EU Corruption case goes to Court of Justice of the European Union
The following is an extract from the evidence of Judge Malcolm Simmons presented to the Court in London this week.
(1) In 2013, prior to my appointment as PEJ, I was the Presiding Judge in a case known as ‘Klecka’. This was a war crime case with ten defendants that included a prominent politician, Fatmir Limaj. Klecka was an important case for the Mission. The allegations included torture and murder of Serbian prisoners of war and Albanian civilians. EULEX prosecuting this case was important for the continued engagement of Serbia in the Belgrade-Pristina Dialogue.
(2) Klecka was a high-profile case in which the Mission had invested a significant amount of energy and money. The Mission was determined to have Fatmir Limaj convicted and, more importantly, removed from political life. During a meeting in about January 2013 with Mats Mattson, he told me the Mission wanted Limaj convicted and that it was important for the Pristina-Belgrade dialogue. The Mission had to convince Serbia that it was not simply representing the interests of the Kosovo Albanians. The First Trial ended when the trial panel, headed by a UK Crown Court judge, found there was insufficient evidence against the accused (the case rested entirely on the evidence of a man with a history of mental illness whose evidence was contradicted by forensic evidence and other witness testimony and who had died prior to trial). Gerrit Sprenger, Vice President of EULEX Judges did not waste time expressing his displeasure about the acquittal, given its political importance to the credibility of the Mission. The case went on appeal and Judge Sprenger appointed himself President of the appeal panel. The appeal panel reversed the trial judges’ findings and sent the case for re-trial. I was appointed to preside during the second trial.
(3) The political significance of this case for the Mission was again highlighted in an email to me on 29 January 2013 from the then President of the Assembly of EULEX Judges, Charles Smith, in which he had asked me to list the case as quickly as possible for what he described as “a number of reasons, most of them political”.
(4) Having been appointed to the trial panel, in 2013 I was informed by Charles Smith that the Mission “had a lot riding” on the outcome of the case. He said the Mission “expected convictions.” He further suggested that my job might be in jeopardy if the defendants were not convicted. I reported these events to the EULEX Head of Executive Division, Mats Mattson. Mats refused to take any action. He too suggested my career within EULEX and the EU would be seriously compromised if I pursued the matter.
(5) I regularly and candidly updated attendees at the Senior Brits meetings as to what was happening with the Klecka case. I consistently voiced my concern that judicial independence was being deliberately infringed by the Mission, at the apparent direction or approval of Brussels.
(6) I reported that conversation with Charles Smith to the UK Embassy in Kosovo in an email on 11 July 2013 addressed to the Deputy Ambassador Joe Preston. I subsequently met with Joe Preston. I made it very clear to Mr Preston that this was obvious interference with the independence of the judiciary and an attempt to interfere in the outcome of a criminal trial. We discussed how to proceed. I made it clear that I expected the UK to intervene on my behalf in Brussels to ensure judges were not put under overtly political pressure. He told me I should not be concerned by such threats. He suggested that my standing in the Mission might be affected if I were seen as a troublemaker. Despite my requests, he made it very clear that the First Respondent would not intervene. Mr. Preston referred to the fact that, while the Mission model was suitable for a policing or military mission, it was wholly unsuitable for a rule of law mission. However, he appeared content that my role should simply be to further the political interests of the Mission. His attitude was very much along the lines that I should not ‘rock the boat’.
(7) This was not the only occasion when Charles Smith had attempted to interfere in criminal cases. I shared an office with Judge Mariola Pasnik. We shared concerns about pressure exerted by Mission management on EULEX judges. On 18 July 2013 Judge Pasnik received an email from Charles Smith in which Charles Smith appeared to instruct Judge Pasnik on how to proceed in the case on a case in which she was presiding. I was also present on 11 and 15 July 2013 when Judge Pasnik received telephone calls from Charles Smith that she put on speakerphone during which Charles Smith attempted to interfere in the same case suggesting she impose a custodial sentence. I noted these conversations in a contemporaneous email to Judge Pasnik.
(8) Judge Vitor Pardal also alleged that Charles Smith and his deputy, Gerrit Sprenger, had attempted to interfere in one of his cases. Indeed, he claimed subsequent disciplinary proceedings that were brought against him were a result of his refusal to follow their instructions in that particular case.
(9) Charles Smith told me upon his return from a trip to Brussels that disciplinary proceedings against Vitor Pardal had been discussed. He said he told EEAS staff in Brussels Judge Pardal “had to go” and that “it’s him or me”.
(10) I was the Chair of the disciplinary board in the proceedings that were subsequently brought against Judge Pardal (contrary to Article 8(6); paragraph (19)(b) above). The panel rejected the allegations. On the morning of the panel’s deliberation I received a telephone call from the EULEX Head of Mission, Bernd Borchardt, who told me that he had been in communication with ‘Brussels’ and proceeded to give me his opinion on the case and suggested how we might proceed to find. I told Head of Mission this was a matter for the panel, and that his direction was not appropriate. This was demonstrative of the way in which supposedly independent process were in fact directed from outside.
(11) As a result of the panel’s decision to reject the allegations in the Pardal case I became the focus of attention of Charles Smith and Gerrit Sprenger. For some time thereafter, every day they would telephone my office landline approximately five minutes after working hours commenced and a few minutes before working hours concluded to see if I was at my desk. They always sounded surprised to find me at my desk and appeared to search for a reason to justify having called me. This continued for several weeks. Presumably if they had not found me at my desk they would have commenced disciplinary proceedings against me for dereliction of duty. I reported this at the time to Catherine Fearon, Special Assistant to the EULEX Head of Mission and a UK secondee.
(12) Following the arrival of the new UK Ambassador in 2015, I was no longer invited to the Senior Brits meetings. I subsequently met several times with the new Ambassador and his Deputy Thomas Adams. Nevertheless, I was expected to provide regular reports to the First Respondent. Initially these were monthly but latterly became quarterly. I sent my reports to the UK’s National Contingent Leader in EULEX, who is appointed by the First Respondent, who would forward them to the Embassy and the First Respondent in London. On one occasion I was asked by the Deputy Ambassador for my opinion regarding the apparent suicide of a prisoner in Peja.
(13) As President of EULEX Judges I regularly attended meetings with the EULEX Head of Mission. The Mission appeared to determine success by the number of convictions and high-profile defendants who had been incarcerated. There were numerous occasions when EULEX judges issued decisions with which Head of Mission disagreed. After each such ruling at a meeting with Head of Mission he would ask me: “Is the judge contracted or seconded?” The implication being that if they were contracted it would be easier to get rid of them. On several occasions he said judges should be “sent home” after issuing judicial decisions he disagreed with. He insisted that I be more assertive in terms of having cases assigned to judges who would find “in favour of the Mission”, and it was clear which judges were so inclined. Several times I reminded him that would be improper and that there was a random case allocation system in operation.
(14) The Head of Mission made it clear on several occasions that he preferred judges from Eastern European countries because, in his opinion, they were more compliant and did what was “expected” of them. It was well known that judges from Poland, Bulgaria and Romania were earning significantly more in EULEX and other EU missions than they would be back home and were therefore seen by management as being more pliable because they were less likely to exercise independence in the face of pressure from management in case this resulted in the loss of their secondment.
(15) Assignment of judges to cases became a regular battle with Head of Mission. When a high-profile case was to be listed for trial I would be asked to assign a ‘sympathetic’ judge to the case. Judge Sielicki was often the preferred choice and there was a general perception that he would convict or find in favour of the prosecutor. On several occasions I was contacted by Jaroslava Novotna, EULEX Head of Executive Division, who was concerned about approaches that she had received from Judge Sielicki who was seeking guidance on what the Mission wanted prior to his issuing a judicial decision. After he had issued a decision that was perceived to be what the mission expected Judge Sielicki would telephone Jaroslava Novotna to inform her. This was usually before the parties had been informed of his decision. EULEX Head of Mission Meucci subsequently insisted on changes to the case allocation system to give more power to the President of EULEX Judges to re-assign cases. He told me that he expected me to assign cases to judges in whom the mission could have confidence to convict.
(16) Deputy Head of Mission, Bernd Thran, was also a regular critic of EULEX judges. He did not understand the concept of judicial independence, often asking “what went wrong this time?” after a EULEX judge had issued a decision he disagreed with. On one occasion Jaroslava Novotna was present and asked him whether he had read a ruling that he was complaining about In response Bernd Thran stated “I do not have to read it, I know it’s wrong!” My legal officer Kerry Moyes was also present at that meeting.
(17) EULEX judges were even accused of corruption if they made decisions unpopular with Mission management. Judges Katrien Witteman and Anna Adamska were accused of corruption by a senior manager in response to decisions they had made. There was no basis for the allegations, which were made purely because the judges’ independence had displeased management by resulting in the Judges issuing decisions which ran contrary to Mission management’s perception of the political interests of the Mission.
(18) It was not only EULEX judges who came under pressure. EULEX prosecutors were also under pressure to pursue cases against high profile defendants — even when there was insufficient evidence to secure a conviction. An American Prosecutor told me that prosecutors came under pressure to pursue prosecutions for reasons that were entirely political. Those who refused became persona non grata and cases were taken from them and given to prosecutors who were perceived as more pliable.
(19) The contracts of prosecutors who refused to bend to pressure from Mission management to prosecute overtly political cases were not extended. I was personally involved in two such cases. In both cases the other two members of the panels agreed in advance which prosecutors would not be selected. When I arrived for the interviews I was told that they did not wish to select those prosecutors. Thereafter, the process was manipulated and score records adjusted. One of the prosecutors was a contracted member of EULEX staff from the United Kingdom. On 13 September 2017 I met Thomas Adams and I informed him about this. He appeared disinterested and did not ask me any questions about the UK citizen involved or enquire further into the circumstances. The First Respondent failed to take any action. To take action would have caused embarrassment for the Mission, which I believe was something the First Respondent clearly was not prepared to do because it ran contrary to the shared political aims of the First Respondent and the Mission.
(20) On several occasions EULEX Head of Mission Meucci suggested to me that any evidential deficiencies could be cured by assigning a judge who “understood why he was there”. In other words, assigning a judge who would convict regardless of the evidence if it was in accordance with the political function of EULEX to do so.
(21) Not all of the shortcomings of the mission arose from the conflict between the rule of law function and the nation building/political function. There were many examples of sheer incompetence. They are not material to this hearing, so I will not go into detail on them, but they arose in my view at least in part because there was a malaise surrounding the Mission as a result of the rule of law function being deliberately suborned to the political function. The political function was therefore an indirect cause of these shortcomings.
(22) In 2015 I became aware that a EULEX Judge of the Kosovo Constitutional Court, Robert Carolan, was regularly absent from work. It appeared he spent most of his time at home in the United States despite. During his many absences he continued to claim a per diem that was only paid to EULEX staff members who were physically ‘in Mission’, in other words in Kosovo.
(23) I raised the matter with Jaroslava Novotna. She in turn raised it with Head of Mission. I was perplexed to subsequently receive instructions from Jaroslava Novotna that I should not take any action. Despite that I continued to monitor the attendance of Judge Carolan. During this period I was continually receiving complaints from Hannelore Valier, Head of the EULEX Human Resources department who reminded me that, as Judge Carolan’s line manager, it was my responsibility to take action. She too appeared perplexed by the refusal of the Mission to take action. I raised the matter direct with Head of Mission who informed me that he had received instructions from the Civilian Operations Commander, Kenneth Deane, not to take any action. I received a copy of Mr. Deane’s letter dated 8 October 2015.
(24) I discussed Judge Carolan with Louise Taylor. We agreed that I would refer the case to OLAF, the EU fraud ombudsman. I reported the matter to OLAF and requested they investigate Judge Carolan. They did and concluded there had been fraud.
(25) During one of the regular ‘Senior Brits’ meetings at the UK Embassy I mentioned the fact that I had made a formal complaint to OLAF regarding Judge Carolan. I had previously informed the ‘Senior Brits’ of the circumstances surrounding Judge Carolan.
(26) In 2016 another EULEX judge of the Kosovo Constitutional Court, Snezhana, Botusharova came to my attention. She too was regularly absent from the Court working on another EU project at the Constitutional Court in Georgia. This was a private consultancy through an Austrian company. She received a salary for that job. She continued to claim — and receive — a daily per diem from EULEX. I brought this matter to the attention of the Head of Mission. The Mission was reluctant to take action. I had several meetings with Deputy Head of Mission, Bernd Thran, and asked him to take action. He arranged a meeting with Judge Botusharova. Although I was her line manager he did not invite me to attend the meeting. I contacted his assistant, Frazer Buffini, who told me that Mr. Thran did not want me at the meeting. Judge Botusharova was permitted to continue both jobs and receive two salaries. Louise and I agreed that I would refer the matter to OLAF.
(27) The UK Embassy also raised with me concerns about Judge Botusharova. Louise Taylor, Deputy Ambassador at the UK Embassy, informed me that she had received information that Judge Botusharova had been using a vehicle registered to the Constitutional Court of Kosovo to travel between Pristina and her home in Bulgaria. I had not heard this allegation previously. I raised it orally with Jaroslava Novotna, and by email with Louise Taylor.
(28) I informed Louise that I had spoken with OLAF regarding Judge Botusharova and had informed them of the allegations. I told Louise that I would send everything I had to OLAF and cooperate with their investigation. This matter was also raised during a ‘Senior Brits’ meeting.
(29) In 2014 an independent prosecutor from Finland, Heikki Wendorf, was investigating allegations of corruption involving a EULEX judge. When the investigators started to uncover evidence of serious misconduct — including allegations of criminal behaviour involving other senior EULEX staff — Kenneth Deane travelled to Helsinki to persuade the Finnish Foreign Ministry not to extend Mr. Wendorf’s contract. The investigation was eventually shut down. I met Mr. Wendorf on 28 November 2018 when he told me about a meeting he had with the Finnish Foreign Ministry who told him of Kenneth Deane’s visit in May or June 2015. Mr. Wendorf showed me an email from the Finnish Ministry of Foreign Affairs that referred to a senior official of that Ministry refusing to meet Kenneth Deane, describing him as “trouble”. This was demonstrative of the manner in which the Second to Fourth Respondents would determine the affairs of the Fifth.
(30) In 2016 the Mission was subject to a downsizing exercise. As part of this exercise EULEX judges assigned to criminal courts were interviewed to determine which judges would stay in the Mission. The selection panel comprised the Head of Executive Division, Jaroslava Novotna as Chair, me, and the Vice President of EULEX Judges, Anders Cedhagen. Also present during the interviews was a Human Resources monitor assigned by Brussels.
(31) Following completion of the exercise several judges were informed that their contracts would not be renewed. Judge Sielicki was one of the judges not selected. He made a complaint about the fairness of the selection process. That complaint was rejected by a panel established by the Mission’s Human Rights and Legal Office to review all complaints relating to the selection process.
(32) Following his being informed he had not be selected he told a number of staff members that he would “take revenge” against me, a fact that I reported at the time to the EULEX Chief of Staff.
(33) Shortly thereafter, in or about October 2016, I was informed by Kerry Moyes, who at that time was working in the EULEX Legal Department, that judge Sielicki had travelled to Brussels for a meeting with Mr Deane and his Deputy Bert Versmessen.
(34) On 31 October 2016 the Head of Mission requested a meeting with me. We met in her office. She said there were two matters she wished to raise. Firstly, she informed me a complaint had been made by the German authorities who were unhappy their seconded candidate had not been re-selected. Further, a complaint had been made that there was an “over-representation” of one nationality. She was clearly referring to Poland. Secondly, she said she had received a complaint from Judge Sielicki. She said ‘Brussels’ had also raised the matter with her. She said she had started reading the complaint but then realised it referred to private emails. She said she stopped reading and immediately referred it to Kenneth Deane. I did not realise then that the private emails to which she was referring were my emails. I now believe that Judge Sielicki handed a copy of the same complaint containing my private emails to Kenneth Deane and Bert Versmessen when he met them in Brussels.
(35) This incident demonstrated that EULEX and the Second to Fourth Respondents were acting in concert with Judge Sielecki, who had developed a grudge against me because of the concerns I had raised about him. He had somehow (and via a method that I do not know and which I cannot imagine could have been done lawfully) procured my emails and provided these to individuals within the Second to Fourth Respondents who had in turn provided them to the First Respondent. They were acting entirely in concert with one another.
(36) On 31 October 2016 Head of Mission issued a Decision annulling the competition and ordering it to be repeated. In her Decision Head of Mission stated:
“After the combined evaluation of the complaints and the individual Board recommendations I found that while the concerns which brought to my attention individually may not be able to distort the fairness and/or accurateness of the competition(s) the combination of these concerns might have had an impact on the outcome. It needs to be emphasized that the individual complaints alone were not substantiated and none of the Boards found any serious violation….While the evidence provided by the relevant actors in the process proved beyond doubt that the process was conducted in a fair and equal manner…the competitions might not have rendered the most accurate result….”
The EULEX Head of Mission concluded her Decision by stating:
“Therefore I have decided that both competitions which might have been vitiated by these inaccuracies shall be repeated….”
(37) The Head of Mission did not refer to any substantive reason for annulling the first competition. Indeed, she specifically stated that it had been “proved beyond doubt that the process was conducted in a fair and equal manner”. However, the event demonstrated the extent to which recruitment and redundancy practices were determined by Brussels, and the Second to Fourth Respondents in particular, and could be rescinded at the behest of Brussels without any good reason.
(38) On 9 November 2016 I wrote to EULEX Head of Mission. I raised a series of concerns about Judges Adamska and Sielecki, the independence of EULEX judges, the decision to annul the selection process, and the integrity of EULEX. It was a protected disclosure. After I had sent it, I forwarded that email to Ruairi O’Connell on behalf of the First Respondent.
(39) On 23 November 2016 I received a response from EULEX Head of Mission. It acknowledged my concerns and stated that it had been shared with “Brussels”, whom I took to mean senior staff of the EEAS in Brussels.
(40) The email from the Head of Mission did not address the concerns that I had raised. These allegations were serious enough to justify an independent investigation. I would have expected an investigation into my allegations during which I would be interviewed and further and better particulars of the allegations recorded. There was no investigation into my allegations.
(41) On 23 November 2016 I forwarded that email to the UK Ambassador, Ruairi O’Connell, and suggested the UK raise the matter in Brussels. I received no substantive reply and nor was there any attempt to discuss the concerns raised in my email to EULEX Head of Mission.
(42) In early 2017 I was approached by a fellow EULEX judge, Jorge Ribeiro, who informed me that Judge Sielicki had shown him emails from my private email account. He told me that one of the emails was a complaint that I had made to the UK Embassy about an attempt to interfere in ‘Klecka’. He had taken a photo on his mobile phone of the email in question which he showed me. It was the email dated 11 July 2013 that I had sent to the UK Embassy.
(43) Judge Ribeiro said he also saw an email that I had sent to OLAF regarding Judge Robert Carolan. He referred to other emails and two cases that I knew nothing about and cannot now recall. It occurred to me that some emails shown to Judge Ribeiro had been fabricated. He said he had asked Judge Sielicki how he had obtained the emails. Judge Sielicki said he had obtained them “through a friend”. Judge Ribeiro interpreted this as suggesting Judge Sielicki had obtained them through the Polish security services. He did not elaborate. He said when he realised the emails had been obtained unlawfully he refused to engage further with Judge Sielicki on the matter. Judge Ribeiro was very reluctant at the time to be drawn further into the matter. He asked me not to report his involvement in the matter. I told him it might not be possible to keep him out of it.
(44) Judge Sielicki had previously informed me that he was well-connected in the Polish government and that he had been offered the position of Attorney General within that government. Therefore, I had no reason to doubt that Judge Sielicki might have contacts within the Polish security services who were capable of obtaining access to my private emails.
(45) Following my conversation with Judge Ribeiro I made a formal complaint about the unlawful accessing of my emails and requested CPCC conduct an investigation. Instead of CPCC conducting an investigation it referred the matter to the EULEX Internal Investigation Unit. I also informed EULEX Security of the accessing of my private emails.
(46) Throughout the investigation into the unlawful accessing of my emails I was in communication with the UK Ambassador to Kosovo who told me he had discussed the matter with EULEX Head of Mission and assured me I would be kept fully informed of the progress of the investigation. This did not happen. Despite raising this with the First Respondent on several occasions I received no further assistance or support. I subsequently spoke with the UK Ambassador by telephone and told him the investigation by EULEX had been a whitewash and was never intended to get to the truth. He assured me the First Respondent would follow-up. I have since heard nothing.
(47) The emails that were accessed from my private email account revealed that I was a whistleblower and that I had made allegations of serious misconduct involving EULEX judges. Following the hacking of my private email account three investigations were commenced against me.
(48) On 20 January 2017 I met Oliver Hoffman in the restaurant at EULEX in Pristina. He was then working in EEAS in Brussels. Oliver and I had worked together in EULEX. Oliver informed me that EEAS had received my emails in which I had reported misconduct. I assumed he was referring to the various internal emails that I had sent to EULEX managers. Only later did I realise he was referring to emails that I had sent to third parties from my private email account and which had been accessed illegally and stolen. .He said there would be an investigation “against” me. He said he hoped it would not “delay” my appointment to the Kosovo Specialist Chambers which was in progress at that time. He told me to be careful because “they” wanted me out. I asked him who “they” were and he said “Deane and his deputy”.
(49) Kenneth Deane appointed his Deputy, Bert Versmessen, to be the responsible authority for the investigations. Kenneth Deane would determine any appeal from the decision of any Disciplinary Board.
(50) All three disciplinary investigations were conducted by Aindrias O’Caoimh, an Irish former judge. He was assisted by Chris Starmans, an employee of the EEAS.
(51) The first investigation concerned the ‘Klecka’ case. The prosecution case in Klecka was based substantially on the evidence of one witness who had a history of psychiatric illness and who had died prior to the trial. His evidence was contradicted not only by his own evidence but also by other evidence, including forensic evidence. The defendants were acquitted. I was the presiding judge in that case.
(52) The Second investigation was in ‘Drenica’ case. I was not involved in that case but in private email correspondence I had expressed concern about the fairness of the trial — particularly the manner in which the trial panel had been selected. As set out above, Judge Sielicki was the presiding judge in this case and Judge Anna Adamska, with whom Judge Sielicki stated he was having an affair, was appointed to the panel in a manner which raised concerns Judge Sielicki had also engaged in extensive ex parte communication with one of the defence counsel. Further, Judge Sielicki had made comments about the defendants that raised serious concerns about his impartiality.
(53) The third investigation was the result of allegations made by Judges Sielicki and Adamska. I was informed on 11 June 2018 — more than seven months after I had left the Mission — that those allegations had been sent to a Disciplinary Board.
(54) In respect of the allegations in Klecka I was interviewed by Aindrias O’Caoimh and Mr Starmans on 23 May 2017 in the presence of my lawyer Andreas White of Messrs Kingsley Napley. During the lunch break I was with Andreas White when I met Catherine Fearon who was at that time a special advisor to Kenneth Deane. She and I knew each other well. It was a brief meeting. She took me to one side. She appeared nervous and spoke softly and very quickly. I assumed this was because we were in a public place near the offices of the EEAS. Referring to Kenneth Deane she said “Good you have a lawyer. Ken wants you sent home” She said Kenneth Deane had already decided with Bert Versmessen that the allegations would be referred to a disciplinary board. She would not be drawn further and said she would not communicate with me in case she were called to give evidence.
(55) In May 2017 my lawyers wrote to Kenneth Deane and asked him if he had seen emails unlawfully accessed from my private email account. He did not respond and my lawyers wrote to him again. He subsequently responded denying he had seen my private emails. Similar emails were sent by my lawyers to Bert Versmessen, Chris Starmans and Aindrias O Caoimh. Starmans and O Caiomh did not respond. When I was interviewed by O Caoimh and Starmans in September 2017 I saw in the possession of O Caoimh the email dated 11 July 2013 that I had sent to the UK Embassy. That email was sent from my private email account to the UK ambassador. I can think of no legitimate way in which that email could have been held by Mr O’Caoimh and Mr Starmans.
(57) On 14 May 2017 I sent an email to Ian Williams and Thomas Adams of the Frist Respondent to inform them about my lawyers’ inquiries.
(58) On 17 May 2017 I received an email from Ian Williams who stated they had asked the UK Delegation in Brussels to make inquiries into a response. He asked me whether I had approached the Head of Security within EULEX who has responsibility for your safety and security which includes the security of your emails.
(59) On 26 May 2017 I made a formal complaint to EULEX Head of Mission regarding the unlawful accessing of my private email account. I received an acknowledgement from EULEX Head of Mission on 2 June 2017 that I forwarded to Thomas Adams on 2 June 2017. Thomas Adams responded by email on 2 June 2017 stating “Thank you. I shall ask HMA to inform the EULEX HoM that we are aware of your case, including her provisional reply to you. We predict that there will be a limit to what she can share with us, since it is presumably being treated as an internal matter, but we agree that the allegations deserve to be properly and appropriately investigated.”
(60) On 24 June 2017 I wrote again to Tom Adams asking for an update, but received an out of office reply. I forwarded this to Ruairi O’ Connell, asking the FCO to take matters forward. He replied on 28 June 2017 stating: “As Tom may have told you, we have asked EULEX to ensure you are kept updated: I hope this happens. I will refer this issue to colleagues and will revert in due course.”
(61) The First Respondent’s approach therefore — whether it was from FCO staff in London, in Brussels or in Pristina — was to delegate the matter to the Fifth Respondent, which in turn was controlled by the Third and Fourth Respondents. There was no real distinction or delineation between the approach taken between them. All of the Respondents behaved as a consistent whole.
(62) On 17 July 2017, I was informed that the investigation had been closed. I asked to see the investigation file. On 2 August 2017 I met the EULEX investigators Frank Somers and Teofil Pascara. Mr Pascara handed me a file that contained only the decision to terminate the investigation. I asked him about the investigation. He refused to answer any questions.
(63) Later that day I emailed EULEX Deputy Head of Mission, Bernd Thran to register my dismay at the manner of the investigation. I wrote “It is my intention to ask the UK Foreign & Commonwealth Office to demand in Brussels a full, independent (and public) enquiry into these allegations. It is clear this investigation should be conducted outside CPCC/EEAS. I shall be in communication with the UK Ambassador in this regard.”
(64) I forwarded that email to Ruairi O’Connell and Thomas Adams. I told them I had no confidence in CPCC/EEAS to conduct a proper investigation — particularly since the CPCC Chief of Staff/Deputy Civ Ops Commander was one of the persons whom I believed was a recipient of the hacked emails. I asked them to let me know what action the UK proposed to take.
(65) Having received no response to that email, on 14 August 2017 I wrote again to Ruairi O’Connell and Thomas Adams and asked for feedback. On 15 August 2017 I received an email from Thomas Adams stating he would “take advice” and revert.
(66) On 20 August 2017 I sent an email to Ruairi O’Connell and Thomas Adams. At that time I was in Employment Tribunal proceedings with the First Respondent regarding my employment status and I asked for my redeployment to the UK pending the outcome of those proceedings.
(67) On 21 August 2017 I received an email from Thomas Adams stating that he would refer my email to colleagues. I wrote again on 28 August asking whether the FCO had raised my concerns in Brussels and whether the EU was prepared to conduct an independent investigation.
(68) I asked the FCO to refer the unlawful accessing of my emails to police. They refused. This was despite the fact I had UK Security Clearance and there were obvious security implications to someone having unlawfully accessed my private emails. The UK police were, in my opinion, unlikely to take the hacking claims — involving foreign nationals and committed outside the UK — seriously unless the complaint was made by the FCO and/or involved security concerns/implications.
(69) On 29 August 2017 I was informed by an email from Bert Versmessen that a further investigation had been commenced against me relating to events in the ‘Drenica’ case. I forwarded this email to Ian Williams, Ruairi O’Connell and Thomas Adams and stated that it was harassment.
(70) In the absence of any response or clarification from the First Respondent to my request for their assistance in raising my concerns in Brussels, on 2 September 2017 I wrote to Kenneth Deane detailing allegations of misconduct involving EULEX Judges and senior staff of EULEX and the EEAS. I requested an independent, public investigation.
(71) On 2 September 2017 Kenneth Deane appointed Bert Versmessen to “take authority in the specific case”. The “specific case” being the investigation of my claims of misconduct by senior staff of the EEAS and EULEX. The investigators were Aindrias O’Caoimh and Chris Starmans. I was not aware that that Versmessen had been assigned by Deane until 18 September 2017. Regardless of who the investigators were, it was entirely inappropriate that the same individuals were investigating my concerns, had already suppressed my concerns (which formed the basis of some of ongoing complaints).
(72) On 2 September 2017 I wrote to Ian Williams, Ruairi O’Connell and Thomas Adams forwarding to them a copy of the email that I had sent to Kenneth Deane and informing them that I would need to “go public” in the absence of a proper investigation.
(73) On 5 September 2017 I received an email from Ian Williams who stated that there was a limit to what they could do about EULEX personnel who were not FCO employees. It set out that they could not help, other than by signposting me towards EULEX procedures.
(74) On 9 September 2017 I wrote to Kenneth Deane and Bert Versmessen in two separate letters. Both set out why they were inappropriate to oversee my concerns given that “at the very least, you were aware of what was happening and failed to take appropriate action to prevent the misconduct. The extent of your involvement in these matters will be the subject of an independent investigation.” I asked Mr Dean whether he had referred my email of 2 September 2017 to the High Representative and asked them both to recuse themselves from any disciplinary proceedings of which I was the subject. Those letters were sent from the UK and when posting it I received from the Royal Mail a certificate of posting. I did not receive an acknowledgement or any response to those letters.
(75) I subsequently discovered that Aindrias O’Caoimh and Chris Starmans were the investigating team looking into my allegations of misconduct. Aindrias O’Caoimh and Chris Starmans had previously received copies of my private emails. Given that they were in possession of emails unlawfully accessed from my private email account it was absurd that they were investigating allegations regarding those emails. Clearly it was inappropriate that they conduct the investigation into allegations in respect of which they were witnesses. In addition, they were investigating allegations of misconduct against me.
(76) At the same time, I was being investigated by Aindrias O’Caoimh about allegations relating to the Klecka trial. The investigations were flawed, for reasons that are not material to this hearing. Allegations against me were upheld.
(77) Bert Versmessen referred the allegations in ‘Klecka’ and ‘Drenica’ to a Disciplinary Board. Having previously accused Bert Versmessen of serious misconduct — allegations which were outstanding — he should have had no further involvement in the disciplinary process. He had an obvious conflict of interest. However, despite that obvious conflict of interest he continued to involve himself in the process.
(78) The disciplinary board was also deficient. Two members of the Disciplinary Board were not judges, That was a breach of the Operational Plan, Code of Conduct and previous practice. In any event, a judge charged with a disciplinary violation is entitled to be tried by a panel of his peers. Indeed, in previous cases, EULEX judges accused of misconduct have been tried by a panel of EULEX judges. At the very least the panel should have comprised a majority of judges. One panel member, Stefan Huber, was employed by the EEAS — and was subordinate to Kenneth Deane and Bert Versmessen.
(79) All of these concerns were shared extensively with the First Respondent. Their responses became less and less prompt, but maintained the same position that they could not get involved, except where there had been a breach of the relevant rules and regulations. When I pointed these breaches out, they were ignored.
(80) Thereafter I continued to escalate matters — to the Foreign Secretary and Foreign Affairs Select Committee, my MP and others. I rely on my Further and Better Particulars of Claim. The narrative establishes that the five respondents were in effect acting in close concert with one another.
The case against the EU will now be referred to the Court of Justice of the European Union. There are expected to be further revelations of corruption and serious misconduct involving senior EU staff.
