The SDS, NSi and SNS parliamentary groups have submitted a request to convene an emergency session of the Mandate-Election Commission, at which they would propose that the mandate of Court of Audit president Tomaž Vesel be terminated due to him performing gainful supervisory activities. According to them, the purpose of the Court of Audit Act is clear in determining the negative condition for performing the function, namely that a member may perform an incompatible activity for a maximum of three months during his term, and only if he takes office three months after the appointment, otherwise his function ceases. Tomaž Vesel started performing supervisory activities on the 6th of July 2016, which is incompatible with his professional public function, according to Article 27 of the Court of Audit Act, and he also did not obtain a permit to perform activities intended to generate income and material gain, in accordance with the fourth paragraph of Article 26 of the Integrity and Prevention of Corruption Act.
The principle of the division of power to legislative, executive and judicial branches is not intended for the institutions that hold power, but it is intended to prevent abuse of power, which is always at the expense of the people or the rights of the individual, the proponents from the SDS party wrote and explained that in its basic function, it therefore protects the individual in relation to the state. Therefore, the system of state power as a whole must operate through a system of brakes and balances, with which each individual branch of power influences and limits the other, and on the other hand, enables mutual cooperation to a certain extent. In modern constitutional systems, there are also bodies and organisations that, according to their organisational characteristics, cannot be classified as part of one of the three branches of the government. These bodies and organisations have an indisputably high degree of independence in relation to any classical branch of government in the relevant constitutional systems, and due to their constitutional functions, they have a significant influence on the functioning of the system of brakes and balances. One of these bodies is also the Court of Audit.
The independent position of a particular constitutional institution consists of the independence of the institution as a whole and of the individual independence of the members of that institution. The individual independence of the individuals is further divided into functional, organisational, and material independence. The functional aspect refers to the independence of the members of this institution in performing their work. One of the fundamental guarantees of the independence of a particular institution is the material security of its members, as the limitations associated with the incompatibility of a function make the possibility of finding additional sources of income very limited. The material independence of members is also required by the nature of their decisions and the fact that they may be exposed to various political and other pressures due to their function. Last but not least, an appropriate remuneration system is also important from the point of view of ensuring the appearance of members’ independence externally, as this strengthens public confidence in the independence of the institution. The independence of members of constitutional institutions is also a precondition for their impartiality in concrete procedures and thus for the credibility of the institution itself and public confidence in its operation.
The Court of Audit Act sets out several positive and negative conditions that members of the Court of Audit must meet in order to perform their work honestly, conscientiously and impartially. Positive conditions must be met before appointment as a member of the Court of Audit and also throughout the term in office, and negative conditions must be met either before the appointment or during the term in office.
The negative conditions that must be met throughout the term of office of a member of the Court of Audit are determined by the first paragraph of Article 16, namely, during their term of office, a member of the Court of Audit may not simultaneously:
- perform functions in a state body, local community body, political party or trade union;
- work in a state body, local community bodies, political party or trade unions;
- be a member of the body of management or supervision of a company, commercial public service, fund, institute or cooperative;
- perform any profession or gainful activity that is incompatible with the performance of a public function by law (inter alia, in accordance with the first paragraph of Article 27 of the Integrity and Prevention of Corruption Act, the member must also not perform gainful activities in economic interest groups).
In accordance with the first paragraph of Article 10 of the Court of Audit Act, a member of the Court of Audit may be dismissed early only in the following cases:
- if he submits a statement to the National Assembly to resign;
- if he has been convicted of a criminal offence punishable by deprivation of liberty;
- if he permanently loses the ability to work needed for the performance of his function;
- if he no longer meets the conditions for a member of the Court of Audit;
- if he does not act in accordance with the law and the Constitution.
The publicly available Report on the Governance of the International Football Association (FIFA) from 2016 shows that Tomaž Vesel was appointed Chairman of the Independent Audit and Compliance Committee (hereinafter referred to as the Committee), on the 6th of July 2016, the main task of which is to ensure the completeness and reliability of FIFA’s financial accounting and a review of the accounts, consolidated accounts and external auditors’ reports. As the head of the Committee, Tomaž Vesel also performs the function of the head of the Subcommittee on Compensation (hereinafter referred to as the Subcommittee), which determines the rules for determining compensation in FIFA. Tomaž Vesel received 125 thousand US dollars or approximately 103,700 euros for his six-month work in the Committee and Subcommittee. He is still performing the activity, which is evident from the FIFA annual reports, and he receives an annual payment for that – in 2019 alone, he received 246 thousand US dollars.
The request also states that, in view of the aforementioned constitutional principles and generally known facts, they propose to the Mandate-Election Commission, on the basis of Article 201 of the Rules of Procedure of the National Assembly, to accept the following resolution after the debate: The Mandate-Election Commission proposes to the National Assembly that, based on Article 112 of the Rules of Procedure of the National Assembly, it votes on the following resolution: “The National Assembly finds that on the 6th of July 2016, by appointing the official Tomaž Vesel to the position of chairman of the independent Audit and Compliance Committee at the International Football Association, he began to perform the gainful activity of supervision, which, according to the first paragraph of Article 27 of the Integrity and Prevention of Corruption Act and point 3 of the first paragraph of Article 16 of the Court of Audit Act, is incompatible with the function of the President of the Court of Audit, and he has also not obtained a permit to perform activities, intended to generate income and material gain, in accordance with the fourth paragraph of Article 26 of the Integrity and Prevention of Corruption Act, and therefore, on the basis of the sixth paragraph in connection with the fourth point of the first paragraph of Article 10 of the Court of Audit Act, his function of the President of the Court of Audit of the Republic of Slovenia, shall be terminated.”
Sara Bertoncelj
