Feature 07 Nov 14

Scandal and Suspicion at the EU’s Kosovo Mission

Evidence of corruption inside the EU’s rule-of-law mission in Kosovo may not be compelling, but indications that EULEX initially ignored its own prosecutor’s suspicions are much stronger.

Nate Tabak, Jeta Xharra
BIRN
Pristina
EULEX prosecutor Maria Bamieh. Photo: Majlinda Hoxha.

It’s clear that being the centre of the worst scandal in EULEX’s six-year history has taken a toll on Maria Bamieh. Sitting on a couch at her home near Film City KFOR base in Pristina, the 55-year-old British prosecutor spoke haltingly, with the exhausted tone of a person who probably hasn’t had a good night’s sleep in weeks.

“I just want everybody to believe that I’m not a revengeful, horrible bitch,” Bamieh said, taking a drag of a cigarette.

Over the past two weeks, she has emerged as EULEX’s chief accuser in a corruption scandal that has captivated Kosovo and reverberated in the corridors of power in Brussels. According to the prosecutor, she’s simply a whistleblower who wasn’t taken seriously, and then fired for aggressively pushing the EU’s rule-of-law mission to properly investigate serious allegations of corruption in its own ranks.

On the other side, EULEX, albeit quietly, has cast Bamieh as a disgruntled employee who was ultimately angry about losing her job amid downsizing and decided to embarrass the mission by leaking sensitive documents to the newspaper Koha Ditore. (Bamieh denies this.)

Dozens of pages of internal EULEX documents, obtained by BIRN, paint a far murkier and more incomplete picture. The evidence of corruption is circumstantial - based on wiretaps and testimony whose credibility are suspect. But at the same time, it appears that an initial complaint by Bamieh did not lead to any official investigation. The mission only took action after its intelligence unit came forward with evidence, beginning an internal investigation in May 2013, about a year after Bamieh made a complaint, according to a confidential summary of the internal investigation.

By Bamieh’s account, she stumbled upon a conspiracy to scuttle her corruption case using bribery in 2012. Conversations recorded through court-authorised intercepts include intermediaries of defendant Ilir Tolaj, an official at the Ministry of Health, discussing contacts with the chief EULEX judge at the time, Francesco Florit. “I said, tell him if he takes over definitely and guarantees that the matter is done, he shall tell us, how can we and what we can do for him,” one man says in a conversation recorded on May 31, 2012.

Also troubling, according to Bamieh, was that Tolaj intermediaries were apparently getting information from the office of Jaroslava Novotna, the chief EULEX prosecutor, who seemed to be conspiring to get her taken off the case. Novotna did not respond to BIRN’s questions.

“I was shocked by what I was hearing in the intercepts,” Bamieh recalled. “I felt like I was in the middle of some John Grisham novel.”

Complaints ignored

The Tolaj corruption case was politically charged and complicated. It involved accusations that officials in the Ministry of Health had taken bribes to award health contracts. As Bamieh worked the case in the spring and summer of 2012, Kosovo police officers were monitoring the phones of Tolaj, who was in jail, and those of his associates.

The key players in the EULEX affair

Maria Bamieh - EULEX prosecutor Bamieh alleges that EULEX ignored her reports of corruption within the ranks of the mission. In addition, she says she faced retaliation. The mission has suspended her on suspicion of leaking sensitive documents to the press. She denies this.

Francesco Florit - Former chief EULEX judge Florit is accused of accepting a bribe to acquit a murder defendant, and soliciting a bribe in the Tolaj corruption case. Florit, currently a judge in Italy, calls the charges baseless.

Jaroslava Novotna - Chief EULEX prosecutor Bamieh has accused Novotna of being complicit in efforts to undermine the Tolaj case.

Ilir Tolaj - Former Permanent Secretary of the Ministry of Health Tolaj was convicted of tax fraud and abusing his official position in an extensive corruption case at Kosovo’s Ministry of Health. Bamieh prosecuted the case, and discovered wiretaps that suggest intermediaries of Tolaj tried to influence the case through Florit and EULEX’s chief prosecutor.

 

According to emails she showed BIRN, Bamieh began sending concerned messages in May upon learning of the intercepted conversations that suggested an effort to bribe Florit, and the complicity of Novotna.

Bamieh also notified Signe Justesen, then head of Kosovo’s Special Prosecution Office, and took the complaint to Silvio Bonfigli, who at the time was head of EULEX’s executive arm. According to Bamieh, Bonfigli assured her that her complaints would be investigated thoroughly.

Bamieh’s emails suggest that Bonfigli was preparing to refer her complaint to the internal investigations unit, but it appears that did not happen. Bonfigli, who has since left the mission and works as a prosecutor in his native Italy, did not respond to messages from BIRN.

Justesen, who left her post in January 2013, declined to discuss what happened during her tenure, but offered praise for Bamieh. “I can tell you however that I considered Maria a very honest and dedicated prosecutor who always did what she thought was best in finding the truth and combating crime,” Justesen wrote in an email.

Privately, EULEX officials have suggested that Bamieh may be exaggerating the extent of her complaints. They point to the way she wrote one section of the Tolaj indictment, which sounds dismissive of the evidence of any improper behaviour.

When she issued her indictment in the case on July 4, 2012, Bamieh wrote: “It is not suggested that Mr Florit or Mrs Novotna were involved in the attempts to obstruct justice. It is highly likely that the individuals involved were feeding Mr Tolaj inaccurate false information for their own interests.”

Bamieh, on the other hand, said she was trying to strike a balance between her obligation to disclose evidence in her criminal case and preserving any internal investigation at EULEX.

“Maybe I didn’t word it in the best way possible,” Bamieh said of the indictment. “But I was under time constraints, and Signe [Justesen] and I agreed that we would put those allegations into the indictment. We would disclose the intercept, but we would do it in a way that we do not influence the internal investigation that we believed was ongoing at that time.”

The judge who stands accused

The last two weeks haven’t treated Francesco Florit well, either. The former head EULEX judge, who now serves on the bench in Udine, Italy, had quietly faced an internal EULEX investigation going to back to 2013 into bribery allegations until Koha Ditore made them public, and Bamieh openly accused him in interviews.

The evidence

Wiretaps: They suggest that there was an apparent effort to scuttle the Tolaj case, in part, through bribes. The weakness is they only show third parties talking about doing it, and no indication the the bribery was successful.

Testimony: Family members of two of the three former police officers implicated in the 2007 bombing and triple murder have reported collecting money to bribe Florit - around 300,000 euro - to get them acquitted, but only one was. The officer was acquitted in both cases and his attorneys have denied bribing anyone. The families are demanding a retrial in the triple murder, which Florit argues is a good motive for making up the bribe story.

 

The Italian judge agreed to discuss the claims openly, even appearing head-to-head with Bamieh during a debate on Kosovo TV station Kohavision.

Florit, who vehemently denies ever taking a single bribe or asking for one, said EULEX is wasting its time.

“The Mission should treat it for what it is, i.e. a nonsense that does not deserve attention nor further waste of time and that should be archived,” he said.

Even if any further investigations clear his name, Florit contends that his career is effectively ruined. “Who would promote or recruit a judge who has been suspected of ‘selling decisions’?” he asked.

The most serious allegation against Florit is that he took around 300,000 euros in 2009 to secure the release of a murder defendant. This allegation, too, was uncovered by Bamieh in 2013 while she was investigating the 2007 bombing of a club on Bill Clinton Boulevard in Pristina, which left two people dead.

The case involved three defendants, all former members of a Kosovo police special unit. In 2009, Besnik Hasani and Shpend Qerimi were convicted, while Nusret Cena was acquitted in a trial where Florit served as the presiding judge on a three-member panel. The three men also were tried in a 2007 triple murder that took place near Kacanik, and in that case Cena, too, was the only person acquitted, although Florit was not involved in that trial.

Family members of Hasani and Qerimi have alleged a collective effort to raise money to secure the three men’s release, and that ultimately a bribe was paid to Florit in 2009 in Durres, Albania.

According to the family’s versions of events, the money raised was not deemed sufficient by Florit to release all of the defendants, so ultimately Cena was the only acquitted. Cena and his lawyers have vehemently denied this, as has Florit.

Flurim Asani, the brother of Besnik Hasani, told EULEX investigators in 2013 and BIRN this month that that he was in Durres for a meeting between Florit and an attorney to discuss the deal. Asani said he saw Florit from afar, but did not attend the meeting.

Florit, for his part, has denied ever being in Albania in 2009, and suggests that the story is an effort to secure a retrial - which the family is urging in the Kacanik murder case.

Bamieh acknowledged the possibility that the bribery story could have been concocted. But she said there is strong reason to have suspicions about Florit, especially considering the intercepts in the Tolaj case.

“I’ve never said he’s guilty. I’ve said that there’s something here that stinks. And it stinks big time,” Bamieh said.

As for the Tolaj case, Florit has pointed out that the intercepts in the Tolaj case simply establish that people were talking about him - and that he can’t be held responsible for their statements - and that the main defendant ultimately was found guilty.

Florit does admit that he met – five or six times – with one of Tolaj’s intermediaries, a professor. The judge, however, insists that the meetings were largely innocent. The professor had mostly benign things to discuss, such as an invitation to lecture at the University of Pristina, Florit said. But on his final visit, the professor brought up the Tolaj case, upon which Florit said he ejected the man and submitted a report to Bamieh the next day.

Florit sent a copy of the statement to BIRN, which is consistent with his version of events. But Bamieh contents that Florit drafted it only upon confronting the judge about the mentions of him on the wiretaps. Florit contends that he did it on his own initiative.

What EULEX did and didn’t do

According to an internal report obtained by BIRN, EULEX began taking the corruption allegations seriously in May 2013 after the mission’s intelligence unit encountered evidence that Florit and a prosecutor had been offered bribes. BIRN is not naming the prosecutor, whom it has been unable to contact directly for an opportunity to respond directly to the allegations.

EULEX's reaction to the allegations

Slow start: While Bamieh started making complaints about the Tolaj wiretaps in May 2012 and appears to have sent a memo to the head of the Executive Division, no immediate action was taken. EULEX only began an internal investigation in May 2013 after its intelligence unit came across evidence suggesting possible corruption involving Florit and a prosecutor.

Internal investigation: A EULEX internal investigation did not find any evidence of Florit or the prosecutor accepting any bribes, but also did not exclude the possibility. It noted that wiretaps did show an apparent effort to bribe them, but suggested this was likely itself a scheme to take money from clients - or an effort to mislead investigators themselves. It also noted that Bamieh’s initial complaint had disappeared from EULEX archives. it recommended the appointment of an independent prosecutor to investigate the claims thoroughly.

Independent investigation: Two prosecutors (one international and one local) are reportedly leading an independent investigation into the corruption allegations at EULEX. It’s unclear for how long this has been going on or the scope of it.

 

The reports by the intelligence unit triggered a formal internal investigation. That probe did conclude that there mostly likely had been an effort to bribe Florit and the prosecutor, but uncovered no evidence that these efforts were successful, suggesting that the suspect wiretaps could be explained by an effort of lawyers to defraud clients or a deliberate effort to mislead investigators.

Investigators also looked into Florit’s bank accounts and found no irregular transactions, but noted “this can be investigated better by a prosecutor in a criminal investigation”.

“There are currently no grounds for the suspicions of bribery of EULEX staff,” the investigators wrote.

Still, the internal investigation did not exclude the possibility that the bribery had occurred, and recommended that an independent prosecutor be appointed to investigation the allegations further - which EULEX says it has done.

The most damning part of the investigation, however, is related to how the mission handled Bamieh’s initial complaints, particularly a memo she sent to Silvio Bonfigli, the head of the executive division. “As of this date, the memo did not lead to any actions within the Mission,” investigators wrote, noting that Bamieh had also notified the then Deputy Head of Mission, Andy Sparks, and the Head of Mission, Xavier Marnhac, about her suspicions.

The memo had also mysteriously disappeared, which investigators found troubling: “The fact that an important document can disappear emphasizes the need for an open and transparent investigation. It is important that the Mission addresses this issue.”

The internal investigation did not conclude there had been a cover up, as Bahmieh has alleged, but does lend credibility to the claim. “The fact is, people did not want to believe this. I did not want to believe it. I knew that people, even in the face of the intercepts, would say, ‘Ho ho ho, this is too far-fetched.’

Asked about the initial response to Bamieh’s complaints, EULEX suggested that the process simply took time. “Investigations are not always linear. It is a complex case where various different elements had to be brought together before an investigation could be formally opened,” said EULEX spokesperson Dragana Nikolic-Solomon.

Prosecutor ‘didn’t plan to shame EULEX’

EU foreign policy chief Federica Mogherini this week announced an independent probe.

When EULEX suspended Bamieh on October 23, the prosecutor was already on her way out – and not happy about it. Bamieh wasn’t offered a position in the newly-downsized EU rule of law mission, and her appeal – on the grounds of being unfairly evaluated during the rehiring process – was rejected.

Bamieh said that Novotna, about whom she raised suspicions about in the Tolaj case, was part of the evaluation process and rated her poorly. Evidence for this is hardly compelling: an evaluation sheet that shows Bamieh ranked 21 out 26 on a list of prosecutors but shows no indication of who was doing the evaluating.

EULEX has not said if Novotna was part of the evaluation process, but noted that the selection process was competitive, with 17 candidates for four positions.

Bamieh, for her part, sees EULEX’s ultimate decision not to rehire her and her recent suspension as the coda in a pattern of retaliation she alleges occurred after she began making accusations in 2012.

The decision to speak out, Bamieh said, led to isolation at the Kosovo Special Prosecution Office, and petty investigations into issues like illegal parking and having an intern. She has also made allegations that she was treated as she was, in part, because she is a woman and from an ethnic minority.

Bamieh insisted that despite her grievances, she planned to go quietly, though her complaints would eventually have come out in a lawsuit.

“It was never my plan to publicly embarrass EULEX,” Bamieh said. “I only did this because I was suspended.

“I’m 55 years old, I don’t need to work. I could just go and happily retire to my garden and stay with my family. But I’m not going to let it happen unjustly.”

Additional reporting by Valerie Hopkins.

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