OLAF chief did not give Zammit 24 hours’ notice for interrogation

OLAF director Giovanni Kessler may have breached a 24-hour obligation to forewarn Silvio Zammit - charged in a Maltese court of soliciting a €60 million bribe from a Swedish tobacco manufacturer - that he would be interviewed by the EU's anti-fraud agency.

In court last week during the compilation of evidence against Zammit, witness Mario Debono from the Internal Audit and Investigation Department (IAID) said he gave Zammit a handwritten note on 4 July summoning him for an interview the next day at the IAID offices with Kessler.

Debono however told the court that the handwritten note was backdated to 3 July.

According to the EU regulation on OLAF investigations (883/2013), Article 9(2) states that an invitation to an interview has to be sent to a person concerned with at least 10 working days' notice.

"That notice period may be shortened with the express consent of the person concerned or on duly reasoned grounds of urgency of the investigation. In the latter case, the notice period shall not be less than 24 hours."

The invitation must include a list of the rights of the person concerned, in particular the right to be assisted by a person of his choice - which Zammit did not have.

Kessler has already come under criticism for the way he extended the 'Dalligate' investigation into the alleged €60 million bribe, from an internal OLAF investigation dealing with the EU institutions, to an external investigation on EU funds so that he could fly to Malta and interrogate Silvio Zammit.

OLAF rules do not allow officials to conduct interviews outside the EU institutions.

But Kessler created a contrived investigation on EU funds so that he could interview Zammit - then a deputy mayor for Sliema - and asked OLAF's internal review unit (ISRU) to extend the "internal" investigation into an "external" one.

When it first received the Swedish Match complaint, ISRU said the allegation that Zammit had solicited a €60 million bribe to influence John Dalli in lifting the retail ban on snus, had a possible impact on the EU institutions, but no potential impact on the EU's financial impact: which meant that the ensuing investigation was an "internal investigation".

Kessler could only interrogate Zammit in Malta if his investigation was extended into an "external" one by the ISRU, that is, an investigation taking place outside the EU institutions and requiring on-the-spot inspections in a member state.

ISRU's opinion however was that the need to extend the investigation "appears doubtful" and that there was "very limited evidence in the case so far" of what financial interests could be affected to justify the spot-check at Silvio Zammit's business premises in Sliema.

Despite the flimsy grounds, ISRU still proceeded to grant the extension, giving Kessler the go-ahead to rope in the OPM's Internal Audit and Investigations Department, which houses OLAF's liaising partner, the anti-fraud coordination service (Afcos).

This was particularly important, since the ISIP rules require that Afcos is brought in to coordinate the case with OLAF, which then "facilitates" the taking of statements.

Since Afcos's remit at law is only to conduct financial investigations on EU funds, Kessler now could venture to Malta on the grounds that he was to investigate some misappropriation of EU funds by Silvio Zammit, who happened to be the deputy mayor of Sliema.

So when Kessler and IAID head Rita Schembri first visited Zammit at his pizzeria Peppi's Kiosk in Sliema on 4 July 2012, the spot-check was made on the "external aspects" of the case. But the interview of Zammit on 5 July was on the facts relating to the internal investigation.

OLAF's own supervisory committee later examined the case, and said that only two questions out of the 41 in the Zammit interrogation dealt with EU funds.