Documents considered by the Committee on 18 March 2015 - European Scrutiny Contents


28 Common Security and Defence Policy: EULEX Kosovo: allegations of corruption

Committee's assessment Politically important
Committee's decisionCleared from scrutiny (decision reported on 3 September 2014); further information requested
Document detailsCouncil Decision amending the budget of the European Union Rule of Law Mission in Kosovo (EULEX KOSOVO) (36259)
Legal baseArticles 28, 42(4) and 43(2) TEU; unanimity
DepartmentForeign and Commonwealth Office
Document number(36259), —

Summary and Committee's conclusions

28.1 EULEX Kosovo was established in 2008 to provide support to Kosovo's fledgling judiciary, police and customs institutions. It also has an executive mandate to investigate serious crime including high-level corruption and war crimes. The extension of its mandate until June 2016 reflected continued difficulties with the Rule of Law.

28.2 However, some progress having been made, EULEX is to become a smaller and more focused presence, concentrating on capacity building throughout Kosovo, security and the implementation of agreements reached in the Belgrade-Pristina dialogue in the north; and beginning to phase out its executive functions in the justice sector as part of a handover of responsibility to Kosovo, while completing its work on ongoing serious cases. [74]

28.3 In September 2014, the Minister for Europe (Mr David Lidington) confirmed that Kosovo had agreed, in principle, to create a special court regarding EULEX's Special Investigative Taskforce.[75] EULEX would have an important role in assisting Kosovo with the operation of this court, including discussions with a potential host state concerning the relocation of judicial proceedings, in order to prosecute and adjudicate criminal charges arising from SITF investigations. We had expected to hear from the Minister in the New Year about how these changes were working out.[76]

28.4 In the meantime, on 6 November, he wrote concerning recent allegations of corruption within EULEX's ranks made by a UK national seconded to EULEX as a prosecutor, and "secondary allegations" relating to "EULEX's handling of this issue and of the UK staff member concerned". He noted that the UK, along with other Member States, had quickly made it clear to the European External Action Service (EEAS) that a thorough response was needed, which not only investigated the allegations but also ensured that public confidence was maintained in EULEX's handling of such cases; that the EU High Representative for Foreign Affairs and Security Policy (HR; Federica Mogherini) had announced that an external investigation would take place into the matter; and that the issue was discussed by the European Parliament's Foreign Affairs Committee on Monday 3 November. Further details are set out in our previous Report.

28.5 Subsequent to the Minister's letter, the HR announced that she had appointed Mr. Jean Paul Jacqué as independent expert to review EULEX Kosovo mandate implementation with a focus on the handling of the corruption allegations, describing him as "a distinguished law professor with over 40 years of experience", adding that "his tenure as Director of the Council Secretariat legal services offers him a unique expertise and perspective to review these allegations" and saying that she had asked Mr. Jacqué to "revert to me within 4 months with his report and his recommendations".

28.6 The Minister undertook to "update the Committee in due course as the situation develops". In the first instance, we asked:

·  if he was satisfied with the steps announced by the High Representative: in particular, whether the appointment of someone with M. Jacqué's background, and a four-month mandate, constituted the "thorough response" he was seeking, in terms of independence, timeliness and the requirement for "transparency and much-needed external scrutiny" that he rightly highlighted;

·  what had transpired from the contacts made by his officials with EULEX and the EEAS, in view of the prosecutor making the allegations and some of the individuals named in secondary allegations being UK nationals seconded to EULEX by the FCO; and

·  more generally, whether he in any way shared the reservations some seemingly had about the real effectiveness of this costly Mission.

28.7 We also asked what the state of play was on the establishment of a special court, in order to prosecute and adjudicate criminal charges arising from investigations by EULEX's Special Investigative Taskforce.

28.8 The Minister said:

·  it was too soon to say how the investigation would proceed or what its conclusions would be. But it was being conducted by someone with no connection to EULEX. There were also likely to be complementary investigations by the European Ombudsman and the EU's Anti-Fraud Office (OLAF). He was confident that, together, these investigations were an adequate response "for the time being"; he looked forward to their findings, and had asked officials to monitor developments closely;

·  in relation to matters affecting UK secondees, he and his officials had focused their efforts on ensuring that the welfare and rights of FCO staff are respected and that due process is followed on any disciplinary matters, with EULEX remaining in charge of pursuing any appropriate investigations. Once again, the various EU processes in train had yet to reach a conclusion, so it was too soon to say what the consequences for the UK might be; also, it would not be appropriate to comment in detail on individual cases. But officials were in regular contact with EULEX and with FCO staff seconded to the mission, and are prepared to provide assistance as appropriate;

·  EULEX had been in place for many years and had made significant progress on a number of issues, such as building up the Kosovo police, dealing with cases of serious crime, and facilitating implementation of the 19 April agreement between Serbia and Kosovo on matters concerning customs and border controls. As well as the €20 million cut to EULEX's budget for its new mandate beginning in October, UK officials had also secured an agreement that the mission must work towards a handover of responsibilities to the Kosovan authorities as it headed towards its mandate end date of June 2016, which "sets us on the right track" for further downsizing if the appropriate conditions could be met. Depending on how these plans proceeded, they would "go some way" towards addressing concerns about ongoing cost-effectiveness;

·  there was no further progress to report at this stage in relation to the establishment of a special court: the prosecution's work in building its case continues, but establishment of an out-of-country court, which relied on the Kosovo Assembly passing a number of laws, had been stymied by the political impasse following the June parliamentary elections; however, as there were "now signs that Kosovo will form a government shortly", he expected progress would "resume in due course".

Our assessment

28.9 Though the Minister was somewhat guarded in his response concerning the steps announced by the High Representative, we agreed that it was too soon to draw any conclusions. But a month had passed since the HR's announcement. We therefore asked the Minister to write again in two months' time on:

·  both the Jacqué investigation and the others that he anticipated, updating us on how matters stood and whether they had fulfilled his criteria, viz., a "thorough response" in terms of independence, timeliness, transparency and "much-needed external scrutiny";

·  the matters affecting UK secondees, including the UK national seconded to EULEX as a prosecutor who made the original allegations;

·  the establishment of the special "out of country" court, which was central to the effective execution of the remainder of the mission's mandate and indicative of the commitment of the Kosovar political establishment to its work.

28.10 In the meantime, we again drew these developments to the attention of the House because of the degree of interest in developments in Kosovo.[77]

28.11 The Minister now says about the corruption allegations:

·  the Jacqué investigation report, initially planned for the end of January, is now not expected until March;

·  he and his officials are "continuing to encourage the EEAS to release the report as soon as it is possible for a thorough investigation to be completed";

·  the European Ombudsman has concluded her own investigation, but has decided not to comment on the issue until after any criminal investigation and the Jacqué investigation have been completed;

·  there have been no further complaints or concerns raised by UK secondees in relation to the corruption allegations;

·  while he cannot comment on individual cases, he can assure the Committee that "my officials are in regular contact with EULEX and the FCO staff seconded to the mission and, where appropriate, with former staff facing ongoing issues as a result of the corruption allegations".

28.12 With regard to the establishment of a special court, the Minister says:

"in early January the EEAS met with Kosovo Deputy Prime Minister and Minister of Justice Hajredin Kuçi to discuss the proposed constitutional and legislative amendments necessary to enable court relocation to a third state. These amendments have been agreed at a technical level. We understand the Minister will now be submitting them to the Kosovo Assembly and for consideration by the Constitutional Court, a process taking 30-60 days. By April, we anticipate that the EEAS will revert to the Political and Security Committee and propose a Council Decision to approve a new budget and any necessary modifications to the EULEX O Plan to allow EULEX to continue to play a supporting role in the arrangements between Kosovo and the third state (EULEX's current budget expires in June). From there, the implementation and ratification of a formal host state agreement between Kosovo and a third state, which is essential for a trial to begin, could take twelve months to complete. We may, however, see early logistical steps for the establishment of the court to start to be taken in parallel to this process."

28.13 We would like the Minister to write to us again, once the Jacqué investigation reports. We would like him to summarise its findings. We would like him then to say if he regards it as a "thorough response" in terms of independence, timeliness, transparency and "much-needed external scrutiny"; and if so, to illustrate how. We would like him to outline what further steps are then due to take place, what criminal investigations are under way or what might in other ways be reasonably holding up publication of the European Ombudsman's own investigation. We would like his general views on the general satisfactoriness of the process overall.

28.14 We would also like to know what the position then is with regard to the UK national seconded to EULEX as a prosecutor who made the original allegations.

28.15 With regard to the proposed special out-of-country court, we look forward to hearing more about what happens between now and then when he submits the next Council Decision on EULEX Kosovo for scrutiny. At that time, we would like his assessment of the response of the Kosovar political establishment and what it means for the prospects for taking further forward Kosovo's Stabilisation and Association Agreement.[78]

28.16 In the meantime, we again draw these developments to the attention of the House because of their importance to the development of the EU's policy in the western Balkans.

Full details of the document: Council Decision amending and extending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo (EULEX KOSOVO): (36259), —.

Background

28.17 The draft Council Decision concerns an 8-month budget of €55,820,000, to cover the period 15 October 2014 to 14 June 2015, and thus fund the first year of the latest, two-year mandate.

28.18 Since then, as noted above, the mission has been enveloped in allegations of corruption within EULEX's ranks made by a UK national seconded to EULEX as a prosecutor, and "secondary allegations" relating to "EULEX's handling of this issue and of the UK staff member concerned". The Minister was asked in our most recent Report to respond to a number of questions (also see above).[79] His response is summarised above and detailed in our most recent previous Report.[80]

The Minister's letter of 26 February 2015

28.19 The Minister responds as follows:

"Firstly, in relation to the Jacqué investigation, the report initially planned for the end of January is now not expected until March. We are continuing to encourage the EEAS to release the report as soon as it is possible for a thorough investigation to be completed. The European Ombudsman has concluded her own investigation, but has decided not to comment on the issue until after any criminal investigation and the external investigation led by Mr Jacqué have been completed.

"In relation to matters affecting UK secondees, I can confirm that there have been no further complaints or concerns raised by UK secondees in relation to the corruption allegations. While I cannot comment on individual cases, I can assure the Committee that my officials are in regular contact with EULEX and the FCO staff seconded to the mission and, where appropriate, with former staff facing ongoing issues as a result of the corruption allegations.

"Finally, in relation to the establishment of a special court, in early January the EEAS met with Kosovo Deputy Prime Minister and Minister of Justice Hajredin Kuçi to discuss the proposed constitutional and legislative amendments necessary to enable court relocation to a third state. These amendments have been agreed at a technical level. We understand the Minister will now be submitting them to the Kosovo Assembly and for consideration by the Constitutional Court, a process taking 30-60 days. By April, we anticipate that the EEAS will revert to the Political and Security Committee and propose a Council Decision to approve a new budget and any necessary modifications to the EULEX O Plan to allow EULEX to continue to play a supporting role in the arrangements between Kosovo and the third state (EULEX's current budget expires in June). From there, the implementation and ratification of a formal host state agreement between Kosovo and a third state, which is essential for a trial to begin, could take twelve months to complete. We may, however, see early logistical steps for the establishment of the court to start to be taken in parallel to this process."

Previous Committee Reports

Twenty-fifth Report HC 219-xviv (2014-15), chapter 14 (10 December 2014), Twentieth Report HC 219-xix (2014-15), chapter 16 (19 November 2014) and Ninth Report HC 219-ix (2014-15), chapter 43 (3 September 2014): also see (36004), —: Fiftieth Report HC 83-xlv (2013-14), chapter 15 (14 May 2014) and the Reports referred to therein; also see Third Report HC 219-iii (2014-15), chapter 11 (18 June 2014).





74   See (36004), -: Fiftieth Report HC 83-xlv (2013-14), chapter 15 (14 May 2014) for full details of the two-year mandate extension. Back

75   Special Investigative Task Force (SITF): a part of EULEX since 2011, which has been investigating the allegations in the 2010 Council of Europe Marty Report of organ trafficking and other serious crimes committed immediately after the 1999 conflict. Back

76   See Ninth Report HC 219-ix (2014-15), chapter 43 (3 September 2014) and its Annex for further background and the detailed budget; also the earlier Reports cited at the end of this chapter of our Report. Back

77   See Twenty-fifth Report HC 219-xviv (2014-15), chapter 14 (10 December 2014). Back

78   The Stabilisation and Association Agreement (SAA) constitutes the framework of relations between the European Union and the Western Balkan countries for implementation of the Stabilisation and Association Process. The agreements are adapted to the specific situation of each partner country and, while establishing a free trade area between the EU and the country concerned, they also identify common political and economic objectives and encourage regional co-operation*. In the context of accession to the European Union, the agreement serves as the basis for implementation of the accession process. In 2008 the EU repeated its willingness to assist the economic and political development of Kosovo "through a clear European perspective". The EU and Kosovo chief negotiators initialled the SAA between the EU and Kosovo in Brussels on 25 July 2014. Back

79   See Twentieth Report HC 219-xix (2014-15), chapter 16 (19 November 2014). Back

80   See Twenty-fifth Report HC 219-xviv (2014-15), chapter 14 (10 December 2014). Back


 
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Prepared 27 March 2015