UK Foreign, Commonwealth and Development Office pays six-figure Damages in a whistleblower Case Days before Judge Malcolm Simmons was expected to Give Evidence

Bronwyn Jones, writing for Birn, re-hashes the tired fiction and distortions of truth that for so long have been circulated by the EU press. Let’s not forget: Birn is funded directly and indirectly by the EU and the UK.

Her article is presented as an objective, unbiased opinion. It is anything but that. She fails to report my responses to her allegations. She fails to report the many positive statements that she received about my character and professionalism. She failed to undertake the enquiries I invited her to undertake. She failed to report my responses to many of her accusations. Other accusations she did not ask me about. Instead, she crawls around in the dirt listening to anyone who might have a bad word to say about me.

The timing of the Birn publication is interesting, having been made within 48 hours of the UK Foreign Office agreeing to pay substantial damages to a former Foreign Office employee who alleged corruption in EULEX. The UK Foreign Office settled that claim in order to avoid those matters being the subject of scrutiny by an independent court. Indeed, the offer in settlement was made by the Foreign Office within days of my statement being filed in court. The UK Foreign Office had, at the time of settling the claim, created an internal briefing note on managing negative publicity that it anticipated would follow publication of the case. Let me be clear: I am not suggesting it was anything more than a remarkable coincidence that Birn published its story when it did.

I served as an international judge of the Court of Bosnia & Herzegovina in Sarajevo from 2004 to 2008, assigned to the Special Panel for War Crimes and the Special Panel for Organised Crime. Following an interview process, I was appointed an International Member of the High Judicial Council of Bosnia & Herzegovina. I was appointed a judge in 2008 by the EUPT (predecessor of EULEX) following an interview by senior EU judges, including the then President of the Assembly of EULEX Judges. I was appointed an International Member of the Kosovo Judicial Council following a selection and interview process. I was appointed President of EULEX Judges in 2014 following an interview by senior management and senior judges of EULEX in Pristina and senior staff of the EEAS in Brussels. I served as a judge of the Court of Appeals and the Supreme Court. In 2016, I was selected for appointment for the Kosovo Specialist Chambers, having been interviewed by a panel of senior international judges (including a highly-respected judge of the ICTY in the Hague) who tested my legal knowledge and skills. Does Bronwyn Jones mention any of that? Why would she, it would undermine the purpose of her story.

When I left EULEX I had served as an international judge for 13 years. My appraisals by senior staff in EULEX were always exemplary. My contracts were renewed regularly. Any contract extension had to be approved by EULEX. Not once did EULEX claim I was not qualified. Not once did EULEX express any concern to the UK Foreign Office that I did not possess the necessary skills or experience. It fully endorsed my contract extensions. Indeed, in 2014 EULEX even promoted me to President of EULEX Judges. It was only AFTER I blew the whistle on corruption that EULEX decided I wasn’t qualified. Did Bronwyn Jones ask EULEX how many times it had written to the UK Foreign Office to complain about my competence or professionalism BEFORE I blew the whistle on corruption?

Bronwyn Jones mentions the Klecka and Drenica cases. She refers to my former colleague, Judge Dean Pineles, who was the lone dissenting voice on the first trial panel in Klecka. In his opinion it was correct the case went to trial. I disagree. Having read my long and very detailed judgment in which I summarily dismiss the charges, Judge Pineles himself said in an email to me “A very impressive piece of work” (remember, according to Bronwyn Jones and EULEX, I am not competent to sit as a judge). He goes on to say “The analysis of Zogajs credibility was extremely thorough and your conclusions are certainly well grounded” (praise indeed from a Harvard graduate). Judge Pineles continues “I still believe a full trial was warranted even if the outcome was predictable. Now the judgment is based on the evidence, or the lack thereof, rather than what we would call a technicality.” So, Judge Pineles, the person Bronwyn Jones cites as my intellectual superior (indeed he might be) thought the outcome was “predictable” given the lack of evidence. Again, I ask the question: why go to trial when there is a “lack” of evidence and the outcome is predictable? In England, the case would not have seen the inside of a courtroom.

Drenica is also interesting. Bronwyn Jones refers to my having written to the appellate panel inviting it to hear my evidence. What she doesn’t tell you is that the panel contacted me and asked me to summarise the evidence I would give IF called to appear before the court. Having told the appeal court there was clear evidence the composition of the panel had been manipulated and the defendants had not received a fair trial, they chose not to call me. What a surprise. She describes me as being insistent. Maybe I could see what the other EULEX judges apparently could not: if the court did not hear my evidence, it would breach the most basic fair trial principles. Inevitably, the Kosovo Constitutional Court found the panel in Drenica had denied the defendants their right to a fair trial under Article 6 of the European Convention on Human Rights — because they did not hear my evidence. A panel of EU judges working in an EU rule of law mission found to have denied the defendant his right to a fair trial. It does not get much worse than that. On the very same day the Constitutional Court handed down its decision in Drenica, the EEAS commenced another disciplinary investigation against me. Was that another remarkable coincidence or evidence of the vindictive and wholly unjustifiable attitude of senior managers towards me. You decide.

Bronwyn Jones refers to my documented claims of an attempt by a EULEX judge to interfere in Klecka. Mine was not the only allegation of interference by the judge in question. I am aware of two other documented allegations in which different EULEX judges complained about interference by the same judge in two other cases. Mere coincidence or a pattern of behaviour?

Ms. Jones also refers to the disciplinary investigation that was initiated against me by the very people I had accused of serious misconduct. She and EULEX desperately try and avoid any discussion regarding the composition of the disciplinary panel or the perverted process. It is very clear why: it was a sham process.

The panel comprised three persons. Only one was a judge. That was a breach of international jurisprudence, including decisions of the European Court of Justice, that a disciplinary panel in such cases should comprise ‘at least a majority’ of judges. These persons were selected by the very persons I had accused of misconduct. One was a logistics officer. You might wonder what qualification he had to decide whether a judge had acted appropriately in exercising his judicial function. Well, he had the perfect qualification: he was subordinate to one of the persons I had accused of corruption.

That’s the composition of the panel. Now let’s look at the process. The panel ignored important exculpatory evidence, including statements of senior judges. Indeed, in its decision, the panel does not even refer to those statements. Why would they? They were inconvenient and did not support the conclusion the panel wished to reach. I was not allowed to be present when the panel interviewed the witnesses it called to make a statement. I was only given what the panel described as a “resume” of their evidence. In other words, I received a brief summary of what the witness had said. I did not get to see everything the witness said but only those parts of their evidence the panel wanted me to see. I was not permitted to cross-examine witnesses. I had no opportunity to ask my own questions and witnesses proposed by my lawyers were not called to give evidence. The only witnesses who gave evidence to the panel were witnesses called by the panel. No defence witnesses were permitted to give evidence and no documentary evidence that I proposed was considered by the panel. Was this a ‘fair and impartial’ tribunal? Bronwyn Jones told me EULEX believes the process was fair and impartial. The UK Foreign Office initially said it believed the process was fair. The UK Foreign Office knew the process was not fair. I wrote to staff of the UK Foreign Office on countless occasions to point out irregularities in the process. Its staff cannot claim ignorance or that it relied on false assurances given it by the EEAS. The UK Foreign Office deliberately chose not to enquire. It refused to intervene, instead condoning the perverted process.

The disciplinary investigation against me was commenced AFTER a fellow EULEX judge hacked into my private email account. Those emails revealed that I was a whistle blower and that since 2013 I had reported serious misconduct to both the UK Foreign Office and to the EU Anti-Fraud Agency. The EU Anti-Fraud Agency found there had been fraud.

I demanded an independent investigation into the hacking of my private emails. That request was refused. Instead, an internal investigation was conducted by EULEX. When I insisted that person’s I knew to be in possession of my private emails be interviewed, including the famous former judge of the European Court of Justice who was investigating the allegations that had been made against me, I was informed by EULEX that the investigation into the hacking of my private emails had been “closed”. I was given no explanation. I demanded to see the investigation file to see what steps the investigators had taken and who had been interviewed. That request was initially refused. When I was eventually given access to the investigation file, it contained only one document: the notification informing me the investigation had been closed.

The UK Foreign Office has stated that it “repeatedly” asked the EEAS to conduct an independent investigation into the hacking of my private emails. However, the UK Foreign Office has not been able to produce a single document in which it had asked the EEAS to conduct such an investigation.

The senior staff members of the EEAS who initiated the investigation against me were in possession of my hacked private emails. They were persons I had accused of serious misconduct. Indeed, they were the same persons who refused to initiate an independent investigation into the hacking of my private emails. One of those persons had interfered in an investigation involving senior staff of another EU mission. The same person had attempted to frustrate an investigation into corruption in EULEX. Internal emails between senior staff of the UK Foreign Office in the UK and Brussels suggest serious concerns had been raised by several EU Member States regarding the management of the EEAS.

The UK Foreign Office has now disclosed documents that includes a memo to the UK Representative in Brussels, Angus Lapsley, instructing him the UK Foreign Office did not want an independent investigation into allegations of corruption. However, the memo goes much further. It specifically states that, even if other Member States DO want an independent investigation, the UK Representative should argue against one. These were allegations that should have been the subject of investigation — not simply summarily dismissed by diplomats. Of course, I was not the only former UK Foreign Office employee whose allegations of corruption were ignored by the UK Foreign Office. That too will be the subject of an inquiry in the UK. Why did the UK Ambassador tell me that I would be seen as a “troublemaker” if I pursued allegations of corruption? Is that the reason the UK Foreign Office refused to intervene in the disciplinary process? Did they see it as a way of getting rid of a ‘troublemaker’?

The UK Foreign Office knew the disciplinary process had been perverted by the persons I had accused of corruption. It chose not to enquire or intervene, presumably believing that ignorance provided a defence. It does not. Choosing to look the other way is not a defence. The Foreign Secretary at the time was Boris Johnson. I subsequently asked the then Foreign Secretary, now Justice Secretary, Dominic Raab, to refer the matter to the Parliamentary Foreign Affairs Committee. He refused claiming a “conflict of interest”. They too will have questions to answer.

From the very beginning, I have sought an acknowledgement that the disciplinary process to which I was subjected was unfair. The UK Foreign Office has refused to give me that acknowledgement. Had it done so, we might not be here.

The UK Foreign Office has paid very substantial damages to another former employee who made allegations of corruption similar to mine and, in some instances, involving the same persons. Like me, she was victimised by EULEX and the UK Foreign Office. It is now impossible to resist calls for an inquiry by a committee of the UK Parliament into the role of the UK Foreign Office in these and other matters. Inevitably, there will also be questions for other UK nationals implicated in these events.