EXCLUSIVE | OLAF had ‘no legal basis’ for Dalli phone records

The EU's anti-fraud agency OLAF is expected to come in for a serious rebuke tomorrow, when MEPs will hold the agency up to the light of an annual report by OLAF's supervisory committee - a five-man board that inspects its work - which has raised doubts about the way the investigation on John Dalli was carried out.

OLAF carried out a four-month investigation in the summer of 2012 that led to the resignation of former EU health commissioner John Dalli, alleging that he was aware of an attempt to solicit a €60 million bribe from Swedish Match to reverse an EU trading ban on the sale of snus tobacco.

But the Supervisory Committee says OLAF's requests for Maltese telephone records and its instigation of third parties to record private conversations, might have been illegal.

Extracts of the supervisors' opinion into the Dalligate investigation - seen by MaltaToday - specifically point out that OLAF's request for Maltese telephone records was not covered by any legal basis.

The opinion is under lock and key in the European institutions.

OLAF obtained toll records for calls that took place between John Dalli, Silvio Zammit - who is charged in court with bribery - and witness Gayle Kimberley in the first months of 2012.

But in its examination of this request and the records of incoming and outgoing telephone calls, the Supervisory Committee said OLAF's investigation selection and review unit (ISRU) did not carry out "an internal verification of the legal grounds, and on OLAF's powers for sending such requests" prior to making its request.

OLAF is empowered, by EU law, to have access to any information held by institutions and agencies "by means of inspecting their accounts, taking copies, and obtaining extracts from any document or contents of any data medium."

However, the Supervisory Committee declared that this legal basis "does not cover the request to national authorities" - raising questions of how OLAF managed to get Maltese telephonic data; and why Maltese authorities acquiesced to their requests in the first place.

In fact the Supervisory Committee opines that the use of this information could be seen as "interference by a public authority" in the privacy of people, citing the European Court of Human Rights' case-law.

In another serious instance, an OLAF investigator and assistant asked a witness to make a private telephone call in their presence, which call was then recorded by the investigator. The transcription of this telephone call does not appear in the case file.

In its report, the Supervisory Committee said that such a recording could have bee carried out in breach of the Charter of Fundamental Rights of the EU and the European Convention of Human Rights.

"The recording of a telephone conversation in the presence of an official of a public authority... making available his office, his telephone and his tape recorder, represented an interference in that person's right to respect for her correspondence," the committee said.

But the committee added that such an interference had to be "in accordance with the law" and "some basis in domestic law".

"OLAF's recording of a private telephone conversation was made in the framework of OLAF's investigation, by common agreement between the witness and the investigator in charge and with direct assistance of the latter, who prepared the contents of the telephone conversation.

"The Supervisory Committee is seriously concerned by the fact that OLAF does not seem to have conducted an analysis of the legal provisions empowering OLAF's investigators to gather evidence by way of recording private telephone conversations. The interference with the person's concerned right to respect of his private life and communications without legal basis would be contrary to the Article 7 of the Charter and to Article 8 of the ECHR."

The committee will be recommending that OLAF makes thorough verifications of the legal basis to any measures it takes when it interferes into people's private lives or private communications.

Dalli, who resigned on 16 October 2012 on the basis of a covering letter to the OLAF investigation, is currently in Malta. He is pursuing court action in the European Court of Justice for unfair dismissal from the European Commission.

According to OLAF, "unambiguous circumstantial evidence" shows that he was aware of a businessman's attempts to solicit a €60 million bribe from Swedish Match, to reverse an EU ban on the trade of snus tobacco. Dalli has denied these allegations. Silvio Zammit was charged in court with bribery, money laundering, and trading in influence. He has denied the accusation.