EULEX’s Rorschach Test

24 April 2015

“It is regrettable that respect for the rule of law itself makes it difficult for the Mission to defend itself…  Under these conditions, how can the Mission respond to the press except to say that a judicial investigation is underway? A response which I fully understand is not sufficient for investigative journalists or for the public.  But that is the price of the rule of law.” 

- Professor Jean Paul Jacqué, from the report to HR/VP Mogherini regarding recent allegations against EULEX

Within EULEX, we had been looking forward to the completion of the report that HR/VP Mogherini had requested from the independent expert that she had chosen, Professor Jean Paul Jacqué.  Professor Jacqué was charged with investigating EULEX’s response to serious allegations against it made by one of its own staff people.  The report was released on 13 April, and in the two weeks since the release of the report of Jean Paul Jacqué, which reviewed the implementation of the EULEX mission’s Executive mandate, many have offered their analysis of the report’s contents.  

For those of us within EULEX, the price of rule of law is that there are truths that we cannot say publicly.  We knew that the allegations against us didn’t match our own observations and experiences, and we hoped that Jacqué, through his independent investigation, would see these truths as well.  Professor Jacqué‘s mandate was not to investigate the substance of the allegations- that is something for the judiciary.  Nonetheless, we were relieved - but not surprised - to read that he did not come across any evidence of a cover up at EULEX.  Professor Jacqué‘s report also confirmed that no cases were blocked, determined that EULEX prosecutors were functioning independently, and verified that EULEX has unequivocally supported the investigation into the allegations against its former staff member.  

As part of an overall set of “observations and recommendations”, Professor Jacqué also made suggestions for addressing structural and procedural issues within EULEX’s judicial functions and management of judicial personnel, and we intend to follow these recommendations to the fullest extent that our mandate allows.   In the same way that psychologists administer the famous Rorschach (inkblot) test in order to gain insight into the thoughts and proclivities of their patients, the varied interpretations of the Jacqué report give insight on the differing agendas of its readers.  Despite the generally positive tone of the report, many commentators focused on these 21 recommendations and used them to craft an argument about EULEX’s ineffectiveness and need for reform, largely ignoring the set of recommendations on the future of the Mission’s Executive mandate.  

With this report, others may see what they want, but I believe that this cannot become just an inkblot test for the mission.  The EU taxpayers fund this mission; and we cannot be blind to Professor Jacqué’s criticisms.  Frankly, I agree with many of them.  We have not yet achieved our objectives in the fight against corruption.  We’ve not been able to sufficiently track our judicial activities, and this has made evaluating performance and offering statistics difficult.  It’s clear to us that our judges and prosecutors are “independent” and we cannot interfere in a judge’s judgment or a prosecutor’s ongoing case, but how does this impact with providing oversight or discipline for judicial employees?   

Under the current mandate, which was agreed upon with Kosovo authorities, EULEX will not open new investigations or prosecutions except under extraordinary circumstances.  We work side by side with local judges and prosecutors, but Kosovo law no longer provides for formal mentoring and advising of judges and prosecutors by their EULEX colleagues.  In new cases for judge panels, EULEX judges are the minority.  These changes, which have been in effect since mid-2014, are intended to allow Kosovo to step forward and prove that it has the capability to provide Justice and Rule of Law fairly, and with formats and rules which operate independently of politics.  

Jacqué notes in his report that “progress has certainly been made thanks to EULEX”, but I also agree with Jacqué’s assessment that there is no point in EULEX staying just to keep doing the same thing.  Jacqué has made his recommendations; we must change, and so must Kosovo – everyone has work to do.  So, instead of working individually, looking for evidence to reinforce our own points of view, I hope that Kosovo’s government and citizens will join me in moving forward and focusing our efforts on addressing, together, the tasks at hand.