Challenges to Freedom of Expression in Qatargate Investigation

The Belgian prosecutor’s ban on Qatargate suspects speaking to the press, aimed at maintaining a “serene atmosphere,” lacks legality and is against fundamental rights. Consequently, the December 22, 2023 order, imposing the “gag” on suspects and lawyers, was annulled by the “Chambre des mises en accusation.” It is the Court of Appeal section that reviews the decisions of the Council Chamber. This same body is also set to evaluate the legitimacy of the entire investigation’s documents in the coming May.

The decision, issued on February 14, followed Maxim Toller’s request, acting on behalf of Marc Tarabella. Tarabella, along with other suspects, faced new conditions last December, to avoid re-imprisonment. These conditions included absolute silence – both from him and his lawyer – towards the press, a novel restriction infringing upon freedom of expression and the presumption of innocence. This constraint arose following interviews by Eva Kaili and her lawyer husband Francesco Giorgi, Pierre Monville. She is also barred from to speaking the media.

These prohibitions from the Belgian authorities seriously violate the fundamental rights of individuals involved in investigations. It is also not a practice observed worldwide for authorities to deprive suspects of speaking to the media.

Surprisingly, Certain newspapers, aligned with the prosecutor’s stance, attempted to reignite the scandal just before December 9th, publishing new information, strictly under investigative secrecy, which although lacking criminal relevance, fueled public outrage. Doubts surrounding the investigation, compounded by the resignation of the investigating judge Michel Claise due to a conflict of interests – linked to affairs involving his son and that of Maria Arena, an MEP who avoided investigation – persisted. These doubts culminated with the release of a recent audio recording, secretly taped by Giorgi, revealing the prosecutor’s mistrust in the “repentant” witness, who was pardoned based on his statements, and interference with Giorgi’s defence strategy, covertly monitored at home during discussions with his lawyer.

Moreover, The Chambre des mises en accusation emphasized a fundamental principle: when extending measures imposing new conditions, the investigating judge or the court must adhere to Article 35, paragraph 2, of the law of 20 July 1990, justifying any new restrictions on freedom of movement. 

However, the December 22 order imposed a gag, both direct and indirect, without justifying, citing the need for a calm investigative atmosphere. This climate remains unaffected by the one-sided circulation of documents favouring the accusation, perpetuated in newspapers like Le Soir. Journalists, even published a book on the investigation, effectively presuming the suspects guilty, thus violating their presumption of innocence.

In his request, Tarabella emphasized that the new condition violates his fundamental rights to freedom of expression and defence, even in the public domain, without justification based on any criteria outlined in Article 16 of Belgium’s law on preventive detention. This article stipulates restrictive measures in cases of flight risk, evidence tampering, crime repetition, or collusion with third parties, none of which include maintaining a “peaceful climate,” as the MEP highlighted. 

Additionally, Tarabella argued that the new condition would breach Article 57, paragraph 8, paragraph 4, of the Belgian Code of Criminal Procedure, which allows his lawyer to communicate with the press to safeguard his defence rights.

In fact, the code specifies that the lawyer may, “when the interest of his client requires it, communicate information to the press,” in compliance with the presumption of innocence, the rights of defence of the accused, victims, and third parties, privacy, personal dignity, and the rules of the profession. From this provision, it is clear that a lawyer can communicate with the press both when the interests of his client require it and when his client must exercise his defence rights. 

Tarabella expresses surprise, particularly, by the fact “that this condition was not imposed for many months when the investigation was still in its initial stages, and that only at the end of 2023 did the investigating judge deem it necessary to limit the right to freedom of expression of the applicant.”

An even more curious ban since “two journalists (those from Le Soir, in fact, ed.) have just announced that they will publish a book on ‘Qatargate’ in the next few days – then actually published at the end of January, ed. – Likewise, the same public sector issues press releases or, through the voice of the ‘press’ magistrate or the federal prosecutor in person, regularly responds to interviews relating to the case in question. On the other hand, the suspects, on whom the crime is yet to be proven, are not allowed to speak. This represents a serious inequality from Belgian authorities.

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