Investigating committees are an instrument of parliamentary control that is only available to the National Council.
A Political Mission: Monitoring Certain Aspects of the Government's Work
It is their task to scrutinise the way the Federal Government conducts its business regarding specific matters and to investigate actual conditions and events. They do not, however, have the right to hold representatives of the Federal Government responsible or make them suffer the consequences of their actions.
These rights are only exercised by the National Council, to whom the Federal Constitutional Law has, for instance given the right to pass a vote of no confidence against a Minister or to impeach him/her.
There is a basic distinction between investigating committees and court proceedings. The former do not settle disputes but find facts. Their findings cannot be appealed against. There are no defendants, and accordingly informants (experts or otherwise) testify to certain facts or circumstances rather than for or against a defendant.
Establishing Investigating Committees
Investigating committees can only be set up by the National Council but not by the Federal Council. While until the end of 2014, establishing them required a majority decision of the National Council, this is now a minority right. If one quarter (i.e. 46) of the Members of the National Council so demand, an Investigating Committee has to be set up. The opposition has thus been provided with a powerful instrument of control.
The motion or demand to establish an investigating committee has to define the subject to be investigated. The latter must be a specific event or process that occurred under the executive authority of the Federal Government and has been concluded in the past, i.e. does not extend into the present. Investigating committees must not interfere with current political business. Their purpose is rather to examine ex post facto certain processes or events, or decisions taken, and to establish political accountability.
A demand or motion to set up an investigating committee is referred to the Rules of Procedure Committee, which will deliberate on motions and will check demands to decide on the latter's admissibility. The Rules of Procedure Committee must report to the National Council within a period of eight weeks. If it considers the demand to be admissible, the Investigating Committee is deemed established. If the report is based on a motion, the National Council has to vote on it.
The activities of an investigating committee are concluded when it submits its report to the National Council, which must basically happen after a period of 14 months. In exceptional cases, the period may be extended.
All federal organs (Federal Ministries, Court of Audit, Financial Market Authority), all organs of the Laender (e.g. Land Governments), of municipalities and other self-governing bodies (Chambers) must produce their files and documents falling within the terms of reference of the investigation if so requested by the Investigating Committee. They may also be requested to take evidence.
However, investigating committees have no right to resort to, or to request the courts to resort to, measures designed to secure evidence, such as searches or seizures.
Investigating Committees may also summon informants and question them on the subject of investigation. If an informant fails to comply with a summons, the committee may have him/her arraigned by police. It may also petition the Federal Administrative Court to impose a coercive penalty.
Submission of files and documents and summonses of informants may be demanded by a quarter of the members of any Investigating Committee. However, no informant may be summoned more often than twice on the basis of such demand.
Procedure is governed by the “Rules of Procedure of Parliamentary Investigating Committees“. Investigating committees are chaired by the President of the National Council, who is supported by a procedural judge.
Informants may be accompanied by persons in their confidence, but the latter do not hold the position of legal counsel; this means, e.g., that they have no right to take the floor in the proceedings.
All proceedings are conducted in the presence of a procedural adviser to protect the informants’ fundamental and personality rights.
Obligation to Testify Truthfully
Informants before an investigating committee are under the obligation to testify truthfully. If an informant refuses to testify and the committee feels that such refusal is not justified, it may request the Federal Administrative Court to impose a coercive penalty.
If an informant fails to comply with a summons, the committee may have him/her arraigned by police.
Civil servants cannot plead being bound by official secrecy. They may, however, be heard in camera, in which case all those present are committed to keep the testimony confidential.
Confidential Deliberations, Hearings in the Presence of the Media
The deliberations of an investigating committee are confidential. Hearings of informants and experts are, however, open to media representatives unless there are - in analogy to court proceedings - grounds to exclude the public.
The hearings are recorded verbatim and, if the committee so decides, the verbatim records of public hearings published as communiqués on the parliamentary website.
The Right of Enquiry
The right to establish investigating committees is sometimes termed “right of enquiry“. It is to be distinguished from Parliamentary Hearings and Commissions of Enquiry, which serve to provide information to Members of Parliament in their function of legislators.