The Maria Bamieh revelations on corruption inside the European rule of law mission in Kosovo, although not promptly investigated, appear to lack any real basis. Clearing the mission on a circumscribed scandal, however, will likely reduce the urgency for a much needed audition of its record overall

10/11/2014 -  Andrea Capussela

It is said that when you point to the moon, the average PDK propagandist looks at your finger. Maria Bamieh’s revelations are fingers, pointing to a thing that is as large, round, clear and visible as the full moon in a limpid summer night. They point to Eulex’s six-year failure. So why are so many people – members of the European Parliament, commentators, Kosovar tweeters – looking at the finger instead?

That is the question I shall try to answer. But first a few words on Bamieh’s revelations. And, before I begin, a warning: I assume that the reader knows a bit about Kosovo, and quite a lot about this recent scandal. If you don’t, this excellent BIRN article will be enough: if you don’t wish to read it, read no further.

I have no reason to doubt the truthfulness of what Bamieh says. Her revelations seem selective, as I said, but we can assume that she tells the truth (with one possible minor exception). The question is the significance of the episodes she has revealed: not just because they are all fingers, and not the moon, but also because the main finger seems to be pointing elsewhere. This finger, of course, is the €300,000 bribe allegedly paid to former Eulex judge Francesco Florit by, or on behalf of, defendants in a murder case before him (the murder cases were two, in fact, and involved the same three suspects; my acquaintance and disagreements with this Italian jurist are disclosed here).

Note, at the outset, that Bamieh does not say that she has direct information of the payment of that bribe, nor does she say that Florit is guilty: she only says that she has formal reports by the bribe givers, who say that the bribe has been paid, and telephone intercepts – obtained in another case – that would appear to corroborate that story, albeit indirectly. So the real issue is Eulex’s apparent reluctance to investigate this matter appropriately, following a report that Bamieh made to her superiors in Eulex about this bribe: the scandal, for now, is the cover-up. This is precisely the line followed by that BIRN article: the evidence of corruption ‘may not be compelling – they write – but indications that EULEX initially ignored its own prosecutor’s suspicions are much stronger.’ And this seems to be quite true.

But now imagine, for the sake of argument, that the reports and intercepts said that Florit had ordered the assassination of Franz Ferdinand of Hapsburg. Had Bamieh made a report about this allegation, would Eulex have had an obligation to investigate it carefully? Or would it have been more advisable to reconsider her fitness for the prosecutorial function?

My point is that there is a point – somewhere in the continuum between direct, incontrovertible evidence, at one extreme, and totally implausible allegations, at the other extreme – below which opening an investigation makes is both a waste of time and an unnecessary damage to the suspects’ reputation. The question is whether the allegations that Ms Bamieh had received are to be placed above or below that point. Bamieh, BIRN, other commentators, some Kosovar tweeters and some members of the European Parliament seem certain that they stand above that point. I am less certain.

The BIRN article, which is clear and comprehensive, outlines the known evidence and very fairly points to its weaknesses. But once you put all the weaknesses together you are left with something that is hardly more concrete than the ghost of the archduke.

First, the bribe is €300,000: not a sum that can change the life of a Western European professional, frankly, and equivalent, at most, to four times the after-tax yearly salary of an Italian judge serving in Eulex. The bribe was to be paid in 30 monthly tranches of €10,000 each, moreover. But what guarantee did the judge have that the defendants would have paid the remaining tranches, after having been acquitted? And what would the judge do if they didn’t pay: sue them? Hire a SHIK hit man?

So, to believe this story you must be ready to believe that a middle-aged judge, approaching the peak of his carrier and salary, would risk all that and his own reputation in exchange of the following: 1) the certainty of receiving the few tranches before the promised acquittal, say €30,000 overall (a handful of net monthly salaries of the judge); and 2) the uncertain hope of receiving the rest over the next two years. Would a normally rational person – a judge – do that? Hardly. Unless, of course, you think that the judge was not virgin of corruption: if that was just one of the many bribes he had received, then the story makes sense (except the monthly schedule of payments); but nobody, not even the intercepted people, suggests that.

Second, two of the tree bribe givers were sentenced to 25 years by the panel that judge Florit presided. So you have to believe also that, having taken the risk described above, the judge increased it exponentially by convicting two of the three bribe givers (which is worse than convicting all of them, incidentally, for I suppose that even in the world of bribery there is an elementary sense of fairness: “Why him and not us? This judge shall pay dearly for that”, was the most likely reaction of the two disgruntled bribe givers).

True, court panels decide by majority, and judge Florit’s vote did not count more than the votes of the two other members of the panel (another Eulex judge and a Kosovar judge). So one might reject my objection by saying that Florit might simply have been outvoted on the two convictions. But this opens another logical inconsistency: if the bribe givers could find €300,000 for Florit (and did not want to spend a similar sum on the other Eulex judge), why did they not pay a bribe (€20,000 would presumably have been enough) to the Kosovar judge too, so as to secure their main investment? If they paid this bribe why are they not saying it, to corroborate their allegations against Florit? And if they tried to bribe the Kosovar judge but he refused to take their money, why didn’t he – an upright and courageous person, in this scenario, for unlike Florit he refused the bribe – denounce that, either then or now? And if they failed to bribe the Kosovar judge, why did they bribe judge Florit at all, if he could not guarantee the desired outcome? The only way out of all these questions is to assume that Florit de facto controlled the decision of the panel. If so, however, we are back full circle: why did he convict two of the three bribe givers, and make the scandal that is now enveloping him inevitable? Whichever way you look at it, the story simply makes no sense.

Third, the bribe givers who now accuse the judge of corruption have a clear interest to do so, for if the judge is found to have taken a bribe their 25-year conviction falls (because the judge was unfit to hear the case, as he had been bribed): and all they risk is a shorter – three to five years, presumably – sentence for corruption. What would you choose between the two: would you prefer to spend five years in jail, or five times five?

Fourth, the whole story has a rather plausible alternative explanation: 1) the persons intercepted were lying to the defendants about the bribe to the judge, either to extract money from them or to let them believe that they are powerful, influential and well connected; 2) the judgement – the two convictions and one acquittal – simply reflects the fact that the evidence against one defendant was too weak. This is an imaginary explanation, of course, but it would seem the most natural one; and Ockham’s razor advises against embracing another, more complex explanation – “a bribe was paid; in tranches, true; to one judge only, true; only two convictions follow, true; there is a conflict of interest, true; yet it all makes sense because [many words follow] – unless there are good reasons to discard the obvious one. Yet I know of no such reasons. And few people seem to have either asked themselves why we should discard the obvious explanation, or confronted the inconsistencies I outlined above.

The credibility of this story seems very low, therefore: well below, I would argue, the level where any reasonable person would place the ‘sufficient-credibility’ point in the continuum I mentioned above. It is not totally devoid of credibility – because there were the criminal reports of the bribe givers and the telephone intercepts (and Bamieh was probably right in reporting them, therefore, as Eulex might have had other elements against Florit) – but it lacks enough credibility to be taken seriously.

So it is hard to criticise Eulex’s reluctance, or even refusal, to give much weight to Bamieh’s report about the €300,000 bribe. And the reading offered by the BIRN article and many others – “the bribe is not demonstrated, but this is a cover-up!” – falls: Eulex’s was not a cover-up, presumably, but the defensible shelving of an illogical, incoherent and unsubstantiated set of allegations – those reported by Bamieh – that came from people who were tainted by a colossal conflict of interest and have less intrinsic credibility than the average man on the street (because they are convicted assassins, and are also one of the two: either bribe-givers, or fabricators of articulate lies).

This is a pity, because I presume that Eulex is not above covering up scandals, and has probably covered-up quite a few (Bllaca and the central bank, at the very least). And because the independent investigation on this €300,000 bribe is likely to clear Eulex, and reduce the urgency of carefully auditing it, which is a greater pity.

Note, finally, that I am not saying that the reading I criticise is certainly wrong: only that, based on what has emerged, it is far less plausible than the obvious alternative. So this story is neither the moon nor a finger pointing to it: it is a finger pointing in the wrong direction.

Why did so many people look in that direction? First, because it was reported by very authoritative sources: Koha Ditore, first, and then BIRN and the Jeta ne Kosove television programme, all of which are perhaps Kosovo’s most competent, independent and courageous voices. This explanation applies mostly to the general public, which relies on the credible media for both information and analysis, and to those tweeters who lack the time to reflect on what they tweet about. Second, because the story is a very unsettling one, and once the scandal erupted prominent figures felt compelled to react indignantly, lest they may be seen as condoning judicial corruption: this applies mostly to members of the European Parliament, diplomats and similar public figures. Third, because it is convenient to deflect everybody’s attention to a circumscribed scandal, lacking any real basis, and leave the moon well out of sight.

This third explanation applies mostly to Eulex, those Western diplomacies that had most influence over it, and those who supervised the mission from Brussels over the past six years. But it applies also to Kosovo’s élite, for two reasons. First, no matter how weak it may now seem, Eulex is still a potential threat to them: Kosovo’s élite prefers to see the mission investigating corruption within its ranks, rather than within those of Kosovo’s government. Second, the moon has two faces: if Eulex “did nothing” – let’s put it this way, for ease of illustration – it must follow that organised crime and political corruption remain as “widespread” in Kosovo as they were when their level was found to be so intolerably high as to justify the deployment of such a large and expensive mission as Eulex. The second face of the moon, in other words, is that place where everyone can see the political and economic institutions of the new state as they really are, shorn of their superficial embellishments: the élite doesn’t like them to be seen naked.

I presume that this second face of the moon is one that also a few other people do not wish to see, or to be visible. This group includes a segment of Kosovo’s public opinion, which still fears for the independence of their state; a few Kosovar tweeters, infected by a patriotism - or interest-induced form of intellectual blindness; and those Western governments, politicians, diplomats and commentators who have heavily invested on Kosovo. This wide group of people does not wish to be told that the political élite and cabinet members they routinely vote for, deal with or even praise – for their support of multi-ethnicity and good neighbourly relations for instance – include rather more criminals than it is officially acknowledged or desirable to admit. This is fine, of course, especially as the Kosovar members of this group still form the majority of the active electorate. Yet I suppose that Kosovo shall not mature into an open democracy until this group of people is willing to look straight into the second face of the moon.

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