12 July 2021
Malcolm Simmons’s statement in the Assembly today is a collection of ill-conceived and unsubstantiated conjectures, untruths and personal opinions. Knowing that he cannot be sued for defamation, since Simmons’s statement is covered by the immunity of parliamentary privilege *, he engaged in a deliberate disinformation campaign related to wrongdoings allegedly occurring during his time in EULEX and aimed at serving ulterior motives and interests. We see this as another attempt to discredit the Mission by those interested in undermining the rule of law in Kosovo as well as the EU itself. It is also a reflection of Simmons’s dissatisfaction with the outcome of three investigations conducted against him by EU authorities in Brussels and submitted to his United Kingdom (UK) seconding authorities for further action. Simmons also seems to be discontent with the UK court dismissal of a civil claim that he brought against the Mission and other EU institutions in 2020. In short, he is unhappy with all legal proceedings against him.
On the professional background of Simmons in EULEX
Simmons was a UK employee seconded to EULEX since 2008 in several positions and throughout most of EULEX’s executive mandate, which ended in June 2018. Throughout this period, Simmons was seconded by the Foreign and Commonwealth Office (FCO). He is no longer working for the FCO, but according to Simmons’s own statement he was during his period in EULEX reporting regularly to UK authorities. He claimed today that in 2013 he shared his concerns with the UK Embassy, not with EULEX, the EU or the Kosovo authorities. After this, not only did he not leave EULEX but in 2014 he applied for and accepted to become President of the EULEX judges. End of 2015, Simmons proudly stated publicly that EULEX has been particularly effective in the type of cases it had been dealing with. According to Simmons’s statement today, in 2016 he also applied to become President of the Kosovo Specialist Chambers, but was not selected.
From 2014 to 2017 he was President of EULEX judges and, as such, he was responsible for directing and supervising the work of EULEX judges and evaluating their performance. As President of EULEX judges, Simmons was fully included in all judicial activities, including alleged irregularities he mentioned today, such as participating in the selection of judges and in case allocation.
If the presence of irregularities were so clear to him, then why did he not do his job as a supervisor and why did he not alert the EU authorities immediately? Instead of doing that, Simmons formally reported allegations of misconduct involving EULEX and EEAS staff only on 2 September 2017; that is, after several disciplinary proceedings for alleged misconduct had been initiated against him starting in October 2016. After EULEX, Simmons never served as a judge in the UK.
On the investigation of his allegations
In 2017, an independent investigation team led by a retired judge of the European Court of Justice was established in Brussels to investigate alleged breaches reported by Simmons. When provided with the opportunity to substantiate his various allegations, Simmons failed to cooperate with the investigation team nor did he provide evidence to support his claims.
On the statement given in a UK court
In 2018, Simmons brought legal proceedings before the London Central Employment Tribunal in the UK against his former employer, the FCO, and several EU institutions in which he again referred to many of the same allegations, framed in a completely different angle in the hope to win the court case against the FCO. In 2020, the London Central Employment Tribunal dismissed Simmons’s application to have EULEX and other EU institutions participate in these proceedings. Simmons did not file an appeal to this decision and the Mission considers the matter closed.
On his status as whistleblower
In view of the claims of Simmons being a whistleblower, he asked to become a whistleblower only after several disciplinary proceedings had been initiated against him. The initial report against Simmons for serious misconduct was filed on 7 October 2016, and the decision to launch disciplinary investigations was made in January 2017. Several months later, on 2 September 2017 Simmons reported allegations of misconduct involving EULEX and EEAS staff, requesting whistleblower protection. By then, there already were two ongoing disciplinary investigations against him, which suggests that he did not ask for whistleblower protection in good faith but in an effort to deflect attention from the investigations conducted against him.
On earlier investigations and principle of transparency
Simmons was the subject of independent investigations into serious allegations of misconduct in three individual cases, during his time as a judge at EULEX. These investigations were conducted and finalized by a disciplinary panel formed and based in Brussels, chaired by a former judge of the European Court of Justice. In all three cases, the advice of the disciplinary board was communicated to Simmons and his seconding authority, the United Kingdom Foreign and Commonwealth Office. The final decision on what measures to take in response to the advice of the disciplinary board regarding Simmons’s misconduct lies with his seconding authority in the UK.
In the interest of transparency, we call on Simmons to submit the reports, conclusions and recommendations of the disciplinary board to the Kosovo Assembly, allowing the MPs to fully scrutinize his claims. Only Simmons can submit these reports to the Assembly, as the rest of the institutions involved are bound by confidentiality.
On Simmons’s specific allegations today
“Klecka” case: Simmons’s claims on the “Klecka” case are contradicted by reality. He claims that a judge told him that his job could be at risk if the defendants were not convicted. However, after the trial panel, which was presided over by Simmons, acquitted the defendants in September 2013, Simmons not only did not lose his job, but he went on to be appointed President of the EULEX judges a year later. Simmons also said that “Klecka” was a case which should never have gone to trial. But he was the one who tried the case as the presiding judge of the trial panel. As such, he had every opportunity to recuse himself in case he did not agree with bringing the case to court.
“Drenica II” case: The panel composition in the “Drenica II” case was legal. No objections were raised by the parties regarding the composition of the trial panel during the main trial proceedings. Simmons should be reminded that after the 2018 Constitutional Court decision there was a November 2019 Constitutional Court decision by Kosovo only judges, who unanimously dismissed a final appeal in the “Drenica II” war crimes case, upholding five convictions. This refutes all allegations of bias on the side of the first instance trial panel.
On allegations that EULEX handed over case files to the Serbian prosecution authorities: We repeat: EULEX has never handed over any war crimes case to the Serbian prosecution authorities, nor did it give up authority over investigative files and cases. We challenge Simmons to identify any cases he claims the Mission handed over to the Serbian authorities.
On witness protection: Witness protection measures were provided in accordance with Kosovo legislation, to witnesses who came forward with evidence and who were credibly proven to be at serious risk after satisfying stringent selection criteria. EULEX continues to manage its own residual witness protection program until today and still provides security to witnesses within existing legal provisions.
EULEX’s staff contributes to Kosovo’s rule of law
Most institutions, including EULEX, have a Code of Conduct to address any disciplinary or ethical wrongdoings. For all institutions, it matters how such violations are addressed. EULEX took all allegations of any misconduct seriously and immediately started disciplinary proceedings against a limited number of staff members accused of wrongdoings, including any financial wrongdoing. However, EULEX represents much more than Simmons and the few others who became subjects of disciplinary proceedings. EULEX’s former international and local staff make up a “Who’s Who” of some the world’s most prominent legal minds. We are proud to see our former staff prosecuting and adjudicating cases in international and national courts or working as rule-of-law experts in various countries around the world. But most importantly, we are particularly proud of our former local staff who now work as judges, prosecutors and legal officers in Kosovo’s justice system.
*Article 9 of the Civil Law against Defamation and Insult provides immunity for any statement made by witnesses called upon to give evidence to parliamentary committees.