EU Corruption Case referred to Court of Justice of the European Union. What did the PSC Ambassadors know?

Simmonsmalcolm
Nov 8 · 9 min read

From 2008 to 2017 Judge Malcolm Simmons was seconded by the Foreign & Commonwealth Office to EULEX, the EU Rule of Law Mission in Kosovo. From 2004 to 2008 he was seconded by the FCO to the Court of Bosnia & Herzegovina in Sarajevo.

In 2017 the EU European External Action Service informed Judge Simmons that he would be subject to an investigation. It was alleged that (a) he had “improper” communication with defence counsel; (b) had “interfered” in a case and (c) he had failed to comply with correct EU whistleblower rules of procedure. So what were the facts?

In the first case it was alleged Judge Simmons had “improper” communications with defence counsel. What were those “improper” communications? The case in question was a war crime case. Judge Simmons had performed no judicial function in that case. At that time he was President of EULEX Judges. His was primarily a managerial role. He was also responsible for overseeing the allocation of cases to judges. There was nothing “improper” in him speaking with defence counsel.

In 2014 Judge Simmons was approached by defence counsel who expressed concern about the way EULEX judges had been assigned to the case. A Polish Judge had been assigned to preside in that case. All trial panels comprised three judges (two EULEX and one local judge). Another Polish judge was then assigned to the case as the second EULEX judge. It was alleged by defence counsel that (i) the Polish Presiding Judge had requested the assignment of the second Polish judge to the case; (ii) the assignment of the second Polish judge did not follow objective case allocation rules; (iii) the two Polish judges were having an illicit affair and (iv) by reason of the aforesaid there were questions regarding the fairness of the proceedings. These were matters that should have been addressed.

On appeal, defence counsel again raised these matters with the Supreme Court. The Supreme Court appeal panel, comprising a majority of EULEX judges, decided not to hear the evidence of Judge Simmons regarding the way the panel had been selected. That was a surprising omission given the obvious importance of his evidence. Of course, had the court heard his evidence it would have revealed the manipulation of the trial panel. The courts decision not to hear the evidence of Judge Simmons was simply damage limitation, or so the judges thought.

The defendants referred the case to the Constitutional Court of Kosovo. In June 2018 the Constitutional Court of Kosovo decided the Supreme Court should have heard the evidence of Judge Malcolm Simmons and found the EULEX judges of the Supreme Court in breach of Article 6 of the ECHR (the defendants right to a fair trial). Can there be anything more serious than judges of a EU rule of law mission denying defendants their right to a fair trial.

The Second allegation against Judge Simmons was that he had “interfered” in a case. It was alleged that Judge Simmons had interfered in a case, in which another EULEX judge was presiding, by temporarily suspending the transfer of a high-risk prisoner from a maximum-security prison to a lower security prison. There was no dispute that Judge Malcolm Simmons had spoken with the judge in the case who had made the order to transfer the prisoner and that he had “invited” her to “reconsider” her decision to transfer the prisoner from the high security prison. The judge in the case was the same female Polish judge involved in the first allegation against Judge Simmons. Judge Simmons reminded the judge that the prisoner was high-risk and that there were substantiated concerns that he might attempt to interfere with witnesses. The Polish judge refused to reconsider her decision. Thereafter the Acting President of the Court — not Judge Simmons — issued an order temporarily suspending the transfer of the prisoner. The transfer eventually went ahead and the prisoner was transferred to the lower security prison. One week later, during a search of the prisoners cell, a mobile telephone was found and the telephone call log revealed the prisoner had been in communication with alleged co-conspirators and witnesses. A red-faced judge then decided to transfer the prisoner back to the high security prison. So, Judge Simmons’ “interference” was that, as senior EULEX judge he had had the temerity to discuss with a junior colleague the transfer of a high risk prisoner — concerns that proved well-founded.

The third allegation was that Judge Simmons had failed to comply with whistleblower rules. Judge Simmons made allegations of serious misconduct against members of staff of the EU Rule of Law Mission including several Judges. In accordance with EU whistleblower rules Judge Simmons submitted his claim for whistleblower protection to Kenneth Deane, former Civilian Operations Commander of the EU European External Action Service. However, it is alleged in proceedings ongoing before a London Tribunal that Kenneth Deane and his Deputy Bert Versmessen had received copies of the emails unlawfully accessed from Judge Simmons’ private email account. Therefore, Judge Simmons requested that his claim for whistleblower protection be referred to a more senior, independent member of staff to assess. That did not happen. Instead, it is allleged that Kenneth Deane instructed Bert Versmessen to take charge of the investigations. The same investigators were investigating the allegations against him. Clearly this was not an independent investigation. The persons the subject of the allegations were, in effect, investigating themselves.

Judge Simmons raised his allegations of misconduct with Federica Moghirini. She failed to respond. All the time the spokesperson of the EEAS continued to tell the press Judge Simmons had refused to cooperate with the investigation. Why would he cooperate with an investigation that was so utterly flawed? Despite repeated requests the EU failed to initiate an independent investigation.

Returning to the allegations against Judge Simmons, were these really matters in respect of which he should have been censured? The European External Action Service believed they were. Why? Did it have something to do with the fact that he had been exposed as a whistleblower?

In 2016 the EU received copies of the private emails of Judge Simmons. These emails had been obtained unlawfully. The emails revealed that since 2013 Judge Simmons had reported to the UK Foreign & Commonwealth Office allegations of serious misconduct involving senior staff and judges of the EU Rule of Law Mission in Kosovo. These included interference in criminal cases and fraud. Judge Simmons also referred two cases to OLAF — the EU Anti-Fraud Department after the EU refused to investigate. In one case OLAF found a judge of the EU rule of law mission had falsely claimed expenses to which he was not entitled. Another investigation by OLAF is ongoing.

Judge Malcolm Simmons asked the EU to conduct an independent investigation into the unlawful accessing of his private emails. The EU instructed EULEX to conduct the investigation. The investigation was opened and shortly thereafter Judge Simmons was informed the investigation had been “closed”. EULEX eventually gave him access to the investigation file that only contained the letter to him informing him the investigation had been closed. On three occasions Judge Malcolm Simmons asked the High Representative, Federica Moghirini, to start an independent investigation into the unlawful accessing of his private emails. She failed to reply to his requests. The UK Foreign & Commonwealth Office stated in recently released documents that it “repeatedly” asked the EU to conduct an independent investigation into the unlawful accessing of Judge Simmons’ email. It failed to do so. However, in response to a subject access request, the Foreign Office was unable to find a single document in which it had asked the EU to conduct such an investigation. Documents disclosed by the Foreign Office not only suggest that Boris Johnson was personally briefed on matters, they also reveal the Foreign Office was reluctant to intervene on behalf of Judge Simmons because it feared an “escalation” of matters and was, it appeared, more interested in maintaining good relations with the EU during Brexit than it was in protecting a UK whistleblower. The FCO failed to enquire into the composition of the investigation team because it knew what it would find: a cover-up and attempts to pervert the course of justice.

The European External Action Service (EEAS) commenced disciplinary proceedings against Judge Simmons.

Bert Versmessen, the Deputy Civilian Operations Commander, initiated the disciplinary proceedings had been accused by Judge Simmons. He had received copies of Judge Simmons’ private emails that had been unlawfully obtained. Judge Simmons made a formal complaint regarding this matter. Judge Simmons informed the FCO and questioned the impartiality of the disciplinary process. Despite that, the FCO failed to intervene on behalf of Judge Simmons. Versmessen continued to involve himself in the disciplinary process.

The disciplinary board comprised three members. Only one of those persons was a judge. That was a breach of all international conventions that require a panel in disciplinary proceedings against a judge to comprise at least a majority of judges. The other two members of the board were civil servants employed by the EU. One was even employed by the EEAS, the department that had initiated the disciplinary proceedings. He was subordinate to Versmessen — the very person who had initiated the disciplinary proceedings and whom Judge Simmons had accused of misconduct! All of this was pointed out to the FCO. What did the FCO do? Nothing. It simply sat on its hands, content for a UK whistlblower to be victimised.

The High Representative has never denied that the EEAS received copies of Judge Simmons’ private emails. The High Representative has refused to initiate an independent, transparent investigation into the unlawful accessing of his private emails despite repeated requests from the UK Government.

It now alleged that Kenneth Deane left the EEAS while he was under investigation for allegations of serious misconduct including sexual harassment. Further, it is alleged that he had interferred in another investigation. The PSC Ambassadors were aware of these allegations.

In May 2019 an Appeals Board handed down its Decision dealing with, inter alia, technical issues, including the composition of the disciplinary board. The Appeals Board did not consider the substance of the allegations that had been made against Judge Simmons. The decision of the Appeals Board was littered with factual inaccuracies and reached conclusions unsupported by fact or law.

The Appeals Board found:

(a) There was no requirement that a disciplinary board hearing a complaint against a judge should comprise a majority of judges and

(b) It was irrelevant that a member of the board was an employee of the department that commenced the disciplinary proceedings and subordinate to the person who commenced the disciplinary proceedings.

The decision of the Appeals board:

IGNORED decisions of the European Court of Human Rights that had held that, with respect to disciplinary proceedings against judges, there was a requirement of a “substantial participation of judges in the relevant disciplinary body” — in other words at least a majority. [Oleksandr Volkov v. Ukraine, no. 21722/11, 9 January 2013]. In that case the ECtHR specifically referred to the European Charter on the Statute for Judges;

IGNORED the Council of Europe European Charter on the Statute for Judges that, referring to the composition of disciplinary boards, provides at paragraph 5.1 that “…at least one half of whose members must be elected judges;

IGNORED the Judges’ Charter in Europe (European Association of Judges) 1997that provides “9. Disciplinary sanctions for judicial misconduct must be entrusted to a body made up of members of the judiciary in accordance with fixed procedural rules.”;

IGNORED the Consultative Council of European Judges opinion No 1 (2001) which commended the European Charter insofar as it advocated that disciplinary proceedings against judges be conducted by an authority “with substantial judicial representation chosen democratically by other judges”. In other words at least a majority;

IGNORED the International Association of Judges in the Universal Charter of the Judge that provides at Article 7: “Disciplinary proceedings should be carried out by independent bodies, that include a majority of judges.”

IGNORED the Venice Commission that recommended that disciplinary proceedings are conducted by Judicial Councils. In Kosovo disciplinary measures are conducted by the Kosovo Judicial Council and heard by a panel comprising a majority of judges. Further, in respect of all other disciplinary proceedings brought against EULEX judges the panel comprised a majority of judges.

However, and most extraordinarily, the Appellate Panel did not find a breach of Article 6 of the European Convention on Human Rights even though one member of the panel was employed by the EEAS and subordinate to the EEAS staff member who had initiated the disciplinary proceedings.

The Decisions of the ECtHR in Ramos Nunes de Carvalho e Sá v. Portugal [2018] and Oleksandr Volkov v. Ukraine [2013] confirmed that Article 6 of the ECHR applies to disciplinary proceedings.

Article 6 provides that

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal…”

Article 6 of the ECHR guarantees a “fair hearing….by an independent and impartial tribunal.” In this particular case the Disciplinary Board comprised only one [former] judge. The other two members of the Board were civil servants — members of the Executive. One of the members was employed by the EEAS, the organisation that brought the disciplinary proceedings and subordinate to the person who initiated the proceedings. Any reasonable observer would quickly conclude that was not an “independent and impartial” tribunal as required by Article 6 of the ECHR. The Appellate Panel simply failed to address that obvious breach of Article 6.

Not only did the Board not comprise a majority of judges, the Board was also clearly not impartial.

The Decision of the Appellate Board was accepted in full by the EEAS. That decision sets back rule of law and judicial independence decades. Indeed, these are the very breaches for which the EU Commission has recently criticised Poland and Hungary.

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