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Facing Criminal Inquiry, Austrian Chancellor Sebastian Kurz Resigns

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BERLIN — Chancellor Sebastian Kurz of Austria announced on Saturday that he would resign, days after prosecutors began a criminal investigation into allegations he used public money to pay off pollsters and journalists for favorable coverage.

The move came amid intense pressure from all sides, with Mr. Kurz’s partners in the government, the Greens, threatening to quit the coalition unless his conservative People’s Party replaced him as chancellor. The country’s president issued a stern statement urging all players to put party politics aside in the interest of stability.

“I admit that it is not an easy step for me,” Mr. Kurz told reporters at a news conference in Vienna on Saturday evening. “My country is more important than my person. What it needs is stability.”

Mr. Kurz, 35, said that he would suggest Alexander Schallenberg, 52, the country’s foreign minister, as his replacement in the chancellery. He said he would stay on as the leader of his party and the head of the conservative caucus in Parliament — positions that would keep him close to the new chancellor.

Saturday’s resignation was the second time Mr. Kurz was forced to give up the chancellorship without serving out a full term. It was also the second time that his exit was linked to allegations of corruption.

On Wednesday, prosecutors said that Mr. Kurz was suspected of using taxpayer money between 2016 and 2018 to pay a polling company to produce favorable surveys and a media company to publish the results.

Despite quitting the chancellery, though, Mr. Kurz will remain in proximity to the levers of power.

“A real loss of power looks rather different,” Peter Filzmaier, a political scientist, told Austria’s public broadcaster ORF, pointing out that Mr. Schallenberg is a confidant of Mr. Kurz.

Celebrated elsewhere in Europe, especially in Germany, as the fresh, dynamic face of a new wave of conservatism, Mr. Kurz is also viewed by many as a divisive figure. His boycott of the U.N. migration pact in 2019 and his cuts in benefits for people seeking asylum in Austria have drawn parallels to his Hungarian counterpart, Viktor Orban.

But Mr. Kurz, a talented political figure adept at finessing his image, has always been careful to present himself as a pro-European leader focused on the future. His decision to enter into a government with the Greens was seen by many as an attempt to rehabilitate his reputation abroad, where his tilt to the right had raised eyebrows.

Werner Kogler, Austria’s vice chancellor and leader of the Greens, who had questioned Mr. Kurz’s ability to remain as chancellor while under criminal investigation, welcomed the resignation.

“Given the current situation, I believe this is the right step for our work in the government to continue, and for Austria’s image abroad,” he said, indicating that his party would remain in the coalition under Mr. Schallenberg.

An experienced diplomat, Mr. Schallenberg was expected to meet with Mr. Kogler on Sunday.

Like his predecessor, both as foreign minister and soon as chancellor, Mr. Schallenberg has taken a hard line on migration and is a strong supporter of Israel. He was first named to the foreign minister post as part of a technocrat interim government that had to step in for several months after Mr. Kurz lost a confidence vote in Parliament in May 2019.

That came after Mr. Kurz’s partners in his first government, the far-right Freedom Party, quit in a scandal that broke out after a video showed the Freedom Party leader promising government contracts in exchange for financial support from a woman claiming to be a wealthy Russian. That government lasted only 526 days.

After a snap election in September 2019, Mr. Kurz won a decisive victory for his party, but this time he pivoted to the left, forming a government with the Greens.

When federal prosecutors announced on Wednesday that they had opened a criminal investigation against Mr. Kurz and nine others, including his close advisers and members of his party, the Greens began questioning whether he was fit to remain in office.

In his statement on Saturday, Mr. Kurz insisted that the allegations against him were untrue and said that he would prove his innocence.

“These accusations date back to 2016. They are false, and I will be able to clear this up,” he said. “I’m deeply convinced of that.”

Between 2016 and 2018, prosecutors said in their statement Wednesday, Mr. Kurz is suspected of using finance ministry funds to pay a polling company to conduct, and in some cases manipulate, surveys favorable to him and his party.

The results of the surveys were then published in newspapers owned by a media conglomerate that accepted payments in exchange for the positive coverage, prosecutors said.

The suspicions are based partly on lengthy text message conversations between Mr. Kurz and some of his advisers. Prosecutors on Wednesday ordered the police to search the chancellery, the finance ministry and the conservative party’s headquarters.

Mr. Kurz also faces a separate investigation, in which prosecutors are examining whether he made false statements to Parliament. After that inquiry was announced in May, the Greens stood behind the chancellor.

But this past week leaders of the left-leaning party, which had campaigned on a clean-government pledge, felt they had reached a limit.

Calling into question whether Mr. Kurz was fit for the chancellery, the Greens began exploratory talks with opposition parties in Parliament over possible coalitions — only to realize any collaboration would in some way have to involve the far right.

In an address to the nation on Friday evening, President Alexander Van der Bellen appealed to “all parties and their leaders” to put aside their short-term ambitions and place the needs of the nation above politics.

“Austria cannot afford any egoists right now,” he said.


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Angolan journalists continue to face criminal insult and defamation proceedings

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New York, June 30, 2022 – Angolan authorities should drop criminal defamation and insult investigations into journalists Escrivão José, Óscar Constantino, and Fernando Caetano and ensure that investigative journalism is not criminalized, the Committee to Protect Journalists said Thursday.

The three journalists each told CPJ that they are facing ongoing legal processes over criminal defamation and insult complaints about their work.

“The spate of spurious criminal defamation cases against journalists in Angola shows that politicians and powerful figures are allergic to public scrutiny and are taking advantage of colonial-era laws to criminalize journalism,” said Angela Quintal, CPJ’s Africa program coordinator, in Johannesburg, South Africa. “Prosecutors must stop pandering to elites who want to keep citizens in the dark and should refuse to entertain such cases in line with a 2010 resolution by the African Commission on Human and Peoples’ Rights urging African Union members states to abolish criminal defamation and insult laws.”

Convictions for criminal defamation carry prison terms of up to 1.5 years and a fine set by a judge; insult convictions carry one year and a fine, according to the penal code and Nelson Custódio, a local lawyer who represents both Caetano and Constantino, and who spoke to CPJ via messaging app. CPJ has recently reported on several other criminal defamation cases against journalists in Angola.

On June 6, investigators with the police criminal investigation service in the capital, Luanda,  sent a summons to José, editor of the privately owned newspaper Hora H, and on June 13 they questioned him in relation to defamation and insult complaints filed by Bento Bento, the ruling People’s Movement for the Liberation of Angola (MPLA) first secretary in the capital, according to news reports and the journalist, who spoke to CPJ via messaging app.

Bento’s complaints stemmed from a March 29 report by Hora H’s affiliated online video outlet, in which José covered corruption allegations involving a land deal by Bento, José told CPJ. Authorities released José after classifying him as “arguido,” or a formal suspect in criminal proceedings, a necessary step to possibly being charged with a crime or arrested.

José told CPJ that Hora H had sought Bento’s comment more than a month before publishing their story.

“Instead of any reply to our questions, Bento chose to intimidate journalists by using his political weight to sue us,” José said, adding that this was the 24th criminal defamation suit he had faced over his work. He said most of those cases were unresolved, and some had closed without a formal prosecution.

CPJ called Bento and contacted him via messaging app for comment but he did not answer.  

Separately, on June 20, a judge in the province of Kwanza Sul held a hearing in criminal defamation and insult cases against Constantino, a reporter for the Catholic Church-owned broadcaster Radio Ecclésia, according to news reports and Constantino, who spoke to CPJ via messaging app.

That case stemmed from complaints filed by Morais António, the former president of the provincial electoral commission, over a 2020 report by the journalist about António’s resignation amid an alleged sex scandal, according to those sources. Constantino has been classified as arguido in that case since 2021, he told CPJ.

He said his court appearance in the case is scheduled for July 6, when he expects to learn whether he has been convicted. The public prosecutor had asked for the charges against Constantino to be dropped because of a lack of evidence, according to news reports and Custódio.

António told CPJ by phone that he believed Constantino “went beyond the facts in his reporting” and accused the journalist of failing to publish his reply to the allegations. Constantino told CPJ he stood by the reporting, which he said was based on António’s resignation letter.

António also filed separate criminal defamation and insult complaints against Caetano, a correspondent for the U.S. Congress-funded broadcaster Voice of America and the news website Club K in Kwanza Sul province, over a December 2017 report by Club K about alleged corruption in the management of the provincial electoral commission, the journalist told CPJ by phone. Caetano said he was notified of his status as arguido in the case in November 2021.

That 2017 report was published under someone else’s byline, and featured a photograph that was later reused in an unrelated report written by Caetano in December 2019, Caetano told CPJ. He said he was not the author of the 2017 report and had “no say” in the photo in the 2019 article, adding, “This is a good example of how easily journalists can get sued in Angola for next to no reason.”

António told CPJ that Caetano must prove that he was not the author of the 2017 report, as the photograph was the same and Caetano was the only Club K reporter in the province.

“If it is not him so who is it?” António said, noting that the 2017 article alleged that he had embezzled money.

Caetano had his first court hearing in that case in March, according to Custódio. The case was adjourned and a date for the next hearing had not been set by June 29, Custódio said.

Kwanza Sul public prosecutor Mário Sacuiema told CPJ in a phone interview that he could not comment on Constantino or Caetano’s cases, and confirmed that a date for Caetano’s next court hearing had not been set.


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CCOs and Execution of Compliance Certification: A Significant Risk? (Part III of III)

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CCOs, by definition, are careful and deliberate.  It comes with the profession.  As risk managers, CCOs are skilled in identifying, assessing and acting in a risk environment.

The impact of the new CCO certification requirement, however, presents serious risks that cannot be brushed off or ignored in the face of assurances that prosecutorial discretion will protect CCOs from misguided prosecutions.  Frankly, CCOs recognize that there is too much at stake, including their careers and their liberty interest. 

DOJ’s new requirement was designed and rolled out in good faith, in an attempt to bolster the standing of CCOs in the corporate governance landscape.  To address the potential negative reaction to the certification requirement, DOJ included an important provision in its Glencore FCPA plea agreement.

As set out by DOJ, a CEO and CCO would be required to execute the form Certification thirty (30) days prior to the end of the Independent Compliance Monitor’s Term, which in the case of Glencore is a three-year term.  Paragraph 10 of the Plea Agreement sets out the following important language:

Where necessary and appropriate, the Defendant will adopt new or modify existing internal controls, compliance policies, and procedures in order to ensure that the Defendant maintains: (a) an effective system of internal accounting controls designed to ensure the making and keeping of fair and accurate books, records, and accounts; and (b) a rigorous anti-corruption compliance program that incorporates relevant internal accounting controls, as well as policies and procedures designed to effectively detect and deter violations of the FCPA and other applicable anti-corruption laws. The compliance program, including the internal accounting controls system, will include, but not be limited to, the minimum elements set forth in Attachment C. The Office[r]s, in their sole discretion, may consider the Monitor’s certification decision in assessing the Defendant’s compliance program and the state of its internal accounting controls.

DOJ’s last sentence in Paragraph 10 contemplates that the CEO and CCO may, in their discretion, may consider the Independent Compliance Monitor’s certification, in reaching their own determination as to the state of the Company’s compliance program. 

Another significant consideration is the language of the CEO and CCO certification itself — which states that “such anti-corruption compliance program is reasonably designed (emphasis added) to detect and prevent violations of the [FCPA] and other anti-corruption laws throughout the company’s operations.”

In effect, CEOs and CCOs  can rely on the Independent Compliance Monitor’s certification and the limitation on its certification that the compliance program is “reasonably designed” to detect and prevent violations of the FCPA.

Even with these positive factors, however, CEOs and CCOs will need to design and implement an appropriate procedure to document their respective due diligence and analysis of the Company’s compliance program.  This consideration, at first glance, appears to be straight-forward but could quickly unravel into difficult issues.

A CCO should be able to rely on and document any internal and external reports, assessments, and reviews of the Company’s compliance program conducted as part of the remediation effort.  DOJ clearly contemplates that a Company’s compliance program over a three-year monitorship period will undergo significant change and improvement.  By definition,  a CCO will be intimately involved in this process.

The CCO’s ability to rely on these reports, assessments and reviews may require a personal review and evaluation to justify such reliance.  CCOs need to evaluate when a further examination of a specific report may be warranted.  In this situation, a CCO may have to devote and document follow-ups to specific issues flagged in the report, assessment and review.  CCO will inevitablye face difficult situations where reliance on a report may not be completely justifiable.

A further complication may arise when a Company subjects its compliance program to a robust testing and evaluation by an outside party.  in these circumstances, an independent test of an enhanced compliance program may require a CCO to review the test results carefully with a questioning eye.  This process may, in turn, delay the CCO’s certification or even raise further issues requiring analysis and review.

The risks presented by even these obvious situations are even more troublesome given the legal risks posed by acknowledgement that a “false” certification would constitute a violation of the False Statements and Obstruction of Justice criminal statutes, 18 U.S.C. §§1001, and 1519, respectively.  By conceding the issues of “materiality” under 18 U.S.C. §1001, and “tangible record” under 18 U.S.C. §1519, a CCO may be setting him or herself up for a criminal prosecution where the issue may not rise to a criminal violation.

CCOs have enough problems in the corporate governance world.  On balance, it is difficult to maintain that the CEO and CCO certification requirement is a net plus for CCO stature in the corporate governance landscape.

Given the controversy surrounding this issue, I fully expect there will be more discussion between the CCO community and DOJ.  After all, DOJ’s most important ally in the corporate world is the CCO — and DOJ should avoid any negative impact on such a critical ally.


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First election in Caricom this year brings change

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Grenadians this week began living under a new government following general elections late last week that saw a government which had won all 15 seats in the previous two elections suffer an electoral meltdown, losing nine of those parliamentary slots as the New National Party (NNP) heads into the opposition.

The Caribbean Community’s first major elections for this year mean that attorney Dickon Mitchell, 44, has been sworn in as Grenada’s new prime minister replacing long-serving Keith Mitchell—no known relation—after becoming party leader just last October.

Clearly tired and worn out by Mitchell and the NNP, Grenadians decided to give the fresh-faced attorney and the National Democratic Congress (NDC) a chance to run the mini archipelago that also includes Carriacou and Petite Martinique for the next five years.

Keith Mitchell and Mia Mottley of nearby Barbados were the only two leaders in the 15-nation bloc whose governing parties had held every single parliamentary seat and had run their countries largely without any opposition in an atmosphere of peace. In the case of Grenada, Mitchell had done it three times in the past 20 years but voters say they have had enough of nepotism, corruption, a weak economy and other problems besetting the country.

Dickon Mitchell was sworn in at the weekend as the nation’s ninth prime minister and immediately warned about a possible purge of the public service of hundreds of political appointees.

“Under my leadership I intend to break that vicious cycle of nepotism. The key criteria will be merit in particular as it relates to the government service in all aspects including the police, nurses, teachers and doctors. We need to run our country based on merit, hard work, the desire and willingness to overcome and to find solutions to the challenges that face us. We will not move forward or prosper as a people on the sole basis for job selection, promotion, for the award of contracts on party loyalty or personal loyalty,” he told a weekend forum.


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