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 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 a 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 a EU rule of law mission can breach a defendants rights that are central to the fair trial principles?
Judge Malcolm Simmons and the Constitutional Court of Kosovo
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 agreed to testify before the court. 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 that 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.
Other Legal Proceedings
Earlier this year Judge Simmons accepted damages from three newspapers that had posted false online stories. Further proceedings are currently proceeding before the English Courts.