Dalligate now turns into full-blown conspiracy

Report originally published 24th March in MaltaToday on Sunday - digital version contains right of reply from Malta Police.

Whose smoke got in the eyes of European Commission president Jose Manuel Barroso when he demanded John Dalli's swift resignation in the afternoon of 16 October, 2012, on the basis of a covering letter to OLAF's investigation report - a 100-page dossier compiled in Malta and Brussels by, amongst others, its own chief Giovanni Kessler?

Some serious questions have returned to haunt the Commission as the Dalligate affair assumes a new dimension: the "unambiguous circumstantial evidence" which placed a Swedish Match lobbyist - Maltese lawyer Gayle Kimberley, employed on a €5,000 fee - in the same room as John Dalli and his self-styled middleman Silvio Zammit when a ridiculous €60 million bribe was suggested, has turned out to be a lie.

This was the candid affirmation of Johan Gabrielsson, the Swedish Match public affairs director who knew Kimberley at the time they were respectively employed at the Commission and the European Council's legal services in Brussels.

According to Gabrielsson, it was OLAF who confirmed that Kimberley had lied to him about a previous encounter between Dalli and Kimberley in Malta in January 2012, in the course of which Kimberley presented the commissioner with three pages on the non-harmfulness of snus. However, although he acknowledges that the first meeting took place, Dalli has consistently denied that there was a second one on 10 February.

In other words, the most important piece of evidence against Dalli - that he was present at a meeting where Zammit asked for the bribe after Dalli 'exited' from the room they had just met - was based on two lies. One put forward by Kimberley, and another affirmed by OLAF, as described by Green MEP José Bové.

"It was only during the long investigations with OLAF that [it turned out] that Gayle was not in the second meeting... [OLAF] had clearly already revealed this in investigations," Gabrielsson told Bové, in an recorded conversation to which both parties consented to.

Gabrielsson said he was asked by OLAF to conceal his knowledge that the meeting never took place when he appeared before the European Parliament on 9 January. "We had been told by OLAF that an investigation was going on in Malta, so keep to your version. Say what you have told us, what your version is, because there is a Maltese criminal investigation that should not be disturbed. And this was what the Maltese police said as well.

"They said: 'please be careful how you actually deal with this information. Try not to disturb the information'. The story I knew was already made official, which is why I took the decision to say the story the way I heard it."

Kimberley and Kessler

But why the need to be silent? Was this the strongest piece of circumstantial evidence that Dalli was being accused of - is this what OLAF and the Maltese police wanted to hide?

To people like Silvio Zammit's defence counsel Edward Gatt, one of the only persons to have read the OLAF investigation report, the reason is probably because it is a procedurally flawed investigation; and because Kimberley's alleged "lie" risked endangering whatever circumstantial evidence OLAF had in its hands.

"The OLAF report actually recommends that Kimberley be prosecuted," Gatt claimed - something that MaltaToday has been unable to ascertain. "But the Maltese police declared last week that they were not intending to, unless they find new evidence."

The Swedish Match complaint submitted to European Commission secretary-general Catherine Day on 21 May was forwarded to OLAF on 24 May, which carried out its assessment of the allegations within the next 48 hours. Chief Giovanni Kessler personally entered the fray, flying to Portugal on 14 June, 2012 where Kimberley was attending a gaming conference with another LGA official, Iosif Galea - ironically the man who presented Kimberley to Zammit as the man who could gain access to John Dalli.

After that initial seven-hour interrogation, throughout that summer Kessler kept in contact with Kimberley.

Because according to the testimony of Assistant Commissioner Michael Cassar, who is leading the prosecution of Zammit on charges of trading in influence, Iosif Galea himself had access to Kimberley's email. It was Galea who discovered that Kimberley was corresponding directly with Kessler, having forwarded him a 'dossier' relating to Zammit's activities and his connections to Dalli.

All these facts revealed in court now ring the alarm bells of such key players as the men and women of the OLAF supervisory committee, amongst them Herbert Bosch - a former MEP - who said the anti-fraud agency engaged in "illegal" wire tapping and taping of telephone conversations.

This was denied by OLAF last week. But German MEP Inge Graessle, who has called for Kessler's resignation, has a finer view of what OLAF was doing: "instigating third parties to produce records of telephone conversations".

Political timing?

With Kessler's investigation now becoming the subject of more speculation, the few people who have actually read the OLAF report are floating new lines of enquiry. Edward Gatt, the defence counsel for Silvio Zammit, claims the OLAF report was compiled with a view to bring down Dalli and was also "subject to influence by the Maltese authorities" - perhaps, by the Maltese politicians.

"We will be raising serious questions regarding the timing of all this," Gatt said. "My client was arrested while [today EU Commissioner for health and consumer affairs] Tonio Borg was in Brussels facing his grilling by MEPs to replace Dalli, and my client was charged the day after Lawrence Gonzi's government lost a vote of confidence in parliament."

The implication is a serious one. Did the former Maltese prime minister know of the OLAF investigation? Was Dalli's resignation 'impending' and fortuitous enough for Borg to move out to Brussels and pave way for a new PN deputy leader, as elections were edging closer? Was this matter already discussed throughout the summer of 2012 with people like Barroso?

MEPs in Brussels have suggested that OLAF, or the Commission's secretariat-general were in contact with the Maltese government before Dalli was told to resign by Barroso: in a 154-question dossier to the EC and OLAF, it was revealed that OLAF conducted a 48-hour assessment of the allegations forwarded to them by Catherine Day on 24 May (the original complaint by Swedish Match was submitted on 21 May); that Day enquired with Kessler whether the investigation would carry on throughout the summer; that Rita Schembri, the permanent secretary in the Office of the Prime Minister who headed the internal audit and investigations department, was informed by OLAF about the investigation before carrying out investigations in the summer; that Kessler told Day between the 5-6 October that the investigation would be closed by 15 October.

That same day - when Day received the report from OLAF - the anti-fraud agency called the Maltese government at 10:01am, and again on 21 October at 7:52pm. Another call was from Barroso himself on 16 October to Gonzi, to inform him of Dalli's resignation that afternoon. The two leaders had already met back in Malta during the 5+5 summit.

MEPs also asked Kessler on what legal basis had itemised bills for private phone calls by Dalli and other persons concerned in the investigation, had been obtained. Kessler refused to answer, citing confidentiality rules.

Such unanswered questions and more are what lead Edward Gatt to claim that OLAF's investigation is flawed and that Dalli's forced resignation and Zammit's arrest in December were "intentionally timed".

On Sunday, 24th March the Malta Police submitted this right of reply:

Reference is made to articles published today in both Malta Today and its sister paper Illum regarding the investigations concerning former EU Commissioner Mr John Dalli, particularly where it is stated that Malta Police officials informed Swedish Match officials not to say the truth about Gayle Kimerbley.
 
The Commissioner of Police, as lead investigator, and the other members of the investigation team, vehemently deny all allegations contained in these articles.  It is to be made amply clear that no police officer involved in these investigations did inform anyone, including Swedish Match officials, not to say the truth about Gayle Kimberley or about any other person involved in this case. 

These are all blatant lies.

The Malta Police also categorically denies that it had any pressure exerted by, or any influence directed from, the Office of the Prime Minister or from any other person, as to how it should proceed and conduct the investigations concerning Mr John Dalli.

WPC 280 Louise Camilleri

f/ Commissioner of Police