Documents considered by the Committee on 21 July 2015 - European Scrutiny Contents


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

Committee's assessment Politically important
Committee's decisionNot cleared from scrutiny; further information requested
Document detailsCouncil Decision amending the budget of the European Union Rule of Law Mission in Kosovo (EULEX KOSOVO)
Legal baseArticles 28, 42(4) and 43(2) TEU; unanimity
DepartmentForeign and Commonwealth Office
Document number(36919), —

Summary and Committee's conclusions

29.1 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.

29.2 Nonetheless, 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.[ 276]

29.3 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.[ 277] 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. Our predecessors had expected to hear from the Minister in the New Year about how these changes were working out.[ 278]

29.4 In the meantime, on 6 November 2014, he wrote concerning 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.

29.5 Subsequent to the Minister's 6 November 2014 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".

29.6 The previous Committee subsequently asked the Minister for Europe for further information about this process. Further details are set out in our predecessors' 19 November[ 279] and 10 December 2014 Reports.[ 280] The Minister's responses are summarised below and detailed in their most recent previous Report.[ 281]

29.7 This further draft Council Decision proposes a budget of €77,000,000 to cover EULEX Kosovo's operations in the period 14 June 2015 to 15 June 2016 (see below and the Annex to this chapter of our Report for details).

29.8 The draft Council Decision raises no questions in and of itself.

29.9 We accept that, with no budget beyond 14 June 2015, the Minister was obliged to override scrutiny.

29.10 But we are disappointed that he has failed to answer any of our predecessors' most recent requests concerning the Jacqué investigation and progress on establishing the special court. Their requests were clear cut:

¾  once the Jacqué investigation had produced its report:

·  to summarise its findings, say if he regarded it as a "thorough response" in terms of independence, timeliness, transparency and "much-needed external scrutiny" and, if so, to illustrate how;

·  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;

·  his general views on the general satisfactoriness of the process overall;

·  what the position then is with regard to the UK national seconded to EULEX as a prosecutor who made the original allegations.

¾  with regard to the proposed special out-of-country court, hearing more, when he submitted the next Council Decision on EULEX Kosovo for scrutiny, about subsequent developments and his assessment at that time of the response of the Kosovar political establishment and what that meant for the prospects for taking further forward Kosovo's Stabilisation and Association Agreement. [ 282]

29.11 Instead, all the Minister does is to refer us to a "readacted (sic) version of the report" on the EU Commission website.

29.12 We therefore ask the Minister to respond fully to our predecessors' requests within the next ten working days. In the meantime, we shall retain the Council Decision under scrutiny.

Full details of the document: Council Decision amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo (EULEX KOSOVO): (36919), —.

Background

29.13 The Minister undertook to "update the Committee in due course as the situation develops". In the first instance, our predecessors 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.

29.14 The previous Committee 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.

29.15 The Minister said:

·  it was too soon to say how the investigation will proceed or what its conclusions will be. But it is being conducted by someone with no connection to EULEX. There are also likely to be complementary investigations by the European Ombudsman and the EU's Anti-Fraud Office (OLAF). He is confident that, together, these investigations are 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 predecessors' assessment

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

·  both the Jacqué investigation and the others that he anticipated, updating the Committee 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.[ 283]

29.17 The Minister subsequently said about the corruption allegations:

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

·  he and his officials were "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 had concluded her own investigation, but had decided not to comment on the issue until after any criminal investigation and the Jacqué investigation had been completed;

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

·  while he could comment on individual cases, he assured 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".

29.18 With regard to the establishment of a special court, the Minister said:

"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."

Our predecessors' further assessment

29.19 The previous Committee asked the Minister to write again, once the Jacqué investigation reported: to summarise its findings; to say if he regarded it as a "thorough response" in terms of independence, timeliness, transparency and "much-needed external scrutiny"; and if so, to illustrate how; to outline what further steps were then due to take place, what criminal investigations were under way or what might in other ways be; and to provide his general views on the general satisfactoriness of the process overall.

29.20 Our predecessors also asked to know what the position then was with regard to the UK national seconded to EULEX as a prosecutor who made the original allegations.

29.21 With regard to the proposed special out-of-country court, our predecessors asked the Minister, when he next submitted a Council Decision on EULEX Kosovo for scrutiny, for his assessment of the response of the Kosovar political establishment and what that might mean for the prospects for taking further forward Kosovo's Stabilisation and Association Agreement.[ 284]

The draft Council Decision

29.22 This relates to a proposed budget of €77,000,000 to cover EULEX Kosovo's operations in the period 14 June 2015 to 15 June 2016.

29.23 In his Explanatory Memorandum of 8 June 2015, the Minister for Europe (Mr David Lidington) says changes in mission structure have been agreed, which will enable it to "reduce in size intelligently and operate effectively". EULEX will focus on capacity building throughout Kosovo, on security and on the implementation of agreements reached in the Belgrade-Pristina dialogue in the north of the country. But the mission will start to draw down its executive functions in the justice sector as part of a phased handover of responsibility to Kosovo, while completing its work on ongoing serious criminal cases. Discussions on what will remain after June 2016 continue in Brussels. We have argued for transition-planning to begin as soon as possible, and for thinking to develop on the type of capacity-building and specific executive tasks which should continue after June 2016.

29.24 With regard to the Jacqué report, the Minister says:

"the report by Jean-Paul Jacqué into the handling of corruption allegations at EULEX issued on 14 April. A readacted (sic) version of the report is available on the EU Commission website."

29.25 Concerning the Special Investigative Task Force, which has been investigating the allegations of abuses committed by members of the Kosovo Liberation Army during and after the 1999 conflict highlighted in the 2010 Marty Report, the Minister says:

"Kosovo has agreed, in principle, to a special court to hear any trials arising from the SITF's investigations. As previously agreed, we have supported the establishment of the SITF as an EU process. EULEX will have an important role in assisting Kosovo with the operation of this court and the proposed EULEX budget for June 2015-June 2016 covers SITF funding."

29.26 With regard to the proposed €77,000,000 budget for the period of 15 June 2015 to 14 June 2016, the Minister says:

"This follows the eight-month transition budget of €55,820,000 that expires on 14 June 2015. The proposed budget is less than the current eight-month budget when extrapolated to one year and delivers the overall savings we expected."

29.27 The Minister provides an overview of the proposed budget within the table reproduced at Annex 1 of this chapter of our Report, which contains a breakdown of the preceding eight-month budget. The Minister says that, for ease of reference:

"I have also included columns which extrapolate the subhead lines of the current eight-month budget to one year and highlight the variance between the proposed budget and the current (extrapolated) budget."

29.28 The Minister also notes that:

"The UK contributes a proportion to the pre-agreed CFSP budget, not the individual programmes within it. Funds for EULEX's budget will be found within existing resources in the CFSP budget, so this proposal does not present additional costs to the UK."

29.29 In a separate letter of the same date, the Minister:

¾  says that he believes the budget delivers value for money, and that his officials will continue to keep close track on progress and expenditure;

¾  recalls his letter of 4 March informing the Committee that the renewal of the mandate would occur during dissolution, and says:

"Were I to wait for the Scrutiny Committees to reconvene, the mission would no longer have a budget to continue its operations. This would not be in the interest of UK foreign policy. I therefore regret that I find myself in the position of having to agree to the adoption of this Council document before your Committee will have an opportunity to scrutinise it."

Previous Committee Reports

None, but see (36259), —: Thirty-seventh Report HC 219-xxxvi (2014-15), chapter 28 (18 March 2015), 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).

Annex 1: the Minister's overview of the proposed budget (figures in €)
Budget headings 15 October 2014 to 14 June 2015 2014/15 budget extrapolated to 12 months 15 June 2015 to 14 June 2016 Variance:

Proposed budget against 2014/15 (extrapolated)

1. Personnel38,245,877 57,368,815 57,337,973-30,842

(-0.05%)

2. Missions1,233,424 1,850,1362,000,200 +150,064

(+7.51%)

3. Running costs14,093,841 21,140,761 13,505,732-7,635,029

(-43.5%)

4. Capital costs1,040,249 1,560,3731,685,163 +124,790

(+8.0%)

5. Representation69,400 104,10084,000 -20,100

(-19.3%)

Total (1 to 5) 54,682,791 74,613,068
6. Contingencies1,137,208 1,705,8122,386,928 +681,116

(+40%)

Total (1 to 6) 55,820,000 83,730,000 77,000,000 -6,730,000

(-8.0%)

"- Personnel Costs - (€57,337,973):

"Personnel costs account for approximately 75% of total expenditure. Proposed expenditure represents a slight decrease against the previous budget (extrapolated). This subhead also includes staff and training costs of €4,440,808 in respect of the SITF and Court Preparation Team (CPT).

"- Missions Expenditure (€2,000,200):

"This expenditure relates to the costs incurred in implementing the mandate and includes transportation, per diems and accommodation. In comparison to 2014/15 (extrapolated) expenditure for the year from June 2015 will rise by €150,064 (7.5%).The key contributor is Daily Subsistence Allowance, which has increased to cover the costs of the SITF and CPT for Long-stay Mission in Brussels. We judge the proposed expenditure to be reasonable.

"- Running Costs (€13,505,732):

"This covers a range of costs such as transport, IT, communications and goods & services. Savings for the year from June 2015 compared to the previous budget (extrapolated) amount to around €7,635,029 (43.5%).

·  "Transport: The new budget of €3,016,051 signifies a reduction of nearly 65% on the current budget (extrapolated). The largest cost is for helicopter services (€1m). Helicopter related costs have fallen considerably, as they were €4m in the previous eight-month budget. This is because the EULEX helicopter service has been discontinued. The proposed expenditure of €1m is to cover approximately 100 hours of KFOR assets and plus any private hire costs incurred; In addition, the car fleet has been reduced to 609 from 916 vehicles in June 2014.

·  "IT running costs: This subhead covers IT warranties, parts, goods and services and maintenance of software, printers and copiers. Proposed expenditure of €1,593,041 represents a saving of approximately 5% when compared to the current budget (extrapolated).

·  "Communications: This is for GSM, landline and satellite costs, internet, maintenance and postage, and rental of hilltop sites to enable communications in the north. The new budget of €938,578 represents a saving of around 13% when compared to 2014/15 (extrapolated).

·  "Premises rent and services: This subhead covers a range of expenditure including inter alia office rents, heating, generators, air conditioning maintenance, cleaning and waste removal. EULEX has a mix of office and camp accommodation in Pristina and Mitrovica. Proposed expenditure of €4,149,841 represents a decrease of approximately 15% when compared to the current eight-month budget, when extrapolated.

·  "Security: This includes external security costs, access control systems and fire extinguishers. The proposed budget of €683,200 will generate a saving of around 6% when compared to the existing budget (extrapolated).

·  "External Assistance & Outsourced Services: This is for hiring a range of expertise which is not available within the mission. The majority of expenditure is for the SITF and CPT which require inter alia: translation services, development of an electronic court management system, IT development, court audio visual experts and forensic expertise. The budget proposes expenditure of €1,164,658 which will save approximately 20% compared to 2014/15 (extrapolated).

·  "Mandate-related operational costs: Expenditure here is for SITF witnesses and investigations, civilian protection measures, Special Prosecution Office of Kosovo (SPRK) experts, witnesses, support & expertise and small scale projects. Compared to the current budget, when extrapolated, the proposed budget of €1,149,000 for 2015/16 will be down by approximately 25%.

·  "Visibility Costs: This is for uniforms and protective clothing, high visibility items, flags, cards and publicity campaigns. Planned expenditure of €377,800 in 2015/16 represents an increase of around 19% when compared to the current budget (extrapolated). The increase is due to increased public information activity by EULEX against the background of work in the north, implementation of the April 2013 dialogue agreement between Belgrade and Pristina, transition/reconfiguration of the mission's mandate, support to Kosovo's move towards accession to the EU, and implementation of the justice system. We judge the proposed increase to be reasonable.

- "Capital Expenditure (€1,685,163): "This covers vehicles and workshop, and equipment and works for: communications, premises, medical, security, civilian protection, and equipment for SITF and CPT. Proposed spend represents an increase of just over 2% compared to the extrapolated budget for 2014/15. Notable expenditure relates to the replacement of central heating systems, new generators, installation of a sprinkler system and works on the sewerage treatment plant; SITF and CPT also require equipment (mainly ICT and software related) at a cost of €692,556. We judge this expenditure to be reasonable.

- "Representation (€84,000): "Proposed expenditure is down by 19% on the current budget when extrapolated.

- "Contingencies (€2,386,928): "The proposed 40% increase is to allow for severances and other consequences of drawing down a mission".


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

277   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

278   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

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

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

281   See (36259), -: Thirty-seventh Report HC 219-xxxvi (2014-15), chapter 28 (18 March 2015). Back

282   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

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

284   See (36259), -: Thirty-seventh Report HC 219-xxxvi (2014-15), chapter 28 (18 March 2015). Back


 
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