In 2017 the European External Action Service informed Judge Malcolm Simmons that he would be subject to a disciplinary investigation. It was alleged that (a) he had “improper” communication with defence counsel and (b) he “interfered” in a case. So what were the facts?
In the first case it was alleged Judge Malcolm Simmons had “improper” communications with defence counsel. What were those “improper” communications? The case in question was a war crime case involving soldiers of the Kosovo Liberation Army. Judge Simmons had performed no judicial function in that case. At that time he was President of EULEX Judges. His was primarily a managerial role. He was also responsible for overseeing the allocation of cases to judges.
In 2014 Judge Simmons was approached by defence counsel who expressed concern about the way EULEX judges had been assigned to the case. He had not been consulted in the assignment and learned about it some days later. A Polish Judge had been assigned to preside in that case. All trial panels comprised three judges (two EULEX and one local judge). Another Polish judge was then assigned to the case as the second EULEX judge. It was alleged by defence counsel that (i) the Polish Presiding Judge had requested the assignment of the second Polish judge to the case; (ii) the assignment of the second Polish judge did not follow objective case allocation rules; (iii) the two Polish judges were having an illicit affair and (iv) by reason of the aforesaid there were questions regarding the fairness of the proceedings. These were matters that should have been addressed.
On appeal, defence counsel again raised these matters with the Supreme Court. The Supreme Court appeal panel, comprising a majority of EULEX judges, decided not to hear the evidence of Judge Simmons regarding the way the panel had been selected.
The defendants referred the case to the Constitutional Court of Kosovo. In June 2018 the Constitutional Court of Kosovo decided the Supreme Court should have heard the evidence of Judge Malcolm Simmons and found the EULEX judges of the Supreme Court in breach of Article 6 of the ECHR (the defendants right to a fair trial).
The Second allegation against Judge Simmons was that he had “interfered” in a case. It was alleged that Judge Simmons had interfered in a case, in which another EULEX judge was presiding, by temporarily suspending the transfer of a high-risk prisoner from a maximum-security prison to a lower security prison. There was no dispute that Judge Malcolm Simmons had spoken with the judge in the case who had made the order to transfer the prisoner and that he had “invited” her to “reconsider” her decision to transfer the prisoner from the high security prison. The judge in the case was the same female Polish judge involved in the first allegation against Judge Simmons. Judge Simmons reminded the judge that the prisoner was high-risk and that there were substantiated concerns that he might attempt to interfere with witnesses. The Polish judge refused to reconsider her decision. Thereafter the Acting President of the Court — not Judge Simmons — issued an order temporarily suspending the transfer of the prisoner. The transfer eventually went ahead and the prisoner was transferred to the lower security prison. One week later, during a search of the prisoners cell, a mobile telephone was found and the telephone call log revealed the prisoner had been in communication with alleged co-conspirators and witnesses. A red-faced judge then decided to transfer the prisoner back to the high security prison. So, Judge Simmons’ “interference” was that, as senior EULEX judge he had had the temerity to discuss with a junior colleague the transfer of a high risk prisoner — concerns that proved well-founded.
Were these really matters in respect of which Judge Simmons should have been censured? The European External Action Service believed they were. Why? Did it have something to do with the fact that he had been exposed as a whistleblower?
In 2016 the EU received copies of the private emails of Judge Simmons. These emails had been obtained unlawfully. The emails revealed that since 2013 Judge Simmons had reported to the UK Foreign & Commonwealth Office allegations of serious misconduct involving senior staff and judges of the EU Rule of Law Mission in Kosovo. Judge Simmons referred two cases to OLAF — the EU Anti-Fraud Department.
Judge Malcolm Simmons asked the EU to conduct an independent investigation into the unlawful accessing of his private emails. The EU instructed EULEX to conduct the investigation. The investigation was opened and shortly thereafter Judge Simmons was informed the investigation had been “closed”. EULEX eventually gave him access to the investigation file that contained only the letter to him informing him the investigation had been closed. On three occasions Judge Malcolm Simmons asked the High Representative, Federica Moghirini, to start an independent investigation into the unlawful accessing of his private emails. She failed to reply to his requests. The UK Foreign & Commonwealth Office repeatedly asked the EU to conduct an independent investigation into the unlawful accessing of Judge Simmons’ email. It failed to do so.