Malcom Simmons, former head judge of the European Union Rule of Law Mission in Kosovo (EULEX), accuses EULEX that the cases the mission heard against former Kosovo Liberation Army (KLA) members were subject to political interference.
While waiting for the Kosovo Parliament to schedule a hearing on his claims against EULEX, Simmons talked to Exit News claiming that Charles Smith, former President of the Assembly of EULEX judges, based his decision-making on political considerations.
In an email that Exit News has seen, Smith asks Simmons that the case against former KLA commander turned politician, Fatmir Limaj – informally known as the “Kleçka” case – be scheduled for trial “asap.”
In his email sent on January 2013, Smith states that the request comes for a number of reasons, “mainly political.”
“I hope that you can get this case up and running quickly,” he also wrote.
EULEX submitted the indictment on the Kleçka case in 2011 and the trial started in January 2012, relying mainly on the testimony of the key witness Agim Zogaj who committed suicide while under the protective custody of EULEX in Germany.
After Limaj was acquitted in 2012, the Supreme Court of Kosovo ordered a retrial and Limaj was sent to detention.
Fatmir Limaj and nine others co-defendants (ex-KLA fighters) were charged with war crimes, for torturing Albanian and Serb civilians and prisoners in the Kleçka detention center throughout 1999.
The case was closed in May 2017 when the Supreme Court of Kosovo issued a verdict acquitting Limaj of war crimes charges.
EUELX vs SIMMONS
Contacted by Exit News to comment on Simmons’ allegations, EULEX stated that its judges and prosecutors were autonomous and independent and conducted their prosecution and adjudications based on the law.
Regarding Simmons’ claims, which EULEX describes as “one-sided and uncorroborated,” the mission says that Malcolm Simmons “refused to cooperate with an investigation team led by a retired judge of the European Court of Justice, which was established to investigate alleged breaches reported by him.”
“When provided with the opportunity to substantiate his various allegations, Mr Simmons failed to provide the investigation team with any evidence to support his allegations,” EULEX’s written answer reads.
Furthermore, according EULEX, an independent investigation led by a former judge of the European Court of Justice examined allegations of possible misconduct by Simmons in three individual cases during his time as a judge for EULEX. While the investigation was finalized, any final decision on how to proceed with the allegations against Simmons for misconduct were referred to the Foreign and Commonwealth Office in the UK, as his seconding authority.
Simmons, however, says that the disciplinary process was “a charade.”
“The process was designed to give the appearance of being credible and legitimate,” Simmons claimed in an interview for Exit News.
He added that the investigators, including the one led by the former Judge of the European Court of Justice, were also in possession of his private emails.
He alleged that it was only after a judge of an EU member state, employed by EULEX, hacked into his private emails, that the European External Action Service commenced disciplinary proceedings against him.
Simmons says that the emails revealed he was a whistle-blower and he reported to the UK Government and the EU anti-fraud agency “matters of serious concern within the EULEX.”
Exit News has seen an email sent to an UK Government officer in 2013, through which Simmons raises these concerns by mentioning a conversation he held with Charles Smith on the Kleçka case.
In the confidential email sent on July 11, 2013, Simmons quotes Smith as saying “You know the mission is expecting convictions?”.
“As we parted company […] he [Smith] said ‘unfortunately there will be job cuts in the restructuring…hopefully I won’t lose my best judges’. I was left in no doubt what he was telling me,” Simons wrote.
“The purpose of the disciplinary process was to remove me,” Simmons insisted during the interview.
“However, as I will demonstrate, the process was flawed and manipulated by the EEAS […] with the connivance of members of the disciplinary boards,” he adds.
Currently, Charles Smith is one of the international judges appointed to serve at The Hague-based Kosovo Specialist Chambers (KSC).
The Specialist Prosecutor’s Office (SPO) and the KSC were established by the Kosovo parliament at the insistence of the international community in August 2015.
It followed a 2011 Council of Europe report in which Swiss Senator Dick Marty addresses the alleged crimes that “members of the Kosovo Liberation Army [had committed] against ethnic minorities and political rivals” from January 1998 until December 2000.
Several KLA senior officials have been indicted by the SPO and KSC so far. Among them, former President Hashim Thaci, former parliament speakers Jakup Krasniqi and Kadri Veseli and former Vetevendoje MP Rexhep Selimi are facing war crimes charges while being held in detention facilities in The Hague.
The detention center in Kleçka is also mentioned in the confirmed indictment against Thaci, Veseli, Krasniqi and Selimi.
“Between at least November 1998 and June 1999, certain KLA members detained at least 20 persons for varying periods of time and without due process of law at a house and surrounding buildings near Kleçkë/Klečka, Lipjan/Lipljan. Detainees were tied, blindfolded, and held under armed guard. In1999, multiple KLA members, including Kadri VESELI, Rexhep SELIMI, Jakup KRASNIQI, and Fatmir LIMAJ, were involved in various aspects of the transfer, detention, and/or release of detainees held at the detention site near Kleçkë/Klečk,” reads the SPO’s indictment.
Exit News reached out to the KSC, asking how Charles Smith’s alleged demand that the Kleçka trial be scheduled as soon as possible, because of “political reasons,” would affect the credibility of the KSC.
“These claims have been raised by Mr Simmons with respect to his litigation regarding his employment with EULEX and the British Foreign Office. We do not comment on such claims,” KSC’s spokesperson, Angela Griep told Exit News in a written answer.
