26 March 2017

SAWICKI PROPOSAL

On 26 January the Immunities Committee of the Parliamentary Assembly of the Council of Europe (PACE), chaired by Social-Democrat Liliane Maury Pasquier from Switzerland, adopted a unanimous declaration on allegations of corruption “to send a clear message of zero tolerance”:

 “The committee calls on the Bureau of the Assembly to set up an independent external investigation body to assess the functioning of the Assembly and shed light on hidden practices that favour corruption, the only measure which would end impunity for abuses and restore confidence in the Parliamentary Assembly, its actions and decisions.”

On Friday 27 January the PACE Bureau responded and unanimously agreed:

“… that an independent external investigation needs to be set up to shed light on hidden practices that favour corruption. The Bureau charged the PACE Secretary General with the preparation of a Memorandum on the draft terms of reference of the independent external investigation body.”

(„Corruption Allegations at PACE: Bureau Decides on a Three-Step Response”, 27 January 2017.)

Then, on 3 March 2017, Wojciech Sawicki, the Secretary-General of PACE, presented a concrete proposal for an independent external body to investigate corruption allegations (see below).

This is an encouraging and constructive outline. If it would be adopted PACE would be able to restore its honour and credibility. At the same time it would be naive not to expect strong resistance on the part of those who resist (or even fear) transparency.

At a meeting of the Bureau in Madrid on 9 and 10 March no agreement could be reached on how to respond to the Sawicki proposal. It is certain that some will now try to water it down, or to present an alternative plan, that would fall far short of what the Bureau decided on 27 January.

The best would be for the Bureau of PACE to forward the Sawicki proposal to the next regular PACE plenary meeting in April. On a matter of such importance, it is the whole assembly that needs to be brought into the debate. As a background to this discussion: this is the text of the proposal made by the Secretary General.

 

3 March 2017

Bureau of the Parliamentary Assembly

Allegations of corruption within the Assembly – setting up of an independent external investigation body

Memorandum by the Secretary General of the Parliamentary Assembly 

  1. Introduction
  1. At its meeting on 27 January 2017, the Bureau of the Parliamentary Assembly decided to set up an external investigation body to shed light on the allegations of corruption within the Assembly. This decision was taken in response to the concerns expressed by numerous national delegations,[1] the EPPD/CD and SOC political groups, many Assembly members,[2] as well as non-governmental organisations working in the field of the protection of human rights and the fight against corruption. This decision is in conformity with the position of the Committee on Rules of Procedure, Immunities and Institutional Affairs, to which the matter had been referred by the Bureau on 23 January, as it appear in the declaration adopted by the committee on 26 January.
  1. The Bureau instructed the Secretary General of the Parliamentary Assembly to “prepare a memorandum on the draft terms of reference (legal basis, composition, duration, tasks, competences)” of the independent external investigation body as proposed by the Committee on Rules of Procedure, Immunities and Institutional Affairs.
  1. It should be pointed out that the decision for the Assembly to set up a strictly external investigation body, in such a context, is an unprecedented one. Furthermore, as is the case in many national parliaments, the Assembly has thus far opted for internal parliamentary committees (ad hoc committees comprising members of the Assembly), in accordance with the means and procedures traditionally implemented by parliaments in application of their investigative powers. There was unanimous agreement, both within the Rules Committee and the Bureau of the Assembly, that this option was inappropriate to the case at hand and would not meet the many clear calls for an independent external investigation body.
  1. The aim of this memorandum is to establish the legal and operational reference framework of the investigation body,[3] which should be set up as quickly as possible.

 

  1. Statutory and regulatory framework
  1. Pursuant to Article 24 of the Statute of the Council of Europe, the Parliamentary Assembly “may with due regard to the provisions of Article 38.d,[4]establish committees or commissions to consider and report to it any matter which falls within its competence under Article 23, to examine and prepare questions on its agenda and to advise on all matters of procedure.
  1. This was the case for the “Commission of Eminent Statesmen”, known as the “Colombo Commission”, established by the Assembly through Recommendation 994 (1984) on the future of European co-operation. This Commission, tasked with working out future prospects for European co-operation “beyond the present decade”, comprised eight eminent European figures from various member states serving in individual capacity.
  1. Accordingly, the Assembly has the authority to establish an independent investigation body, whose terms of reference must be approved by the Assembly (in the framework of the Progress Report of the Bureau and the Standing Committee).[5]

 

  1. Draft terms of reference of the independent external investigation body[6]

3.1       Title and length of the term of office

  1. The Assembly decides to set up an independent external investigation body to look into allegations of corruption within the Assembly.
  1. It shall begin its duties with effect from the appointment of its members and its duties shall terminate on the submission of its final report, or at the latest on 31 December 2017. The Bureau of the Assembly may extend the investigation body’s terms of reference, if need be.

3.2       Purpose

  1. The purpose of the investigation body is to carry out a detailed inquiry into the allegations of corruption and fostering of interests made against certain members or former members of the Assembly, to examine the practical functioning of the Assembly in tis various activities (including, but not restricted to part-sessions, committee and sub-committee meetings, rapporteur missions, election observation missions and participation in various events) and its decision-making mechanisms in order to:

–           verify whether there are any forms of individual conduct by members of the Assembly or former members of the Assembly which have not respected the provisions of the Code of Conduct for members of the Parliamentary Assembly and other relevant codes of conduct;

–           identify any practices contrary to the Assembly’s ethical standards, and determine the extent thereof;

–           establish, in light of these findings, whether there is sufficient proof to take action against members of former members of the Assembly, pursuant to paragraphs 19 and 20 of the Code of Conduct for members of the Parliamentary Assembly;

–           draw up recommendations on the measures to be implemented to rectify the shortcomings and fill the gaps in the Assembly’s ethical framework.

 

3.3       Composition 

  1. The investigation body shall comprise three members, independent senior figures, from institutions enjoying the highest moral reputation, having proved and acknowledged professional competence, expertise and experience in connection with the mission of the investigation body (such as ethics office, financial auditor, fraud examiner, legal processional having server as an investigator, prosecutor, judge or expert in procedures for monitoring ethical standards).
  1. Members must have experience of parliamentary functioning and, if possible, knowledge of the functioning of the Council of Europe.
  1. Members are appointed by the Bureau of the Assembly, which shall seek a suitable balance of skills and knowledge – and wherever possible a gender balance. These appointments are submitted to the Assembly for ratification. Once appointed, members cannot be dismissed.
  1. A vacancy caused by resignation or death shall be filled for the remainder of the term of office by the Bureau of the Assembly, subject to ratification of the appointment by the Assembly.

 

3.4       Procedure and competence

  1. The investigation body shall decide on its mode of operation, its working methods and the procedures required to enable it to fulfil its mission, in keeping with the legal and regulatory framework of the Council of Europe.
  1. The investigation body shall gather and make use of all relevant information and all documentary, testimonial and material evidence necessary for the fulfilment of its mission. It may, in particular:

–           summon anyone, in particular any member or former member of the Assembly and any member of the Assembly secretariat, to give evidence,

–           hear any witness wishing to be heard by the investigation body,

–           request the assistance of any national authority of a member state,

–           have access to or request the provision of any document it deems relevant for its investigation, irrespective of its form or medium – printed, manuscript, electronic, photographic, audio/video recording – or its nature – public or private.

  1. The investigation body shall have no jurisdictional competence. It may decide to transmit the information it has gathered to any national judicial authorities, on official request, in the context of ongoing criminal investigations or proceedings, in keeping with the legal and regulatory framework of the Council of Europe.
  1. The work of the investigation body shall enjoy the utmost confidentiality.
  1. The investigation body shall report back to the Bureau of the Assembly, presenting a final report. This report shall be made public. The investigation body may decide that parts of this report shall remain confidential.
  1. The working languages of the investigation body shall be the two official languages of the Organisation.
  1. The investigation body shall sit in Strasbourg (at the seat of the Council of Europe) and may, in the exercise of its mission, travel to any member state.
  1. In drafting its recommendations, the investigation body shall refer to the ethical standards in force in the Assembly and shall take account of the case-law of the European Court of Human Rights and the work of the Group of States against Corruption (GRECO), MONEYVAL and the Venice Commission.

 

3.5       Status of the investigation body 

  1. The members of the investigation body shall serve in an individual capacity, independently of their national obligations.
  1. In the exercise of their duties, the members of the investigation body shall enjoy the privileges and immunities granted to experts of the Council of Europe (applicable under Article 2 of the Protocol to the General Agreement on Privileges and Immunities (ETS No. 10)).[7] Council of Europe member states are called upon to facilitate the mission of the investigation body and, in particular, guarantee the freedom of movement of its members within their respective territory.
  1. Privileges and immunities are granted to the members of the investigation body in the interests of the Council of Europe, not for their personal benefit, in order to enable them to carry out their duties in an independent and efficient manner.

 

3.6       Rights and obligations

  1. Pursuant to paragraph 21 of the Code of Conduct for members of the Parliamentary Assembly, the members and honorary members of the Assembly shall undertake to co-operate fully within the investigation body, in the exercise of its mission and at every stage of its investigation. They shall be required to provide any information demanded of them and any document in their possession.
  1. Staff of the Council of Europe Secretariat, including the Assembly secretariat, shall be covered, from the point of view of whistle-blowing, by the provisions of Rule No. 1327 of the Secretary General of the Council of Europe of 10 January 2011 on awareness and prevention of fraud and corruption.[8]
  1. The protection recognized by the above mentioned Rule No. 1327 shall apply to any witness heard by the investigation body who, although they are not Council of Europe Secretariat members, participate in the Council of Europe’s activities, wherever they may be held – in particular trainees, experts, consultants.
  1. The rules governing the access to, holding of and exploitation of Council of Europe documents apply to the investigation body. The Secretary General of the Council of Europe is called upon to facilitate the mission of the investigation body by putting at its disposal the documents, of any kind, which the investigation body believes are necessary. The investigation body shall make use of confidential or restricted documents only if they are directly related to the investigation it is tasked with.
  1. In its final report the investigation body shall mention any refusal to co-operate, or any refusal to disclose information or to give access to or transmit any document necessary to carry out its duties. In case of non-cooperation or insufficient cooperation, members or honorary members of the Assembly would be liable to the sanctions provided for by the Code of Conduct for members of the Parliamentary Assembly.

 

  1. Means and material conditions of operation of the independent investigation body
  1. The Secretary General of the Parliamentary Assembly shall ensure that the investigation body is provided with the administrative and financial resources required to fulfill its mission and covering all operating costs of the investigation body and its secretariat (wages, fees, per diem, travel expenses in accordance with the rules applicable to Council of Europe official journeys, insurance).
  1. The investigation body shall be assisted by a secretariat with knowledge and expertise in the functioning of the Council of Europe, that is however independent of the Parliamentary Assembly.
  1. The premises made available to the investigation body shall ensure a working environment guaranteeing confidentiality, security and calm.

 

  1. Conclusions
  1. The Bureau of the Assembly is invited to consider the above proposals and:

–           adopt the draft terms of reference of the investigation body, as it appears in Part 3. This must be ratified by the Assembly, in the framework of the Progress Report of the Bureau and the Standing Committee;

–           instruct the Secretary General of the Parliamentary Assembly to hold private talks with relevant institutions/ senior figures likely to accept the mission assigned to the investigation body, and to come up with proposals on the composition of the investigation body at the next Bureau meeting;

–           instruct the Secretary General of the Parliamentary Assembly to guarantee the investigation body the resources required to ensure its proper functioning, in accordance with the stipulations contained in Part 4 and, to this end, make provisions in the Assembly budget for the appropriations necessary for the functioning of the investigation body, and if need be, in accordance with Article 38.d. of the Statute of the Council of Europe, ask the Secretary General of the Council of Europe to allocate a specific budget for the investigation body.

  1. The success of the independent investigation body’s mission shall rest on the full co-operation of the members and former members of the Assembly, and on that of the staff of the secretariat of the Council of Europe, in particular of the Assembly. Having regard to the rights and obligations of staff members and the guarantees conferred upon them by their status, it is essential to notify the Secretary General of the Council of Europe of these terms of reference. Council of Europe staff members are responsible to the Secretary General, pursuant to Article 2 of the Staff Regulations, and the latter shall therefore be invited to formally impose on the staff members a duty of co-operation with the investigation body.
  1. The mission of the independent investigation body may also require the full co-operation of the national authorities of certain member states – national parliaments, Ministries of Foreign Affairs and of Justice, judicial services, etc. Accordingly, the Committee of Ministers should be informed of the arrangements put in place by the Assembly and be invited to adopt a Resolution in which it would officially call on the member states to support and facilitate the mission of the investigation body, to pledge to fully co-operate with the investigation body, in particular to guarantee the freedom of movement of its members within the territory on of their respective state, and to ensure that any witness will be afforded legal protection at national level.

 

 

[1] Parliamentary delegations of Switzerland on 17 January, Luxembourg on 24 January, Denmark, Estonia, Finland, Latvia, Lithuania, Norway and Sweden in a joint letter on 25 January, Belgium, the Netherlands on 25 January, France, Germany on 26 January and thereafter delegations of Italy on 3 February and Austria on 17 February.

[2] See Written Declaration No. 624 on 25 January 2017 on Parliamentary Assembly integrity (Doc. 14256).

[3] The opinion of the Directorate of Legal Advice and Public International Law was sought for the purposes of drafting this memorandum.

[4] Article 38.d: „The Secretary General shall refer to the Committee [of Ministers] requests from the Assembly which involve expenditure exceeding the amount already allocated in the budget for the Assembly and its activities“.

[5] In compliance with Article 29 of the Stature and Rule 41.a of the Assembly’s Rules of Procedure, an Assembly resolution establishing committees or commissions shall require a two-thirds majority of the representatives casting a vote.

[6] The draft terms of reference are based on existing precedents for independent committees of inquiry set up over the past decade at international level.

[7] Representatives attending meetings convened by the Council of Europe (…) shall, while exercising their functions and during their journeys to and from the place of meeting, enjoy the following privileges and immunities:

  1. Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their official capacity, immunity from legal process of every kind.
  2. Inviolability for all papers and documents.
  3. The right to use codes and to receive papers or correspondence by courier or in sealed bags.
  4. Exemption in respect of themselves and their spouses from immigration restrictions or aliens registration in the State which they are visiting or through which they are passing in the exercise of their functions.
  5. The same facilities in respect of currency or exchange of restrictions as are accorded to representatives of comparable rank of diplomatic missions.
  6. The same immunities and facilities in respect of their personal baggage as are accorded to members of comparable rank of diplomatic missions.”

The representatives, however, “shall not be exempt from arrest and prosecution when found committing, attempting to commit, or just having committed an offence.” Lastly, “the immunity from legal process in respect of words spoken or written and all acts done by them in discharging their duties shall continue to be accorded, notwithstanding that the persons concerned are no longer engaged in the discharge of such duties.”

[8] https://wcd.coe.int/ViewDoc.jsp?p=&id=1728717&direct=true

Reference is also made to the Committee of Ministers Recommendation CM/Rec (2014)7 on the protection of whistleblowers.

Filed under: Council of Europe — Gerald @ 11:05 pm
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