Repealed as of 1 January 2023 by the Secretary General Decision of 30 December 2022 on entry into force of the Staff Rules implementing Staff Regulations

Instruction No. 65 of 28 June 2016 on investigations

The Secretary General of the Council of Europe;

CONSIDERING that rules should be adopted for the conduct of investigations into alleged fraud and/or corruption affecting the financial interests of the Organisation;

CONSIDERING that, although some of these investigations may result in the institution of disciplinary proceedings under Part VI of the Staff Regulations and the Regulations on disciplinary proceedings (Appendix X to the Staff Regulations), the two procedures being independent from each other – the investigations, should they be ordered, preceding the disciplinary proceedings;

HAVING REGARD to Rule No. 1327 of 10 January 2011 on awareness and prevention of fraud and corruption;

HAVING REGARD to Instruction No. 52 of 1 October 2005 – Internal Audit Charter;

HAVING REGARD to Instruction No. 47 of 28 October 2003 on the use of the Council of Europe’s Information System;

HAVING REGARD to the Regulation outlining a data protection system for personal data files in the Council of Europe (CM(89)70 of 13 April 1989);

HAVING CONSULTED the Staff Committee, in accordance with Article 5 paragraph 3 of the Regulations on staff participation (Appendix I to the Staff Regulations);

D E C I D E S:

Article 1 – Definitions

For the purpose of this Instruction:

a)       the term “investigation” means a fact-finding process aimed at establishing whether fraud and/or corruption as defined in Article 1 of Rule No. 1327 of 10 January 2011 on awareness and prevention of fraud and corruption has occurred.

b)       the term “investigation subject” means any Secretariat member^[1] who is the subject of an investigation for alleged fraud and/or corruption.

Article 2 – Follow-up to reports, and detection, of suspected fraud and corruption

1.       In line with Rule No. 1327 of 10 January 2011 on awareness and prevention of fraud and corruption and Instruction No. 52 of 1 October 2005 - Internal Audit Charter, the Director of Internal Oversight shall act upon reports or other indications of suspected fraud and/or corruption. S/he shall record and, if possible, acknowledge receipt of such reports. S/he shall then decide, on the basis of a preliminary assessment, whether there are sufficient reasons to open an investigation or not and whether to inform the Secretary General or not on the results of the preliminary assessment.

2.       The purpose of a preliminary assessment is to record and establish the basic facts (including how the allegation was reported, by whom the allegation was reported, when the allegation was reported, if the alleged facts can be substantiated, the nature of the allegation(s), the identity of the alleged wrongdoer, the identity of witnesses or other persons involved in the allegation(s), the internal rules or regulations which may have been breached). It will assess if the alleged facts can be substantiated and check what supporting documentation or other materials can be found. It aims at preserving and securing basic evidence, whether written or electronic, that might be necessary to determine whether an investigation is justified and at identifying any inconsistencies or outstanding questions.

3.       If, on the basis of a preliminary assessment, the Director of Internal Oversight does not consider the opening of an investigation justified, s/he shall inform the person(s) who made the allegation, and the person(s) concerned by the allegations if possible and appropriate.

4.       Those conducting the preliminary assessment must keep detailed records of their proceedings.

Article 3 – Opening of the investigation

1.       The Director of Internal Oversight, if s/he has knowledge of facts which may indicate that there has been fraud or corruption, may conduct an investigation in order to establish the relevant facts and make recommendations in this connection.

2.       The investigation will consist in the collection and securing of digital, documentary or other physical evidence, the gathering of testimonial evidence and information through interviews, and the production of an investigation report.

3.       The Director of Internal Oversight may also have recourse to external investigators if s/he considers that the provision of such services is required.

4.       Upon opening the investigation, the Director of Internal Oversight shall set a time-limit for the completion of the investigation (of up to three months), which s/he may extend in duly justified cases.

5.       The Secretary General and, where necessary, the head of the Major Administrative Entity concerned shall be informed by the Director of Internal Oversight of the opening of such an investigation and the time-limit set, including any possible extension(s), for its completion. The information provided shall be limited to the nature of the investigation and Major Administrative Entity involved without disclosing the identity of the investigation subject(s).

6.       Those conducting the investigation must keep detailed records of their proceedings.

Article 4 – Conflict of interest

1.       No Secretariat member, including the Director of Internal Oversight, may be instructed to conduct a preliminary assessment and/or investigation into facts that may engage his or her responsibility under the disciplinary rules of the Organisation or put him/her into a conflict of interest. A Secretariat member entrusted with a preliminary assessment and/or investigation must immediately report to the Director of Internal Oversight any conflict of interest that may arise in this connection.

2.       In the case of a conflict of interest under the previous paragraph, the Director of Internal Oversight shall reassign responsibility for the preliminary assessment and/or investigation.

Article 5 – Competence of those conducting the investigation

Those conducting a preliminary assessment and/or investigation must be objective and independent. They are only accountable to the Director of Internal Oversight and may not receive instructions from any other persons in this connection.

Article 6 – Confidentiality

1.       All information or evidence gathered in the course of a preliminary assessment and/or investigation shall be collected and recorded in order to maintain a proper chain of custody.

2.       The preliminary assessment and investigation proceedings are confidential. They will only be accessible by the Director of Internal Oversight and those conducting the investigation. Depending on the outcome, access may be given to the investigation subject, the Secretary General and, where necessary, the Director of Legal Advice and Public International Law (“the Legal Adviser”).

3.       Secretariat members involved in a preliminary assessment or investigations who disclose information obtained in this context may be subject to a disciplinary procedure.

Article 7 – Staff co-operation

1.       Those conducting the preliminary assessment or investigation may interview any Secretariat member in order to answer questions related to the facts they seek to establish. A Secretariat member interviewed by those conducting the preliminary assessment or investigation has a duty to fully co-operate and disclose all information in his or her possession that may be of relevance. However, s/he must be given adequate information about the object of the investigation.

2.       The Director of Internal Oversight shall report to the Secretary General in the investigation report details of any Secretariat member who has not co-operated with an investigation including the impact on the investigation of any non-co-operation. However, Secretariat members may not be subjected to sanctions for failing to reply to questions that may result in self-incrimination.

Article 8 – Rights of the investigation subject

1.       Once the Director of Internal Oversight has informed the Secretary General of the opening of the investigation, s/he must inform the investigation subject of the opening of the investigation without undue delay, taking due care that the securing of evidence is not jeopardised. The investigation subject will be informed in writing of the nature of the allegations as well as the names of the persons who will conduct the investigation, the procedure to be followed and the time-limit for the investigation. In line with Article 5 paragraph 2 of Rule No. 1327 of 10 January 2011 on awareness and prevention of fraud and corruption, the identity of the person(s) who made the allegation(s) will only be disclosed if expressly authorised by him/her/them.

2.       When interviewed, the investigation subject has the right to be accompanied by a Secretariat member of his/her choice (provided that the Secretariat member of his/her choice is not directly concerned by the investigation and/or there is a conflict of interest).  The investigation subject shall be given the opportunity to explain his/her conduct, to identify witnesses or other relevant evidence and present information. S/he may not be submitted to oppressive or misleading questioning and should not be offered any inducement or subjected to any threats. The investigation subject and, where applicable, the accompanying Secretariat member, shall be invited to sign the record of the interview and add any comments they may consider appropriate to make. If the investigation subject does not agree with the record of the interview, the reasons for this will be documented.

Article 9 – Access to Council of Europe resources for investigation purposes

1.       Those conducting the investigation shall have access to all of the Organisation’s records, documentation (in whatever format) and physical property (including digital equipment), which are related to the facts they are seeking to establish and considered necessary to carry out an objective and effective investigation. They may visit any premises of the Organisation as necessary.

2.       They may also exercise, for the same purposes and in cooperation with the Directorate of Information Technology (“the DIT”), the powers described in Article 4 of Instruction No. 47 of 28 October 2003 on the use of the Council of Europe’s Information System and carry out digital forensic operations in accordance with the principles of necessity and proportionality. Checks will solely be carried out on the basis of searches by key words related to the suspected fraud and/or corruption. Private emails (in particular labelled as ‘private’, ‘personal’, etc.) should not be subject to digital forensic operations unless the aforementioned checks result in the identification of files connected to the subject of the investigation. The Director of Internal Oversight shall inform the investigation subject, within the legitimate needs of the investigation, of the reasons for the access and the data accessed. The Director of Internal Oversight shall invite the investigation subject to be present during the opening of electronic data files. Absence of the duly invited investigation subject shall not prevent access to the data concerned. In this situation, the DIT Information Security Officer shall proceed with the opening of the electronic data files in the presence of the Director of Internal Oversight or his/her representative.

Article 10 – Completion of the investigation

1.       The investigation must be concluded within the time-limit set by the Director of Internal Oversight under Article 3, paragraph 4 above. Otherwise, it will be considered that the facts into which the investigation has been conducted do not disclose a breach of the Organisation’s internal rules.

2.       At the end of the investigation, those conducting the investigation will determine if there is sufficient evidence to substantiate a report on possible fraud and/or corruption. If the evidence is not sufficient, the Director of Internal Oversight will issue a closure report to the Secretary General. The closure report, which shall cover all aspects of the investigation and justify its conclusions, will as far as possible not contain any information that could be used to establish, directly or indirectly, the identity of individuals. The Director of Internal Oversight will also inform the investigation subject in writing of the closure of the investigation and provide him/her with summary conclusions of the closure report. The person who made the allegation(s) and, where appropriate, the head of the Major Administrative Entity concerned will be informed of the closure of the investigation.

3.       If the evidence is sufficient, the Director of Internal Oversight will draw up an investigation report and issue it to the investigation subject for comments. The investigation report shall set out the investigation activities, the evidence, an analysis of the evidence, any relevant information provided by the investigation subject, fact-based conclusions in relation to the existence or otherwise of fraud and/or corruption, the financial loss and matters relating to the discharge of professional duties. The report, comments from the investigation subject and the Director of Internal Oversight’s recommendations will be sent to the Secretary General. The identity of the person(s) who made the allegation(s) and of the witness(es) will, notwithstanding Article 11.4, only be disclosed to the investigation subject if expressly authorised by the persons concerned.

4.       The Director of Internal Oversight, in consultation with the Legal Adviser, may recommend to the Secretary General that the case be referred to the relevant national authorities in cases where legal action is required.

Article 11 – Action following the investigation

1.       The Secretary General shall act on the recommendations referred to in Article 10 within six weeks. Otherwise, it will be considered that no action will be taken.

2.       If the Secretary General, following an investigation, decides to transmit a case before the Disciplinary Board, s/he shall also transmit to the Board the investigation report together with the report provided for under Article 2 paragraph 2 of the Regulations on disciplinary proceedings (Appendix X to the Staff Regulations).

3.       If the Secretary General decides not to take any action against an investigation subject, s/he shall inform him/her directly in writing.

4.       In line with Article 7 of Rule No. 1327 on awareness and prevention of fraud and corruption, the transmission of unfounded allegations which the reporting person knows are incorrect are themselves considered as a breach of internal rules and might lead to disciplinary action against the reporting Secretariat member and the disclosure of his/her identity to the Secretary General.

Article 12 – Records

1.       At the end of the preliminary assessment not giving rise to an investigation, the file with the records of the proceedings remains confidential and shall be kept in a secure digital and physical location in the Directorate of Internal Oversight for a maximum period of 5 years. They shall be anonymised by the Directorate of Internal Oversight as soon as a personally identifiable format is no longer necessary.

2.       In line with the Council of Europe archival policy, the preliminary assessment, closure and final investigation reports will be kept for a maximum period of 10 years and all related working papers and interview records for a maximum period of 5 years. The Directorate of Internal Oversight shall anonymise all these documents as soon as a personally identifiable format is no longer necessary.

3.       Following an investigation, the Secretary General shall decide, in line with Article 46 of the Staff Regulations, if and which documents should be included in the Secretariat member’s personal administrative file and for how long they should be included, and the Secretariat member shall be informed accordingly.

Article 13 – Reopening of the investigation

1.       The Director of Internal Oversight may re-open an investigation should credible new evidence arise. 

2.       In the event of an investigation being re-opened, the procedure followed would be the same as that described in Articles 3 to 11 above.

Article 14 – Follow-up to a preliminary assessment or investigation

In line with Instruction No. 52 - Internal Audit Charter, the Director of Internal Oversight, as a follow-up to a preliminary assessment or investigation, may inform senior management of any risks identified, internal control weaknesses and/or other deficiencies observed and issue recommendations thereon.

Article 15 – Reporting

1.       The Director of Internal Oversight shall keep an anonymised register of allegations of fraud and corruption, accessible only by the External Auditor.

2.       The Director of Internal Oversight shall report annually to the Secretary General and to the Oversight Advisory Committee on the volume and nature of such allegations. This summary report will not reveal the identity of individuals.

Article 16 – Entry into force

This Instruction shall enter into force on the day of its signature by the Secretary General.

Strasbourg, 28 June 2016

The Secretary General,

Thorbjørn JAGLAND