembly are still undergoing amendments. In this regard, CSOs are advocating the addressing of the non-mandatory provisions on involving CSOs and organizing public hearings.

In Montenegro, the Decree on the Election of Representatives of Non-Governmental Organizations into the Working Bodies of the State Administration Bodies specifies that CSO involvement in the preparation of laws and strategies is to be achieved by including bodies, organizations, associations and individuals in the initial phase of drafting of the laws or strategies and by holding public debates. The Regulation sets out two modes of cooperation. The first mode of cooperation involves the obligation of the state administration bodies to include representatives of NGOs in the consultation processes by publishing public calls on their websites and e-administration web portals. The second mode of cooperation involves inclusion in the drafting of laws and strategies through participation in public debates. The Decree also regulates CSOs’ participation in the state funding process.

In Serbia, provisions and standards contained in several laws and bylaws allow the participation of CSOs in decision-making processes. The Law on Public Administration prescribes the duty and obligation of public administration bodies to provide conditions for public participation during the preparation of draft laws, other regulations and acts. The holding of public debates in the preparation of policies is regulated in more detail by the Rules of Procedure of the Government. The Rules of Procedure indicate all instances in which a public debate should be conducted and include a provision imposing obligatory public debates when preparing a development strategy. Moreover, the document prescribes mandatory public hearings in the preparation of laws, which brings about significant changes to certain issues that are of special interest to public. The adoption of the Regulation on the Methodology of Public Policy Management and Regulatory Impact Assessment, as well as the Content of Individual Public Policy Documents in the beginning of 2019 is also worth mentioning. The processes relating to public policy acts and documents at all levels have been harmonized within this document and provide mechanisms for systematical prevention of the adoption of ineffective regulations and documents.

The state policies in all of the countries fail to meet established standards when it comes to providing educational programs/training for civil servants on CSO involvement in state policies.

In practice, CSOs continue to report setbacks to their involvement in decision and policy-making processes at both national and local level.

In North Macedonia, cooperation between the Government and civil society has improved. A survey indicates that 61.3% of CSOs have cooperated with a state institution in the past year, 28.2% of CSOs have had no need to cooperate with state institutions, and 10.4% of CSOs have attempted but failed to cooperate. Throughout the year, CSOs participated in the preparation of numerous laws and other policy and strategic documents. However, 2019 saw a rise in the exclusion of CSOs from certain politically sensitive issues such as: the Draft Law on Public Prosecution, the Draft Law on Public Gatherings and the Law on the Use of Languages.

The situation in Montenegro can also be seen as progressive. CSOs that took part in the online questionnaire stated that they participated in consultations on the drafting of laws, bylaws and policies to a large extent during 2019, i.e. 47.9% of the respondents. From these organizations, 52.2% reported that some of their suggestions were taken into account; 13% stated that all of their suggestions were taken into account, and 13% said their suggestions were dismissed altogether. During 2019, 66 calls for participation in public hearings and a total of 51 minutes and reports were published. However, the lack of available electronic documents on e-government portals continues to be the trend. Moreover, 39.58% of organizations believe that draft versions of laws, bylaws, decisions and reports are not available prior to consultations.

In Bosnia and Herzegovina, the process of CSO involvement is faring well only at the highest level of the Council of Ministers. The e-consultation platform is in use and specifies that no document can be tabled at the sessions of the Council of Ministers without being approved by the General Secretariat and followed by a statement that consultations have been carried out and that all participants in the consultations received feedback and satisfactory explanations. However, these processes have not been implemented at any of the lower government levels, which therefore offer no formal consultation processes.

In contrast to Bosnia and Herzegovina where CSO involvement at the local level is met with challenges, consultations carried out at the local level in Albania seem satisfactory. More specifically, responses from surveyed CSOs indicate that the majority have participated in local-level consultations conducted by local self–government units, including participation of CSOs in local-level consultations processes on fiscal packages and local annual budgeting, social services, youth strategies, etc. More than half of surveyed CSOs (59%) participated in consultations for the preparation of draft laws and policies, while 37% of surveyed CSOs stated that they did not participate in any kind of processes. Regarding the outcome of the consultation processes, almost half of the surveyed CSOs (45%) expressed that some of their suggestions and recommendations were considered by the public authorities conducting the consultation processes.

The situation is far from optimal in Kosovo where 74% of CSOs reported that they were not involved in the drafting of any type of policy/legislation during 2019, either at the invitation of public institutions or on their own initiative. Only 12% of the interviewed were regularly invited by public institutions to participate in public consultations. From the CSOs that participated in public consultations, 12.5% had their comments fully accepted, 70.8% had their comments partially taken into consideration and 2 organizations did not have their comments taken into consideration at all. Written feedback on the reasons for rejection was received in only 17% of the cases.

Similarly, practice in Serbia shows a disabling environment when it comes to routinely inviting CSOs to discuss policy and legal initiatives in the early stages of drafting. In 2019, 47 calls for public debates on laws (38) and strategies (9) were announced through the E-Government Portal. 30 CSOs (almost 58%) reported they were involved in consultations about policy/legislation, only 6 CSOs (11%) stated they were involved in the early stages of legislation drafting, and 71% CSOs reported they participated in the work of advisory, consultative or work group of bodies and committees. A positive outcome of CSOs’ engagement following strong pressure from the Coalition for Social Entrepreneurship is the halting of the adoption of the Draft Law on Social Entrepreneurship (which excluded associations as founders of social entrepreneurships) in March 2019.

Public Access to Draft Policies and Laws

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

All of the countries have valid policies and laws on public access to information, which are generally aligned with international practice.

In 2019, developments with regard to the right of access to information were observed in Kosovo, North Macedonia and Montenegro.

Changes in the legislature of Montenegro raise concerns. The existing Law on Free Access to Information prescribes that every domestic and foreign physical or legal entity has the right to access information without being obligated to explain the reasons and the interest for seeking it. However, the new Draft Law on Free Access to Information and the Law on Data Secrecy introduce provisions that could potentially limit this right. One of these provisions gives public officials the authority to decide which information is one of private interest and which one is of public interest. Another provision specifies that requests for free access to information can be declined if they ask for the disclosure of too much information. These provisions undermine legal security and leave room for subjective interpretations that could seriously limit access to information. Many domestic CSOs and media, as well as the international community, have warned against the adoption of the law on the grounds that the new law would be unconstitutional.

In contrast, more positive changes have been observed in North Macedonia since the adoption of the new Law on Free Access to Information of Public Character in May 2019, which was prepared in a participatory manner by including CSO representatives. Systematic changes include the establishing of a new agency, aimed at securing quicker and improved quality access to information, as well as increased transparency and accountability of the providers of information. Political parties have been added as holders of public information. The new law sets out a clear procedure for accessing public information, as well as sanctions for civil servants/units for breaching the legal requirements on access to public information.

Improvements have been observed in Kosovo as well, where the right of access to public information is a guaranteed constitutional right. The amending process of the Law on Access to Public Documents was concluded in 2019. The new law prescribes advanced forms and procedures for accessing public documents and imposes new requirements on archives of public institutions to update and publish their lists of available documents. The procedures and mechanisms for accessing published documents/information have been clearly prescribed. Public institutions are obliged to respond to a request for access to public information/documents, which if denied must be accompanied by a detailed explanation of the reasons for the rejection. Failure to respond to a request will be met with fines.

Practice indicates that the procedures for accessing public information have not been optimally implemented across the region.

In 2019, in Montenegro, 1715 complaints were submitted to the Agency for Protection of personal Data and Free Access to Information. 412 of the filed complaints mentioned administrative silence on behalf of the institution acting as the holder of the information, while 424 filed complaints were dismissed due to the institution providing the requested information. Moreover, only a small number of CSOs used the procedure for accessing free information. From the CSOs that did use it, the majority were not informed of the possibility to appeal denied access to information.

In North Macedonia, most of the CSOs that used the opportunity to access information received a response, usually within the set out timeframe and in a clearly written form. However, in terms of stating the grounds for refusal of the requests, explanation was not provided for the majority of the requests, nor was the complaint procedure observed. The survey indicates that just over a third of CSOs have sent requests for accessing information of public character in the past 12 months. A total of 26 CSOs stated that they received a response, 22 CSOs said they occasionally received a response, and 5 CSOs did not receive any response.

In Kosovo, the Government’s Annual Report indicates that 46% of the requests for access to public information coming from civil society have been made at the level of local government. Three CSOs have filed lawsuits for not being granted access to public information/documents and won, but the court decisions have not yet been enforced.

In Serbia, preliminary data gathered from the Commissioner for Free Access to Information of Public Importance showed that from the 25,416 requests recorded in 2019, 20,572 were adopted, 563 were not taken into consideration, and 1746 were rejected.

In Albania, 46% of the surveyed CSOs said that they had submitted requests for accessing information to public institutions, 86% of which assessed the responsiveness of public institutions as positive. The answers were written clearly (70% of CSOs) and received within 10 days as stipulated by law (69% of CSOs). There is still room for improvement when it comes to providing explanations for denied information requests as 72% of CSOs reported that their requests were denied without any explanation. In 2019, the Commissioner’s Office received 786 complaints, a large number of which were submitted by CSOs, serving as a clear indicator of their attempt to raise awareness on exercising the right to information.

CSOs’ Representation in Cross-Sector Bodies

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

CSO representation in cross-sector bodies in all of the countries in the region has not been properly regulated and is practiced on an ad-hoc basis.

Montenegro is the only country to adopt a Decree on the Election of CSO Representatives into the Working Bodies of the State Administration that regulates the obligation of state bodies to include representatives of NGOs into their working and advisory bodies. This is done by publishing a public call on their websites and the e-administration portal. As soon as the call is opened, organizations are free to suggest a CSO representative for the respective body. Each consultative body must include at least one CSO representative.

The existing legislation in Serbia imposes the obligation on public institutions to invite CSO representatives to different decision-making and/or advisory bodies created by public institutions. The draft of the Guidelines for CSOs’ involvement in working groups for drafting public policy documents and regulations was available for consultations during 2019. The Guidelines are a non-binding act that proposes principles and a procedure for appointing CSO representatives to working groups established by state administration bodies. The Guidelines allow for CSO participation in the process of preparing, adopting and monitoring the implementation of regulations at several levels. No clear guidelines exist on how to ensure appropriate representation from civil society based on transparent and predetermined criteria, which is not in line with standards.

North Macedonia does not have a standardized mechanism for selection of representatives in cross-sector bodies. Various legal acts ensure the establishment of certain councils, committees, etc. and impose the obligation of including CSOs in the mechanism. The Decision on Establishment of the Council specifies that CSO representatives within the sector are selected by means of a transparent and open procedure and appointed as representatives of particular areas pertinent to their work.

In Bosnia and Herzegovina, the current legislation provides a possibility for cooperation between public institutions and representatives of civil society organizations at all levels. However, there is no selection system and CSOs are mobilized by means of direct invitation on specific issues.

No changes have been observed regarding this issue in Kosovo. Government level legislation allows but does not oblige the government to invite CSO representatives into these bodies. As an exception, sectorial consultative committees on municipal level should be established and comprised from citizens and civil society; however, only a few municipalities have fulfilled this obligation. A number of independent or advisory bodies have adopted their own specific rules of procedure, envisaging the participation of civil society representatives, and even specifying selection procedures.

Similarly, in Albania, no specific legal framework regulates CSOs involvement in cross-sector structures. An important step has been made with the adoption of the National Plan for European Integration (NPEI) 2018-2020 by the Government of Albania in May 2018. Supporting the decision of the Council of Ministers on the approval of the NPEI, the Prime Minister issued an order on the forms of participation, operation and institutional structure of the European integration partnership platform. The order sets out that CSOs are an integral part of the two levels of representation: the Governing Board comprised of 15 members, two of whom must be CSO representatives, and 33 Discussions and Consultations Tables analogous to the “acquis” chapters of the European Union. Membership is opened to all and applications are assessed by the members of the Working Groups.

The prevailing opinion in practice is that selection of CSOs in cross-sector bodies is still not being carried out in a fully transparent way; for the most part, CSOs are unable to express their opinions freely and must use alternative ways of advocacy to defend their positions.

In some cases in Montenegro, working groups or councils which included CSO members organized meetings without notifying CSO representatives or convened them at times when CSO members were unavailable to participate. This has been the experience at the both national and local level. In 2019, 39.6% of CSOs participated in the work of advisory or working group bodies and committees.

In Serbia, a high 71% of surveyed CSOs reported they were involved in the work of bodies and committees in 2019.

This percentage, 34%, is even lower in Albania and almost the same in North Macedonia, where 35.6% of CSOs report taking part in the work of cross-sector bodies.

The country causing the most concerns is Bosnia and Herzegovina, where involvement of CSO representatives is still rare and sporadic.

Similarly, survey results in Kosovo show that the vast majority of CSOs are not part of consultative bodies. At the central level of governance, around 70% of respondents reported participation in consultative bodies, whereas at a municipal level, no participation was reported by around 20% of CSOs.

Sub-area 3.3. Collaboration in social provision

CSO Engagement in Service Provision and Competition for State Contracts

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

In all of the countries, CSOs are allowed to provide services, but are rarely engaged in the provision of anything other than social services.

In North Macedonia, three key laws in the area of service provisions were amended and improved in favor of associations and foundations. Firstly, the new Law on Public Procurement addressed two key issues: new award criteria were added to the lowest-price criterion and the e-auction option was introduced. Secondly, amendments made in a participatory manner to the Law on Social Protection set out that an association (but not a foundation) may perform certain social protection activities defined by this law if the association is registered for working in social care. Thirdly, the Law on Free Legal Aid stipulates a possibility for CSO involvement in providing pre-trial legal aid. In 2019, the passing of a new law stipulated better legal protection for citizens and amended and improved the funding process for associations and foundations that provide legal aid by allowing the awarding of grants from the Ministry of Justice.

The existing legislation in Serbia allows the extension of services by CSOs in various areas, including education, healthcare and social services. However, the Law on Free Legal Aid limits significantly the capacity of associations for providing legal assistance and support to vulnerable categories, except in cases provided for by asylum laws or related to domestic violence and non-discrimination. Also, the lack of a clear framework for co-operation prevents CSOs from assuming a more dominant role in health care. On the other hand, the legal framework for the most part does not contain provisions that prevent civil society organizations from providing services. The provision of health services is not subject to any licensing/certification procedure, but individuals who are directly involved in the provision of health services must be certified by the Ministry of Health.

In Albania, CSOs remain the main stakeholders in delivering social services for a wide range of beneficiaries. However, the current legal framework presents many challenges that need to be addressed in order to create a supportive environment for CSOs involvement in the provision of publicly funded social services.

In Kosovo, the legal framework on public service provision is in the amending process. The concept document of the Law on Family and Social Services has been approved in the first quarter of 2019. Its objectives include improving the quality and increasing the transparency of social services, as well as building a sustainable system for financing. Moreover, the provisions of this law take into account the specific nature of the civil society sector. In everyday practice, CSOs in Kosovo usually provide services in the area of social care, education and health care.

In practice, CSOs are largely disregarded in the complete cycle of development and provision of services and are rarely seen on the implementing side of state contracts.

For example, in North Macedonia, 11 CSOs were awarded contracts for the provision of public services. In Kosovo, only 3 out of 16 applicants were selected for extending public services. In contrast, in 2019, in Serbia, a total of 558 organizations were licensed for providing social services. As part of the group of non-public service providers, CSOs make up for 66% of all service providers in Albania.

The social entrepreneurship framework is still reported as unfavorable in Albania and North Macedonia. North Macedonia restarted the drafting of the Law on Social Entrepreneurship, along with the Strategy for Social Entrepreneurship, the former being expected to be finalized by June 2019, and the latter by November 2019. With regards to social enterprises, Albania did not launch any legal initiatives. Moreover, the present legislation is considered very problematic as it prescribes that social enterprises receive the same treatment as state enterprises, limiting them to non-government funding, thus minimizing their productivity.

State Funding for CSO-Provided Services

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

CSOs in all of the countries are entitled to receiving partial funding for the provision of services.

In North Macedonia and Serbia, the legal framework provides partial funding to CSOs for the provision of basic social services, while in Albania, the Ministry of Health and Social Protection grants funding through the Social Fund, a new financial mechanism established to help municipalities with social care service planning and delivery.

In Kosovo, however, an ongoing issue worthy of mention is the absence of specific budget lines for funding service provision by CSOs. Funding is only granted based on public calls for services and is never provided by state authorities. CSOs receive the same treatment as economic operators and the requirement for recording CSO in a commercial register has been removed. Furthermore, funding may be granted on annual basis only and there is no option to conclude longer-term agreements.

In practice, service-providing CSOs find the obtained funding insufficient.

In Serbia and North Macedonia, CSOs report insufficient funding to cover the basic costs of the services they are contracted to provide.

70% of service-providing CSOs in Kosovo and 75% of service-providing CSOs have stated that the received funding cannot meet basic costs.

It is worth mentioning that although CSOs in Bosnia and Herzegovina have been the main providers of direct humanitarian assistance to migrants and refugees, they face significant challenges in terms of lack of funding to respond to the migrant crisis.

Procedures for Contracting Services

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

The procedures for contracting services in all of the countries are governed by the Law on Public Procurement.

In Kosovo, the Law on Public Procurement and the Law on Social and Family Services remain ambiguous, particularly with regard to the selection procedures for service providers.

North Macedonia has enforced transparency provisions regarding distribution of funds to service providers which contain minor issues that need addressing. There are also guidelines in place on ensuring transparency in the process of evaluation and selection of service providers, as well as managing conflicts of interests.

Similarly, the law in Serbia contains provisions on the prevention of conflicts of interest, as well as certain mechanisms aimed at ensuring transparency and legality of this procedure.

In Albania, the procedures for contracting services are carried out through the competitive grant scheme instead of a public procurement procedure.

In practice, the procedures for contracting services are considered somewhat unfair and lacking in transparency.

To illustrate, 26 CSOs were contracted for the provision of social services in Kosovo in 2019. Around 48% of CSOs considered the allocation of state contracts neither transparent nor fair. The situation is similar in Montenegro, where 75% of the organizations that participated in an online questionnaire stated that allocation of state contracts was neither fair nor transparent.

CSOs in North Macedonia shared a slightly more positive viewpoint, with 62.6% of the respondents reporting that they did not know if the procedure for awarding state contracts for service delivery was fair and transparent.

Accountability, Monitoring and Evaluation of Service Provision

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

The legislation contains some standards and monitoring procedures regarding service provision in all countries.

In Montenegro, service provision monitoring standards and criteria are not regulated by any laws or bylaws. Instead, other laws that regulate the licensing of services related to social and child security stipulate that if the competent state administration authority determines during the period over which the activity license was issued that the service provider does not meet the prescribed conditions, it will initiate procedure for suspension of the license. This indicates that the state authority may monitor and inspect the service provider.

In Albania, the public authorities that contract out services through CSOs can exercise control and monitor both the quality of the services and the funding. They have the right to inspect the premises where services are provided by providing prior notification.

In Bosnia and Herzegovina, the legal provisions on accountability, monitoring and evaluation of service provision are mainly part of internal policy documents of the relevant institution/authority level.

In North Macedonia, the Law on Public Procurement lays down that the use and spending of public procurement funds is under the control of the State Audit Office. When it comes to monitoring quality standards, the Law on Social Protection stipulates that the monitoring procedure for services provided by contractors is undertaken by the Institute for Social Affairs, where staff of various profiles and expertise performs assessment of quality standards (depending on the issue of social protection that is being monitored).

With regard to the possibility for monitoring both the spending and the quality of service providers, legislation in Serbia meets the standards only to a certain extent. The control procedure is prescribed by the Law on Public Procurement and the Rulebook on Regulation of the Public Procurement Procedure.

CSOs in all of the countries report rather inadequate monitoring and that state institutions are not imposing tight controls.

The deficiencies in the monitoring and evaluation procedures vary from country to country. Namely, Montenegro and North Macedonia both report mixed experiences as some CSOs say that they have been subject to excessive control, while others say state the opposite or say that they are not familiar with the issue. In Albania, reports on conducted inspections are made available, while in Bosnia and Herzegovina, a periodic reporting to competent institutions is still the main method for assessing the provided services. Finally, in Serbia, the interviewed representatives of CSOs indicated that they were not subject to monitoring in 2019 as there was no established monitoring mechanism in use at the time of service provision.