From 2008 to 2017 I was seconded by the UK Foreign & Commonwealth Office to EULEX, the EU Rule of Law Mission in Kosovo.
I had previously served as an international judge of the court of Bosnia & Herzegovina from 2004 to 2008.
In 2017 the European External Action Service (EEAS) commenced a disciplinary investigation against me.
EULEX and the European External Action Service continue to assert that I was found responsible by a disciplinary board of misconduct, that an English court dismissed my claims of misconduct against EULEX and the EEAS and that, in consequence, my evidence cannot be accepted as reliable. I shall deal with each of these matters in turn.
It is correct that disciplinary proceedings were commenced against me. It is also correct that the disciplinary board found against me. I do not dispute any of that. However, the disciplinary process was a charade. It was initiated by senior staff of the EEAS whom I had accused of serious misconduct. Those same persons initiated the disciplinary investigation and referred the allegations to a disciplinary board. Those same persons conspired with investigators and members of the disciplinary board. The conspiracy to pervert the course of justice did not stop there. It went to the top of the EEAS.
Since 2013 I had reported to the UK Foreign & Commonwealth Office instances of serious misconduct of EULEX staff, including the commission of criminal offences and interference by EULEX senior management in criminal trials. EULEX failed to initiate any investigations.
In 2016 a judge of an EU Member State, employed by EULEX, unlawfully accessed my private emails. Copies of my emails were given to senior staff of the EEAS. These emails revealed that I was a whistle blower and that I had reported to the UK Government and the EU anti-fraud agency matters of serious concern within the EULEX Mission in Kosovo including the commission of criminal offences.
It was only after the disclosure of my private emails, that the European External Action Service commenced disciplinary proceedings against me.
The persons in charge of those disciplinary proceedings were persons who were in receipt of my private emails and persons I had accused of serious misconduct. The investigators, including a former Judge of the European Court of Justice, were also in possession of my private emails. This is the famous “former judge of the European Court of Justice” to which EULEX and the EU often refer in order to give its contrived disciplinary process some vestige of credibility.
I demanded an independent investigation into the hacking of my private emails. That request was refused by the EEAS. Instead, an investigation was conducted by EULEX. When I insisted that the former judge of the European Court of Justice who was investigating the allegations against me be interviewed, I was informed by Bernd Thran, Deputy Head of Mission of EULEX, that the investigation into the hacking of my 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 which witnesses had been interviewed. I was eventually given access to the investigation file. When I opened the file, it contained only one document and that was the notification to me informing me the investigation had been closed.
Despite “repeated requests” of the UK FCO, the EEAS failed to initiate an independent investigation into the unlawful accessing of my private emails.
The High Representative has never denied that the EEAS received copies of my private emails. The High Representative has refused to initiate an independent, transparent investigation into the unlawful accessing of my private emails despite the repeated requests of the UK Government.
A judge of an EU Member State working in an EU Rule of Law Mission unlawfully accessing the private email account of another judge. There is no wonder the EEAS did not want an independent investigation!
The allegations against me were referred by the people I accused of serious misconduct to a disciplinary Board. The board comprised three members. Only one member of the Board was a judge. The other two members included a lawyer working within the EU system and a Logistics Officer employed by the EEAS who was subordinate to the very persons I had accused of serious misconduct!
The European Court of Human Rights has made it very clear in its decisions that in disciplinary proceedings against judges a majority of the board should be judges. In my case only one member was a judge.
That was not the only abuse of the disciplinary process. The Board ignored important exculpatory evidence. My lawyers gave the Board three very important, and exculpatory, witness statements. Two of those statements were from senior judges. Those statements were ignored by the Board. In fact, the Board did not even refer to those witnesses in its decision.
Further, I was not present when other, important, witnesses were examined by the Board. Instead, I was sent what the Board referred to as a “resume” of their evidence. I had no opportunity to challenge their evidence or ask my own questions.
The disciplinary process was a sham designed by the EEAS to provide it with grounds to remove me. It was never intended to find the truth.
I filed an appeal that was heard by an appeals board comprising three EU judges. That appeal was heard in May 2019.
The Appeals Board did not consider the substance of the allegations that had been made against me. The decision of the Appeals Board was littered with factual inaccuracies and reached conclusions unsupported by fact or law. However, what was most disturbing was the Appeals Board finding on matters relating to the disciplinary process and, in particular, the composition of the Disciplinary Board.
Although legally and structurally flawed, the decision of the Appeals Board supports the following conclusions:
(a) there was no requirement that a disciplinary board hearing a complaint against a judge should comprise a majority of judges and
(b) it was irrelevant that a member of the board was an employee of the department that commenced the disciplinary proceedings and (i) subordinate to the person who commenced the disciplinary proceedings and (ii) subordinate to a person whom the subject of the disciplinary proceedings had accused of misconduct.
The decision of the Appeals board:
IGNORED decisions of the European Court of Human Rights that had held that, with respect to disciplinary proceedings against judges, there was a requirement of a “substantial participation of judges in the relevant disciplinary body” — in other words at least a majority.
IGNORED the Council of Europe European Charter on the Statute for Judges that, referring to the composition of disciplinary boards, provides at paragraph 5.1 that “…at least one half of whose members must be elected judges;
IGNORED the Judges’ Charter in Europe (European Association of Judges) 1997that provides “9. Disciplinary sanctions for judicial misconduct must be entrusted to a body made up of members of the judiciary in accordance with fixed procedural rules.”;
IGNORED the Consultative Council of European Judges opinion No 1 (2001) which commended the European Charter insofar as it advocated that disciplinary proceedings against judges be conducted by an authority “with substantial judicial representation chosen democratically by other judges”. In other words at least a majority;
IGNORED the International Association of Judges in the Universal Charter of the Judge that provides at Article 7: “Disciplinary proceedings should be carried out by independent bodies, that include a majority of judges.”
IGNORED the Venice Commission that recommended that disciplinary proceedings are conducted by Judicial Councils. In Kosovo disciplinary measures are conducted by the Kosovo Judicial Council and heard by a panel comprising a majority of judges. Further, in respect of all other disciplinary proceedings brought against EULEX judges the panel comprised a majority of judges;
IGNORED Article 6 of the ECHR that provides “In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Mine was not a tribunal established by law. That was a clear breach of the EULEX Operational Plan, Code of Conduct and previous practice. Disciplinary matters involving judges serving within EULEX Kosovo were determined by a majority of EULEX judges.
Further, a member of the Board was an employee of the EEAS, the department that commenced the disciplinary proceedings against me; that Board member was subordinate to the person who commenced the disciplinary proceedings against me and subordinate to a person I had accused of serious misconduct. This was not an impartial tribunal and was never intended to be an impartial tribunal. The EEAS wanted a panel composition that could be manipulated to find against me.
Therefore, not only did the Board in my case not comprise a majority of judges in clear contravention of international law and practice, the Board was also not impartial. This was a fundamental breach of Article 6 of the ECHR — one of the core principles of justice the EU pretends to promote.
I submitted a complaint to the EU Ombudsman. My complaint centred around the panel composition and referred to the fact that (1) the composition of the disciplinary board was not in accordance with established law and (2) a member of the board was an employee of the department that commenced the disciplinary proceedings and (3) that member was subordinate to a person I had accused of serious misconduct.
My complaint was initially handled by a junior member of staff. I then discovered the case had been taken over by the Ombudsman herself. Having accepted that my complaint was admissible, the EU Ombudsman issued a decision that she would not investigate my complaint. Why? Well, the answer is quite simple. Had she investigated my complaint, the ONLY conclusion she could have reached was that the Board was incorrectly constituted and that there had been an obvious and serious breach of Article 6 of the ECHR.
This was the most obvious and egregious example of an EU institution protecting another institution of the EU — preferring political expediency over justice and rule of law.
None of the complaints of misconduct that I made against the EEAS and EULEX were the subject of an independent investigation. EULEX and the EEAS continue to assert that I failed to cooperate with independent investigators. That is a lie. The persons appointed by the EEAS to lead that investigation into my allegations of misconduct were the very persons I had accused of serious misconduct. They and the investigators were in possession of my private emails — including the former Judge of the European Court. Those emails had been unlawfully accessed from my private email account and revealed that I was a whistle blower. Therefore, the persons I accused of misconduct were leading the investigation into their own misconduct!
On numerous occasions I wrote to the High Representative, Federica Mogherini, the EU Ambassadors in Brussels and the UK FCO. I informed them the investigations against me were a charade, for the reasons to which I have referred, and that the investigation into my allegations of serious misconduct was not independent and transparent. The EU Ambassadors simply ignored me.
The High Representative and EU Ambassadors closed their eyes to the obvious abuses that were taking place in Kosovo, choosing political expediency over justice and rule of law.
It is correct that an Employment Tribunal in England dismissed my case against EULEX and the EEAS. The tribunal did not find that my allegations were untrue. The tribunal did not consider the substance of my allegations. The tribunal dismissed my case solely because it found it did not have jurisdiction to hear those allegations. That was the only reason. Indeed, counsel who appeared for EULEX and the EEAS before the tribunal never claimed my allegations were not without merit or that they deserved to be heard before a court. Their only objection was that the court should be in Brussels rather than in London. The assertions by EULEX that the tribunal dismissed my allegations was misleading — and was intended by EULEX to mislead.
I expect to be called to give evidence before the Kosovo Parliament. That evidence will expose corruption involving judges and senior staff of the EU. I am confident that my evidence will serve to improve the administration of justice and promote rule of law.