A crucial telephone recording in the Dalligate scandal might have been acquired illegally, according to a Belgian privacy watchdog.
In the conversation, businessman Silvio Zammit is allegedly heard asking tobacco lobbyist Inge Delfosse for €10 million to set up a meeting with his “boss” over the possibility of lifting an EU ban on snus, a form of smokeless tobacco.
If a Belgian court were to declare this recording illegal, it could jeopardise the case as the evidence could be declared inadmissible.
The Belgian privacy watchdog was asked for an opinion following a complaint filed by Mr Zammit, who questioned the legality of the recording made by Ms Delfosse on March 29, 2012.
Mr Zammit is facing criminal proceedings before a Maltese court on charges of bribery and trading in influence when John Dalli was EU Health Commissioner.
Mr Dalli was forced to resign by then European Commission president José Manuel Barroso in October 2012, following an investigation by the EU’s anti-fraud agency (OLAF).
During proceedings against Mr Zammit, the prosecution had presented a full transcript of this telephone conversation, which had been reproduced in a report released by OLAF. The corruption watchdog argued that Mr Zammit was referring to Mr Dalli when he had mentioned his “boss”.
Documents seen by The Sunday Times of Malta show that the Commission for the Protection of Privacy (Belgium) declared there could be a case for criminal proceedings under the Electronic Communications Act, since the call was allegedly recorded without Mr Zammit’s knowledge.
This would open the possibility for my client to request the court to withdraw this piece of evidence from the case
The authority said in this respect it could not take further action, as such matters would be within the jurisdiction of the Belgian police.
Contacted by this newspaper, Mr Zammit’s lawyers, Chris Busietta and Edward Gatt, said that no request had been yet filed with the Belgian police to investigate this possible breach. They pointed out that their client had only received feedback from the Belgian authority a few days earlier.
Asked about the implications if Ms Delfosse is found to have made an illegal recording, they said this could add a new twist to the case.
“That would mean the Maltese police would have presented evidence in court which had been acquired through illegal means. Consequently this would open the possibility for my client to request the court to withdraw this piece of evidence from the case,” the lawyers said.
In his complaint, Mr Zammit had also flagged a separate telephone conversation on July 3, 2012, once again by Ms Delfosse. Mr Zammit claimed this call had been set up in agreement with her bosses and OLAF, as part of a plan to “entrap” him, but had failed to achieve the desired result.
In view of this, Mr Zammit asked whether his privacy and fundamental rights had been breached and sought advice from the Belgian authority on what measures to take.
This development also came in the wake of an investigation by Belgian police over claims that OLAF illegally tapped the phones of suspects during its probe against Mr Dalli.
Last May, The Sunday Times of London had reported that Belgian investigators had even asked the European Commission to lift the diplomatic immunity of OLAF officials.
These details had emerged after OLAF was blamed by its supervisory committee for lacking accountability and transparency in the handling of its investigation.