The Constitutional Court in a landmark ruling finds in favor of Judge Malcolm Simmons and censures
In June 2018, in the case of Isni Thaci, Zeqir Demaku, Fadil Demaku, Nexhat Demaku and Jahir Demaku, the Constitutional Court of Kosovo found judges of the EU Rule of Law Mission in Kosovo (EULEX) in breach of Article 6 of the European Convention on Human Rights. Article 6 preserves the defendants right to a fair trial.
This is the first time that EU judges serving in an EU rule of law mission have been found to be in breach of a defendant’s right to a fair trial. How can it be that judges of EU Member States serving in an EU rule of law mission that is designed to promote rule of law and fair trial rights can breach a defendants right that are central to the most basic fair trial principles?
Judge Malcolm Simmons
Prior to the start of the trial Judge Malcolm Simmons raised concerns about the composition of the trial panel and the way it had been selected. Judge Simmons was told by his EU bosses that if he gave evidence about the way the panel had been composed that he might be subject to disciplinary action. He refused to be silenced.
The defendants in this case had requested that Judge Malcolm Simmons give evidence regarding the way the judges hearing the case had been selected. It was alleged the panel composition had been manipulated by one of the EU judges on the panel in conspiracy with senior managers of the EU rule of law mission. Judge Malcolm Simmons informed the court he was ready to assist the court if called upon to do so.
The EU Judges hearing the appeal refused to hear the evidence of Judge Malcolm Simmons despite the obvious and legitimate reasons for so doing. The defendants referred the case to the Constitutional Court. In June 2018 the Constitutional Court found the EU judges should have heard the evidence of Judge Malcolm Simmons and found the judges of the EU Rule of Law Mission in breach of Article 6 of the ECHR for their failure to do so.
Can there be any more damning indictment of EU rule of law than EU judges denying the defendants their right to a fair trial?
Judge Malcolm Simmons was an employee of the UK Foreign & Commonwealth Office and served as an international criminal judge from 2004 to 2017. From 2004 to 2008 he was an International Judge of the Court of Bosnia & Herzegovina in Sarajevo. From 2008 to 2017 he was an International Judge of the EU Rule of Law Mission in Kosovo. He presided in war crime and serious organised crime cases. He was a well-respected judge who had an unblemished career on the bench. From 2014 to 2017 he was President of EULEX Judges. Few other international judges serving in EULEX had experience presiding in serious organised crime cases. Even fewer had war crime experience. In 2016 Judge Simmons was interviewed by a panel of senior judges from The Hague and selected as a judge of the Kosovo Specialist Chambers.
Judge Simmons came under considerable political pressure not to reveal serious misconduct involving judges of the EU rule of law mission and criminal offences committed by EU staff. He became the subject of a media campaign to discredit him. Judge Simmons has since accepted significant damages for the false allegations that were made against him.