La sede della misisone Eulex in Kosovo

The recent allegations on EULEX seem too selective to be of much assistance for an analysis of the European mission’s performance. The whole mission, starting from its judicial functions, should be thoroughly scrutinized

07/11/2014 -  Andrea Lorenzo Capussela

The grave allegations that a former Eulex prosecutor, Ms Maria Bamieh, recently launched against some of her colleagues and superiors have filled the pages of Kosovo’s newspapers, have been discussed in the European Parliament, and have led the EU to order an independent investigation. I shall try to argue that such revelations are too selective to be of much assistance for an analysis of Eulex’s performance, and that what is now called for is a deep and extensive audit of Eulex’s performance of its judicial functions.

Consider this case. A and B arrange a transaction together with H and K; C approves it; and A-B instruct X, Y and Z to take the necessary actions to implement it. The transaction is arguably illegal, however, and a prosecutor opens a preliminary investigation. Documentary evidence exists, which describes the agreement between A-B and H-K, C’s consent to it, the instructions delivered to X-Y-Z, and the actions they took to implement the transaction. So the prosecutor decides to open a formal investigation. Whom would you expect to be targeted by it? And, assuming that the transaction was indeed illegal, who, in your view, committed the gravest offences?

Keep your answers in mind and consider also the following. The transaction concerns the transfer to a foreign-owned private university – the American University in Kosovo (AUK) – of a large tract of state-owned land near Kosovo’s capital, which was in the portfolio of the privatisation agency of that country. At the time the deal was designed and began to be implemented, in 2010–11, A and B were Kosovo’s ministers of education and finance: the former is now the foreign minister, and the latter is the ambassador to Japan. C was and still is Kosovo’s prime minister. H and K were AUK’s president and the deputy president: the former is a foreign citizen, who has now left that country, whereas the latter is a Kosovar. And X, Y and Z are some (six) directors and officers of the privatisation agency and the external consultant it hired to assess the value of the land. Finally, A-B and H-K acted in concert with D, who has died in 2012: D was the chairman and the de facto undisputed ‘boss’ of the privatisation agency, and the informal economic adviser to C, the prime minister. X-Y-Z acted under D’s instructions.

The prosecutor in charge of this case was the author of those revelations, Ms Bamieh. And her deliberate choice was to target the investigation only on X, Y and Z. I know this because she told me.

In 2008–11 I was a member of the board of directors of the privatisation agency, and in September 2010 I received a set of (official) documents describing the transaction, its terms, its origin, and the persons involved. Immediately after the board approved it – against my objections – I delivered such documents to Eulex, together with a report outlining the reasons why, in my opinion, the transaction seemed illegal and likely to cause significant damage to Kosovo’s budget (€18 million, potentially: not a small sum for Kosovo, as it is equivalent to 0.4 per cent of the 2010 GDP, or to about 5,000 times the average yearly salary; and, besides the budget, the losers of that deal were precisely the workers of the privatised company that previously owned that piece of land).

A fortnight later a letter by Eulex’s chief serious-crimes prosecutor informed me that the mission would not investigate the case, without explaining why. Shortly after I had left Kosovo, in June 2011, I criticised the AUK deal and Eulex’s inaction on it in articles for Koha Ditore and the international media (paywall), and I re-delivered the documents to Eulex, whose chief serious-crimes prosecutor had changed.

I received no reply from the mission until, on 29 March 2014, Ms Bamieh – with whom I had never had any contact before – sent me an email with this request:

I have taken over some cases which were with different prosecutors in [Eulex’s serious-crimes prosecution office].  I would like to talk to you and if necessary take a formal statement from you. I am looking into [the names of five cases follow]. I need to find evidence ASAP as time is running out.

Three of such cases concern privatisation deals about which I have ample information, but in respect of which I never had serious reasons to suspect wrongdoing. One of them apparently is a case – involving Azem Syla and the purchase of another tract of state-owned land – in respect of which she now alleges that her investigation was obstructed by her superiors. The other two of such five cases were the subject of reports I had sent to Eulex, to stimulate an investigation. One of them is the AUK case.

An exchange of emails and phone calls followed. Ms Bamieh wrote to me that ‘all I had [about the AUK case] was what you sent to [Eulex]’. So I confirmed to her my reading of the documents and of the transaction, and elaborated on its financial side. She then asked for my comments on the draft of the ruling – an eight-page document, summarising the evidence and the charges – by which she intended to open a formal investigation.

Whether or not the AUK deal is illegal, by consequence, it is established that Ms Bamieh believed – at that stage, at least – that designing and implementing it entailed the commission of certain crimes, and that she had reached this conclusion solely on the basis of the documents that I had provided to the mission.

When I expressed to Ms Bamieh my reservations about her choice not to investigate those who had arranged the transaction and benefited from it, she replied that she ‘needed evidence’ against them. The documents she had, conversely, indicated with precision the names, decisions and actions of each of those more prominent suspects; and the sequence of events strongly suggested that they too – and not just X-Y-Z – were aware that the transaction was illegal (radically, in my view). The evidence she had against A-B-D-H-K, in other words, was no weaker than that she had against X-Y-Z: it was exactly the same evidence. This is what I wrote to her, on 9 April, in an email that remains unanswered: my criticism of her selective approach to the investigation brought our exchanges to an abrupt end.

Naturally, Ms Bamieh was perfectly entitled to ignore that criticism. But she arguably had a duty, at least, to ask me for information and documents about the other four cases she was dealing with: information and documents which I had written to her that I had, and which she – in her own words – needed ‘ASAP’ because ‘time [was] running out’.

So two sets of questions can be posed. To Eulex: 1) why was a preliminary investigation on those five cases opened only several years after the facts? 2) why were my reports on two of such cases ignored in 2010–11 and resurrected in 2014?

To Ms Bamieh: 1) why did she think that ‘time [was] running out’? 2) why did she choose not to prosecute the main figures involved in the AUK case: was it her choice, or was she acting upon the advice or instructions of her superiors? 3) why did she not seek the information and documents I told her I had on the other cases? 4) what was more detrimental to her investigations: the absence of the information and documents that I had offered to her and she declined to receive, or her superiors’ (alleged) obstruction?

Eulex is probably entitled not to answer to those two questions, as I presume that the formal investigations have been opened and are still pending. But Ms Bamieh is no longer with the mission and has chosen to speak out: so I would argue that she has a moral obligation to answer to those four questions.

In particular, Ms Bamieh has claimed that her immediate supervisor, Mr Jonathan Ratel, obstructed her investigation on the land case involving Mr Syla: was it him who forced her not to ask me for the information I had about it? Likewise, in an interview with Koha Ditore she also argues that at the time she was suspended – that is, a dozen days ago – she was still working on the AUK case: what did she do between 9 April, when she drafted the ruling opening that investigation, and then? Who was she targeting in that investigation: X-Y-Z, or also the most prominent suspects? Without plausible answers to these and the other questions I formulated above a shadow would remain over Ms Bamieh’s motives and, by implication, also over the fairness and plausibility of her allegations.

Eulex’s dearth of results is due – I argue in a forthcoming book, and in a related paper on Eulex’s performance (both discussed in a comment by The Guardian today) – to negligence, incompetence and a general inclination not to disturb Kosovo’s politico-economic élite, which often coincides with the criminal élite of the country. Such problems, in turn, are rooted in weak internal accountability and external oversight, and in the insufficient protection for the independence of the mission’s judges and prosecutors.

As judicial corruption is typically correlated with such phenomena, in the abstract Ms Bamieh’s allegations are plausible. Yet the case she principally focuses on – the €300,000 bribe allegedly paid to a former Eulex judge, Mr Francesco Florit – does not seem convincing, primarily because two of those in whose interest the bribe had allegedly been paid received a 25-year murder sentence from the panel that judge Florit presided (I must disclose that I am acquainted with this judge: see the first postscript).

It is also plausible that, as Ms Bamieh claims, Eulex’s senior officials did seek to downplay her reports about that case, which was undoubtedly inconvenient to them. But if, as it seems possible, her report was not very credible, they might have been wise to exercise some caution in handling it: and unless she provides plausible answers to those questions, it would seem imprudent to take her claim that her superiors ignored her report at face value.

It is very plausible that, as she also claims, Eulex’s management did seek to obstruct or slow down investigations that targeted senior members of Kosovo’s élite, and thus risked perturbing political stability: including her own investigations (and she is indeed to be commended for having opened them after Eulex had ignored them for so long). But the cases she points to – the AUK case and the land case concerning Mr Syla – seem rather to suggest self-censorship on the part of the prosecutor (herself), who declined to collect potentially crucial information that was at her disposal. Paradoxically, in fact, Ms Bamieh’s behaviour in the case she did not talk about, the AUK case, is a very good illustration of the problems she denounces. Exactly as several colleagues and superiors of hers had done in other cases – those described at paragraphs 2.1, 2.2, 2.4–2.6, 2.9, 2.10 and 2.15–2.17 of my paper on Eulex ; the AUK case is discussed in paragraph 2.3 – in that case she deliberately chose (in March-April, at least) not to investigate the more prominent figures involved, despite presence of reliable elements against them. This, for example, is precisely what Mr Ratel had done in one segment of the infamous organ-trafficking case (discussed here , and in paragraph 2.16 of that paper).

In sum, whatever the merits of Ms Bamieh’s allegations, they seem too selective to be of much assistance for an analysis of Eulex’s performance. She was in the mission for six years; she dealt with corruption and financial crime, which typically involve high-profile figures; and she now claims, reportedly , that the mission ‘cooperat[es] with mafia and politicians in Kosovo’: if so, are the few alleged episodes of corruption and obstruction she has revealed the only ones worth disclosing? Her revelations are also likely to engender confusion, because they distract attention from Eulex’s known choices and overall record, which are in the public domain and form a sufficient basis for articulating both a critique of its unsatisfactory performance and an interpretation of its principal causes.

For this reason, investigating the cases that Ms Bamieh has denounced seems an insufficient response. In 2012 the European Court of Auditors reviewed Eulex’s performance of its advisory functions, and published a credible and rather critical report . The judicial functions were excluded by its remit, however. This sector should now be carefully audited, for it is there where Eulex’s worst failures were observed and where its weaknesses manifested themselves most clearly and most damagingly.

Post scriptum. I am acquainted with the Italian judge whom Ms Bamieh accuses, Mr Florit. I have no personal reason to defend him, however, because he (privately) characterised my (public) criticism of another Italian judge who served in Eulex, Mr Gianfranco Gallo, as irresponsible defamation (judge Gallo brought a criminal complaint against me before the Milan prosecution office, which judged that my – admittedly harsh – criticism was legitimate and dismissed the complaint). This allows me to say that, for what I know of him, I would be surprised if judge Florit accepted a bribe (if anything because he seems to lack the sense of humour to pocket the bribe and then send the defendants to jail, for 25 years).

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