Date: Monday, 22 July 2024

Physical location: EEAS premises, Brussels

Present

European External Action Service 

Head of Division, Democracy and Electoral Observation Division

Expert, Democracy and Electoral Observation Division

Deputy Head of Division, Division for Pakistan

Policy Officer, Division for Pakistan

Legal Adviser - Transparency, and Legal Adviser, SG.LD.2, EEAS Legal Department 

Trainee, Access to documents, SG.LD - Legal Department   

Policy Officer, SG.2 Parliamentary Affairs Division

European Ombudsman

Ms Tanja Ehnert, Inquiries Coordinator

Ms Michaela Gehring, Inquiries Officer

Background

The case concerns a request for public access to the Final Report on the EU Election Expert Mission to Pakistan related to the General Election that took place in February 2024. The European External Action Service (EEAS) refused to give access to the report based on the need to protect the public interest as regards the international relations[1] with Pakistan, which the complainant challenged.

Before the meeting started, the inquiry team reviewed the following documents, a copy of which they also took with them:

1. Final Report on the EU Election Expert Mission to Pakistan 2024; and

2. ‘Note Verbale’ of the EU Delegation to Pakistan to the Ministry of Foreign Affairs of the Islamic Republic of Pakistan dated 8 March 2023.

Introduction and procedural information

The meeting started at 10:30 am and ended at 11:30 am.

The Ombudsman inquiry team introduced themselves, thanked the EEAS representatives for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the EEAS as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the EEAS prior consent.^[2]

The inquiry team explained that they would draw up a draft report on the meeting to be sent to the EEAS to ensure that the contents were factually accurate and complete. The meeting report would then be finalised, included in the file and provided to the complainant. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Purpose of the inspection of documents / meeting

The EEAS had requested the meeting to provide further information on the reasons as to why it had refused to grant public access to the document at issue and to enable the Ombudsman inquiry team to understand the broader context of the case.

Information obtained 

General framework

The EU has been conducting election observation missions since 1993. The EEAS representatives noted that it is always a delicate issue to observe elections in third countries where the EU only deploys upon invitation by the host country authorities.

In general, there are two different kinds of missions that the EU may initiate, namely Election Observation Missions (EOMs) and Election Expert Missions (EEMs).

The decision on which country’s elections are to be followed in the coming year is taken by the High Representative of the Union for Foreign Affairs and Security Policy (hereinafter ‘High Representative’) who consults EU Member States and the European Parliament on a priority list.

On average, the EU conducts between four and nine EOMs per year. These missions are led by a chief observer (a Member of the European Parliament) and include a team of 100 to 140 independent experts that are spread across the respective country and are present during the election concerned and for a period of up to two months before. EOMs are public operations, of which the host countries are aware. In general EOMs attract a lot of media attention and remain visible throughout the observation process. The mission publishes press releases and preliminary statements that keep the public informed about the progress of the mission and possible shortcomings that are identified. The final report of an EOM, includes an overall assessment of the electoral process and a set of recommendations, and is made public once the mission has been concluded.

In contrast, EEMs typically consist of two to three experts that are located in the capital of the country concerned and are present from around four to six weeks prior to the election day. EEMs are therefore much more technical and smaller-scale missions than EOMs. The final report of an EEM is shared with the EU Member States and the relevant authorities of the country concerned. While the final report can be made public, this requires the explicit prior consent of the host country. The EU conducts around five to ten EEMs per year. The EEM reports that are, upon agreement of the host country, made public, are available on the EEAS website alongside all EOM reports.

This does not mean that the conduct of EEMs is a secret endeavour. The independent experts that observe elections meet with national authorities, civil society, electoral experts, political parties and relevant stakeholders in the host country. Therefore, whilst there is no public or media exposure of such missions, the public normally becomes aware of the observers’ presence through media coverage.

In this case, for example, the EEAS informed the complainant about the EEM when he requested public access to documents related to a possible EOM (which he wrongly considered might have taken place). In addition, on 9 February 2024, that is, one day after the General Election in Pakistan, the EU published a statement[3] by the High Representative mentioning some of the shortcomings identified in the electoral process. Furthermore, on 22 March 2024, the EU Ambassador to Pakistan posted a message[4] on ‘X’ (formerly ‘Twitter’) explaining the difference between an EOM and EEM and advocating for the release of the EEM’s final report.

Whether the assessment by the independent experts may be made public must be expressly agreed with the host country.

Election observation in Pakistan

The EU has conducted four EOMs and one follow-up mission in Pakistan since 2002. For the 2024 General Election, the EU proposed an EEM.

When proposing an EEM to the host country, the EEAS usually advocates for transparency of the mission, including the final report, as it generally considers it beneficial for the democratic processes of host countries.

This approach was also taken in this case. When proposing the EEM, as it always does, the EU Delegation to Pakistan informed the Pakistani authorities, via a note verbale addressed to the Ministry of Foreign Affairs of the Islamic Republic of Pakistan dated 8 March 2023, that the final report drafted by the experts could have been made public together with a set of recommendations upon explicit agreement of the national authorities. The EU position was re-stated during subsequent high-level meetings with the Pakistani authorities. However, Pakistan did not give its consent to disclosure.

The refusal of public access to the report

The EEAS representatives stated that, due to the lack of consent on the side of the host country, the EEAS was not in a position to grant public access to the final report at issue. In their view, disclosure of the report, even in part, would undermine the public interest as regards international relations with Pakistan as it would be seen as a harm to the climate of trust and cooperation between the EU and Pakistan.

In addition, disclosure could be detrimental to the EU’s election observation system. Indeed, it could affect the confidence that third partners generally have in the EU’s procedures and its commitments to non-disclosure. Notably, whether an election observation/expert mission can be carried out depends very much on the host country’s cooperation throughout the process. This goes beyond the formal agreement that an election observation/expert mission may take place. For example, the host country also has to issue visas for the independent experts to be able to enter the territory of the country in good time and thus to facilitate the mission.

Finally, despite the EEAS commitment to transparency reflected in the encouragements to the Pakistani authorities in disclosing the document at issue, as the host country never gave its consent to disclosure, the EEAS did not consider it necessary to consult Pakistan on the complainant’s access request.

Conclusion of the meeting

The inquiry team thanked the EEAS representatives for their time and for the explanations provided, and the meeting ended.

 

Brussels, 22 July 2024

Tanja Ehnert                                                                                                            Michaela Gehring

Inquiries Coordinator                                                                                          Inquiries Officer

 

[1] In accordance with Article 4(1)(a), third indent, of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

[2] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[3] See: https://www.consilium.europa.eu/en/press/press-releases/2024/02/09/pakistan-statement-by-the-high-representative-on-behalf-of-the-european-union-on-the-general-elections/.

[4] See: https://x.com/RKionka/status/1771154510955614402.