How a British Judge Caused Turmoil at the EU’s Kosovo Mission

Malcolm Simmons giving a presentation for EULEX in November 2012. Photo: EULEX.

How a British Judge Caused Turmoil at the EU’s Kosovo Mission

7. June 2022.12:02
7. June 2022.12:02
Allegations of judicial interference and political pressure convulsed the European Union’s rule-of-law mission in Kosovo as a British lawyer who became a powerful judge despite lacking the required legal credentials was fired for misconduct.

This post is also available in: Bosnian

The end of 2017 was also the end of Malcolm Simmons’ career as an international judge in the Balkans.

He had never served as a judge in his home country, as the Judicial Office in the UK confirmed, but had nevertheless managed to make it as far as becoming the president of the Assembly of Judges of EULEX – the European Union rule-of-law mission tasked with establishing rule of law and a justice system in Kosovo.

Simmons had also been the presiding judge in high-profile, politically-sensitive war crimes cases like the Klecka trial, which ended in the acquittal of Fatmir Limaj, a wartime Kosovo Liberation Army guerrilla who went on to lead his own political party and serve as a minister after the war.

However, after two years of European Union investigations and three disciplinary hearings, Simmons was found culpable of misconduct and was ordered to be sent back to Britain, his home country.

For the past six years, Simmons has told anyone who will listen – including a Kosovo parliamentary committee in July 2021 – that he was a victim of political machinations by the EU. In a widely circulated article in Le Monde in November 2017, he described EULEX as a “farce” and claimed he resigned out of disgust.

However, the truth is that Simmons was appointed to positions for which he was not fully qualified – and the continuing consequences of this could still have an impact on an important witness intimidation case in The Hague.

BIRN spoke to Simmons himself as well as many of those with knowledge of what happened; they often requested anonymity in order to speak freely.

BIRN was also able to obtain the decisions from two out of the three EU disciplinary hearings that Simmons lost. The judgments support much of what BIRN found through independently interviewing witnesses.

From London to Bosnia

Sarajevo. Photo: Wikimedia Commons/Julian Nyča

Simmons corresponded with BIRN at length about his career and the accusations via email but he declined a face-to-face interview.

Simmons said that after qualifying as a solicitor, he worked for London law firms and then as an assistant deputy coroner in east London from 1997 to 2000. The coroner’s office clarified that an assistant deputy coroner is an “independent judicial officer that enquires into any sudden, unnatural or violent deaths”.

However, to be a coroner or assistant deputy coroner, one does not need to be a judge. The Judicial Office in the UK confirmed that Simmons has never been a judge in England and Wales.

In 2001, he got a legal adviser role for the International Council of Judiciary, a body set up within the Office of the High Representative, which oversees the implementation of the peace deal that ended the war in Bosnia and Herzegovina, to rebuild the judiciary in the country. Unusually, he had no master’s degree, which is usually a requirement for even an entry-level international legal position overseas.

In 2004, he became a judge at the Court of Bosnia and Herzegovina, with his application supported by the British Foreign, Commonwealth and Development Office, despite his lack of experience under a UN regulation that requires judicial bench experience in an individual’s home country before he or she can be appointed to a bench abroad. The UN regulation from 2000, which applies to the countries sending the international judges, says they are required to have at least five years of experience as a judge in their home country before being stationed abroad.

BIRN asked the Foreign, Commonwealth and Development Office why it approved people for such positions without the required judicial experience, but did not receive a direct response, just a general statement saying that it does not comment on “private, internal communications with staff or secondees”.

Meanwhile, journalist Natalia Zaba reported in an article for the Southeast Europe Coalition on Whistleblower Protection that while Simmons was working in Bosnia and Herzegovina, he referred to himself as ‘Dr’ in articles and in Bosnian court documents. He dropped this title in Kosovo.

In Bosnia and Herzegovina, he clashed with the president of the state court, Meddzida Kreso. She accused Simmons of not knowing Bosnian law and lobbied to get him removed as a judge. “We heard that one of the judges had never been a judge (in his home country),” Kreso told the Southeast Europe Coalition on Whistleblower Protection. “He wasn’t acquainted with Bosnian law, nor was he willing to become acquainted with it. He was even unwilling to consult domestic law. I learned this from local judges he worked with.”

According to a report in Slobodna Bosna, published in 2017, the dispute was even more serious: “As the president of the Court of Bosnia and Herzegovina [Kreso] revealed at the time, her conflict with Simmons erupted after he asked her to make a list of all indictees for war crimes in Bosnia and Herzegovina and make an analysis of their nationality [ethnicity],” the report said.

“After Kreso refused to do so, Simmons is accused of having launched a campaign against her, and even included some [British] officers in SFOR [the NATO peacekeeping force in Bosnia]. The SFOR command in Bosnia and Herzegovina assessed that such pressure was inadmissible and fired the officers who took part in it,” it added.

Simmons says the dispute happened because Kreso favoured certain judges by allowing them to go on overseas training trips, and that she wanted two close protection officers while other judges only had one.

He says he was supported by Britain’s then ambassador to Sarajevo, Matthew Rycroft, a claim also reported in the Slobodna Bosna article. Simmons claimed others in the international community supported him as well. Kreso could not be reached and Rycroft declined to comment.

Simmons remained a judge for four years in Bosnia, presiding over prominent corruption cases like that of Ante Jelavic, a Bosnian Croat politician who had chaired the presidency of Bosnia and Herzegovina. Then, he says, the UK government approached him about going to Kosovo and joining the EU’s rule-of-law mission EULEX.

From Bosnia to Kosovo

The EULEX headquarters in Pristina. Photo: EULEX.

Simmons arrived in Kosovo in 2008 and spent almost a decade working for EULEX in Pristina, seconded by the UK Foreign, Commonwealth and Development Office.

When he was asked during a Kosovo parliamentary session in July 2021 about his lack of judicial experience for the EULEX job, he said he had been a judge in Sarajevo for four years and that he was interviewed by an EULEX panel “and they knew what my qualifications were”.

He told BIRN the same thing: “Everyone knew what my experience was. I was interviewed by a panel of international judges.”

When BIRN asked EULEX about its hiring process, spokesperson Ioanna Lachana explained why the mission made no background checks on Simmons.

“There are two ways of recruitment: seconded and contracted. For the contracted staff, the mission is responsible for verifying their background and credentials. For the seconded staff, it is the seconding state that must verify and certify the candidates that fulfil the criteria. Simmons was seconded by the UK. No background check was therefore conducted to verify his credentials,” said Lachana.

This was confirmed by Peter Stano, the EU’s foreign policy spokesperson, who said that “the EU is run by its member states… we trust them when it comes to nominations”.

Richard Le Vay, spokesperson for the British Embassy in Pristina, said that “Mr Simmons met the criteria to be put forward by the FCO [Foreign and Commonwealth Office] for the role and was deemed worthy of consideration by EULEX. EULEX ran the recruitment process and Mr Simmons was selected by EULEX.”

The rule-of-law mission EULEX is still the European Union’s largest-ever Common Security and Defence Policy mission, even though in 2018 it handed over its executive functions to the Kosovo authorities and no longer has judges and prosecutors in the country or holds trials as it did before. It does, however, maintain a monitoring and security mission.

In Simmons’ time, EULEX’s role was to build Kosovo’s justice system and use international judges and prosecutors to try sensitive cases – war crimes and corruption cases primarily. That often meant handling highly sensitive cases that involved leading Kosovo politicians. The cases were also being heard as the EU was struggling to get Kosovo and Serbia to normalise their relations at long-running talks in Brussels, which provided another political dimension to the judicial process.

The Klecka case

Former Kosovo Liberation Army fighter and government minister Fatmir Limaj goes to court in Pristina for the Klecka trial in November 2011. Photo: EPA/VALDRIN XHEMAJ.

Simmons was the presiding judge in the retrial of the high-profile Klecka case, which involved accusations that Kosovo Liberation Army guerrillas tortured and mistreated prisoners at a detention facility during the 1998-99 war. The most prominent defendant was Fatmir Limaj, the head of the NISMA party and Kosovo’s former minister of transport and infrastructure, who had been a KLA guerrilla commander in wartime.

Limaj had already been acquitted in two trials at the UN war crimes tribunal in The Hague, and Simmons believed that the case should never have gone to trial in Kosovo because it was too weak.

However, US judge Dean Pineles, a Harvard graduate with over 40 years of legal and judicial experience, who sat on the judging panel in the first-instance trial, felt the Klecka case was “entirely worthy of a full trial, both legally and factually”, and wrote an article to rebut Simmons’ opinion.

What the case boiled down to was one key witness, Agim Zogaj, who had kept a diary of his time as a guard at the KLA’s Klecka detention facility and recorded the crimes. But before the case came to trial, Zogaj killed himself in Germany.

Simmons felt the case shouldn’t go forward without the defence being able to cross-examine the witness. He argued that Zogaj’s evidence was contradicted by forensic evidence, other witnesses and his own previous statements. “Given all of that, I don’t think any sensible prosecutor would have taken the case to trial,” he said.

But Pineles, in a forthcoming book, argues that Zogaj had answered over “1,000 questions” in the discovery phase of the case by the defence lawyers and did not waver.

Simmons also argued that Zogaj had a history of mental illness that meant he was an unreliable witness. But he denied the prosecution’s request to call a psychiatrist as a witness, according to interviews with those close to the case.

One source close to the case said that Zogaj’s statements led investigators straight to evidence: “His statements were like a map.”

Simmons, however, has alleged that he was being pushed by the EU to convict the defendants. He claims that Kenneth Deane, then civilian operations head of the Common Security and Defence Policy, who managed all the EU’s missions, told him that convictions were needed.

Deane had no direct supervisory role over Simmons or the other two members of the judging panel. But Simmons claims that in one case, Deane “instructed EULEX not to take any action” over Simmons’ complaint that the EU was exerting pressure on the judiciary for political reasons. Simmons said he has the letter but declined to show it to BIRN. Deane no longer works for the European Union.

Simmons did show BIRN part of a letter from Charles L. Smith, the former vice-president of EULEX judges who is now a judge at the Kosovo Specialist Chambers. The letter said that Smith wanted to schedule the case for trial because of political and other concerns. Smith, through the KSC, declined to comment.

Simmons claims he felt he was being pushed to convict because of the EU-mediated Belgrade-Pristina dialogue aimed at normalising relations between Kosovo and Serbia. He said that the EU felt that Serbia would not continue with the dialogue unless there were convictions of KLA guerrillas.

Stano rejected this suggestion: “I mean this remark is so absurd that I think it disqualifies itself. I mean, what could the number of convicted people mean, whether it’s ten or 100? What could it move in the dialogue, whose success depends on the ability of Kosovo and Serbia to agree on a compromise on a legally binding comprehensive agreement on normalisation of relations?”

Despite the EU’s alleged pressure for a conviction, Simmons decided to acquit the defendants, including Limaj. After this, he was promoted to president of the EULEX Assembly of Judges.

However, once again, he did not have the correct qualifications for the role – as highlighted by page 31 of this EULEX document about the job – despite his judicial experience in the Balkans. To qualify he needed a master’s degree and “at least 10 years of professional experience as a judge, preferably also in higher/appeals courts”.

The president of the EULEX Assembly of Judges is essentially a management role and Simmons oversaw all the judges and all judicial matters at EULEX.

After the acquittals in the retrial, the Klecka case went on to be appealed. As the president of the EULEX Assembly of Judges, Simmons took part in the selection of the judges that heard the appeal.

Media in Kosovo then began to publish allegations of personal and professional misconduct against the lead appeals judge. According to the EU, a confidential memorandum, a case assessment shared only between the members of the judging panel, had been stolen from the lead judges’ chambers. The EU started to investigate Simmons.

BIRN has seen two documents containing the conclusions of Simmons’ disciplinary hearings. One of them, issued on December 13, 2017 and labelled ‘Case number 2017-1’ concerns his behaviour in the Klecka case.

“Having been the presiding judge in the Klecka case at first instance [in the retrial], Judge Simmons had a professional and possibly a moral interest in the outcome of the appeal. By the time he acceded to the presidency of the EULEX judges in October 2014, it was well known that certain of the EULEX judges who had examined the case harboured doubts about the facts found by the trial court.”

The document then continues by saying: “In these circumstances, it was particularly important that Judge Simmons take no part whatsoever in the selection of the EULEX judges to hear a case which could have resulted in the overturning of a judgment in the drafting of which he played a leading role at first instance… Moreover, Judge Simmons’ conduct contravened the principle of the lawful judge.

Simmons claimed he had every right to select the panel as president of the EULEX judges, but the EU disciplinary panel disagreed.

The disciplinary board did clear Simmons of three other charges, including other allegations of judicial interference in the Klecka case, due to a lack of evidence.

But it found that he was guilty of one charge of interference in the Klecka case and ordered that he be “repatriated with immediate effect” to his home country.

The Drenica II case

Kosovo Albanians protest outside parliament with pictures of KLA ex-fighter Sulejman Selimi after he was convicted in the Drenica II trial in May 2015. Photo: EPA/VALDRIN XHEMAJ.

While Simmons was president of the EULEX Assembly of Judges, he was also involved in the selection of the judging panel in another high-profile case, known as Drenica II, which again ran into controversy.

The defendants in the Drenica II case, former KLA guerrillas accused of committing war crimes including torture against civilian prisoners, included some more high-profile figures – Kosovo’s ambassador to Albania, Sylejman Selimi, and the mayor of Skenderaj/Srbica, Sami Lushtaku.

Two Polish judges were selected for the panel of the Drenica II case, but Simmons alleged they were having an affair and that one of them had made anti-Albanian statements.

Gregor Guy Smith, the lawyer for defendant Sylejman Selimi in the case, told BIRN that he had several conversations with Simmons and reported his concerns that the two Polish judges were involved in a relationship.

The alleged affair and insulting comments were seen by Simmons as a possible bias issue. But there was little evidence other than a reported sighting of the two Poles in Albania and Simmons’ assertions. No one who spoke to BIRN backed the allegations about the comments or the affair.

However, Simmons agreed to testify about these incidents in the Drenica II trial on behalf of the defence.

Simmons maintains that all of his communications with Guy Smith were transparent and recorded. Guy Smith concurred, saying he never met Simmons, but only communicated with him via email. He told BIRN that he felt that Simmons was simply trying to hold the two judges to standards of complete judicial impartiality and ethical behaviour.

Guy Smith maintains that he wanted a hearing held on the allegations against the two judges including additional allegations that the lead judge was anti-Albanian. But the hearing was not held and Guy Smith said this meant his client was not allowed to find out whether he had an impartial judging panel.

The EU disciplinary panel decision on the allegations that Simmons interfered in the Drenica II case, dated December 15, 2017, said that “in representing and promoting the case for one of the parties to legal proceedings [the defence], Judge Simmons was clearly not acting in an impartial manner”.

The disciplinary panel found that Simmons was so insistent on testifying for the defence that he sent 13 emails to one of the three judges in the Drenica II case, and five emails to another. “I am willing to give evidence and I believe that it would be in the interests of justice for me to do so,” Simmons wrote.

The disciplinary procedure document explains that Simmons’ persistence in trying to influence the panel in a case he was not a part of was further complicated by the fact that as the president of the Assembly of Judges, he was the direct manager of the judges he was seeking to convince to allow him to testify for the defence.

The document concludes: “Judge Simmons’ seniority as a member of EULEX Mission since 2008 and his position as President of EULEX Judges would justify the expectation that his conduct respond to the highest standards and level of integrity, and that he be an example to his fellow judges. In the present case, his conduct was both intentional and repeated, and his abuse of his position as President of EULEX judges was egregious.”

It also accused him of misleading the judges in the Drenica cases and the head of EULEX’s Human Rights Legal Office. His emails became even more insistent, it said, and the disciplinary panel noted that it was strange that, with all his experience, Simmons didn’t seem to understand the correct procedure in such situations.

The Drenica II case continued and the defendants were found guilty. Simmons still claims that the judges’ supposed affair somehow skewed the judging panel towards a guilty verdict.

However, the appeals court – which had a panel made up of Kosovo judges – also disagreed with Simmons on this. Its judgment said that the alleged violations by the two Polish judges “do not constitute a violation of the relevant law” and would therefore be an internal matter for EULEX to decide upon.

Continuing consequences for Kosovo

Malcolm Simmons speaks to the Kosovo Assembly via Zoom in July 2021. Photo: BIRN.

In Simmons’ testimony to the Kosovo parliamentary committee on July 12, 2021 to discuss his allegations, he claimed that the Polish judges were there to line their “pockets with gold” and in many cases had only worked in “traffic courts”.

Simmons, who earned 15,600 euros a month working at EULEX, had never worked in any courts in his home country and never became a barrister.

BIRN checked the backgrounds of the judges that Simmons criticised and all were highly qualified and worked as judges in criminal cases in their home countries – unlike Simmons.

Simmons voiced many criticisms of the disciplinary process against him but declined to show the relevant documents to BIRN. He said he wanted it to be clear that he is not refusing to make the documents public, but can only do so after a full parliamentary enquiry in Kosovo. He also said that he has been advised not to release the documents by his local legal counsel.

The Kosovo parliament has heard his testimony but, almost a year since he testified, has not decided to open any parliamentary enquiry.

In November 2017, the UK’s Foreign, Commonwealth and Development Office held an employment tribunal on Simmons’ status. Simmons brought the case in order to clarify his employment situation because he wanted a post “somewhere closer to the UK, if not in the UK itself”.

However, the employment tribunal judge said there were no jobs available for him. He had already been turned down for a post at the Kosovo Specialist Chambers in The Hague.

The tribunal determined that Simmons was seconded to EULEX by his government and technically worked directly for the Foreign Office. The Foreign Office’s Stabilisation Unit, which reports directly to the prime minister’s office, approved his position.

While EULEX was his “line manager”, his employer was his own government. The UK ultimately selected him for the post, regularly appraised his work and repeatedly extended his contract. The Foreign Office even made an exception for him to receive additional extensions beyond the four-year service limit.

The EU employment tribunal hearing reports were delivered in full to the UK government. BIRN submitted a Freedom of Information request for the reports but was told by the UK government that while it has some of the requested materials, for reasons of “international relations”, it will not give them to BIRN.

Stano said that the EU will not pursue Simmons’ allegations any further: “We feel that EULEX is robust and can manage this. And the UK is no longer a member state.”

However, Simmons’ claims continued to have consequences. Charles L. Smith was asked to recuse himself from the Nasim Haradinaj trial at the Kosovo Specialist Chambers because of Simmons’ accusations of politically motivated interference, but refused.

Haradinaj, deputy leader of the Kosovo Liberation Army Veterans’ Organisation, was tried and convicted for leaking confidential court documents to the media. Haradinaj claimed that Simmons’ remarks showed that Smith was biased against the KLA.

From 2017 until this year, Simmons worked periodically as a judicial advisor in the Maldives in the Indian Ocean as part of a programme supported by the UN Development Project, UNDP, and the UK embassy in the country.

In February, he was named acting Supreme Court judge and Master Coroner to the Falkland Islands, South Georgia, the South Sandwich Islands and the British Antarctic Territory, remote British overseas territories in the South Atlantic ocean.

“For many years, I have wanted to visit the Falklands but have never had the opportunity. When this vacancy arose, I jumped at the opportunity,” Simmons was quoted as saying by the South Atlantic News Agency.

Bronwyn Jones

This post is also available in: Bosnian