Updated 9pm

The man who brought John Dalli’s political career to an ignominious end has been handed a one-year suspended prison sentence by a Belgian court.

Giovanni Kessler broke the law when he arranged for a conversation between one of Dalli’s canvassers and a tobacco lobbyist to be recorded, the court ruled.

Kessler led EU anti-fraud office OLAF at the time and continued to serve as its director-general until 2017.

A report he drafted alleged that Dalli, at the time the EU’s Health Commissioner, held improper meetings with tobacco lobbyists and linked that to one of his canvassers, Silvio Zammit, soliciting a multi-million bribe to allow smokeless tobacco snus to be made legal within the EU. 

Dalli was made to resign from his European Commission post following that OLAF probe. 

He was subsequently charged in Malta with trading in influence in connection with Zammit's solicitation of a bribe. He denies those charges. Zammit was also charged in court but died before the case was concluded. 

Dalli had also filed court proceedings in Belgium against OLAF and Kessler in late 2012, weeks after EU Commission President Jose Manuel Barroso forced him out of the Commission.

The European Commission fought to have those proceedings dismissed, arguing that both OLAF and Kessler enjoyed diplomatic immunity. Following a protracted legal battle, the Commission agreed to lift immunity with regard to a recorded phone conversation between ESTOC Secretary General Ingrid Delfosse and Zammit. 

On Friday, the 89th Chamber of the French-Speaking Tribunal of First Instance of Brussels ruled that Kessler had broken Belgian law when he authorised the recording of that conversation.

Delfosse had arranged to speak to Zammit over the phone while seated in Kessler’s OLAF office and being recorded. She took the call on speakerphone and testified that she agreed to be recorded at Kessler’s request.

She told the court that she had been briefed ahead of the call and was also handed slips of paper with questions to ask Zammit during it.

Kessler claimed that while he was aware of the call, it was organised by another OLAF agent and he did not have prior notice of it. He said that it was that other agent who coordinated the incident.

Kessler acknowledged that the phone call was broadcast on speakerphone but said he had trouble understanding what Zammit was saying.

But the court did not find those claims credible, noting that Kessler could not have been unaware of what was going on, given his position, Dalli’s high-profile role and the fact that the call was recorded in his own office.

The OLAF agent who Kessler said was responsible for the recording was Kessler’s subordinate, the court noted.

The court was similarly dismissive of Kessler’s arguments that he had not broken any law because the call was recorded rather than intercepted. It said it was especially perplexed by Kessler’s attitude throughout proceedings and his insistence that he was not aware of legislation regulating the recording of phone conversations.

According to Belgium's criminal code, it is illegal for a public officer to record a person's private communications without their consent, save for cases provided for by law. 

“This behavior shows that the accused does not seem to have been aware of the need for the exemplary nature that the high functions he held required,” the court said.

It however decided that, given Kessler’s clean criminal record, that he should be handed a suspended prison sentence rather than serve time behind bars.

It therefore sentenced him to a one-year prison sentence, suspended for two years and ordered him to pay a fine to a special fund for victims of intentional violence.

Dalli’s bid for damages from Kessler was however rebuffed by the court, which noted that the conversation under review concerned Zammit and Delfosse. Dalli had not proven that he had been damaged by the call and his request for damages was therefore unfounded, the court ruled.

Dalli: Immunity for OLAF is no longer tenable

In a statement reacting to the verdict, Dalli emphasised that the case had been delayed due to the European Commission resisting Belgian legal proceedings and accused the Commission of obstructing the invrestigation.

When the Commission agreed to lift Kessler’s immunity, it did so only with regard to the recording of the phone call, he said, meaning Belgian authorities were unable to investigate and rule on OLAF’s broader investigation into him.

“It took 11 years to finally breach the European Commission’s secrecy, although on just one part of the investigation. On this one part, on which the immunity granted by the Commission was lifted, DG OLAF was found at fault,” Dalli said.

“If the Commission wants to be credible with issues of the rule of law and of human rights, it cannot continue to refuse a proper scrutiny of the actions of its officers. The maintaining of immunity granted to OLAF and its DG in the way they conducted the investigation is no longer tenable.”

Correction September 16, 2023: A previous version stated that the recorded call concerned an alleged bribe solicitation by Zammit. The call in question was a different call and unrelated to alleged solicitation attempt.