Kazakhgate PIC Report by Bhavan Singh

DOC 54 2179/007

BELGIAN HOUSE OF REPRESENTATIVES 16 April 2018

PARLIAMENTARY ENQUIRY COMMITTEE responsible for investigating the circumstances leading to the adoption and application of the miscellaneous provisions law of 14 April 2011 on plea bargains

REPORT DRAWN UP ON BEHALF OF THE ENQUIRY COMMITTEE BY Mr Eric MASSIN AND Mr David CLARINVAL, Ms Sonja BECQ and Mr Vincent VAN QUICKENBORNE

See: Doc 54 2179/ (2016/2017): 001: Proposal by Mr Maingain, Mr Gilkinet, Mr Massin, Mr Delperée, Mr Van der Maelen, Mr Van Hees and Mr Van Hecke. 002: Amendments. 003: Report. 004: Text adopted by the Committee. 005: Amendments. 006: Text adopted in plenary meeting. See also: Full report: 1 December 2016. 8340 2017/2018 HOUSE • 5th SESSION OF THE 54th TERM

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Composition of the Committee on the date of submission of the report Chairman: Dirk Van der Maelen A. — Incumbents:

B. — Alternates:

N-VA

Peter De Roover

PS MR CD&V Open Vld sp.a Ecolo-Groen cdH DéFI

Sophie De Wit, Koenraad Degroote, Werner Janssen, Goedele Uyttersprot Karine Lalieux, Eric Massin David Clarinval, Gilles Foret, Damien Thiéry Sonja Becq, Vincent Van Peteghem Sabien Lahaye-Battheu, Vincent Van Quickenborne Dirk Van der Maelen Georges Gilkinet Francis Delpérée Olivier Maingain

Julie Fernandez Fernandez Kattrin Jadin Roel Deseyn Tim Vandenput Peter Vanvelthoven Kristof Calvo Christian Brotcorne

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SUMMARY

Pages

SECTION 1 — GENERAL

CHAPTER 1. Creation, tasks and remit of the parliamentary enquiry committee

Section 1 Creation of the parliamentary enquiry committee

Section 2 Tasks and remit of the parliamentary enquiry committee

CHAPTER 2. Procedure

PART II — REPORT

Introductory remarks

Part I. Naturalization and acquisition of nationality

I. Findings

1. The naturalization of Mr Patokh Chodiev 1.1. Legislation in force concerning naturalization, work permits and professional cards at the time of Mr Patokh Chodiev's request

30 30

1.1.1. Current naturalization legislation 1.1.2. Applicable legislation relating to professional cards and work permits 1.2. Naturalization procedure in the House of Representatives 1.3. The case of Mr Patokh Chodiev 2. The acquisition of Belgian nationality by Mr Alijan Ibragimov 2.1. Legislation in force concerning naturalization, declaration of nationality and the granting of professional cards at the time of the applications lodged by Mr Alijan Ibragimov 2.1.1. Current naturalization legislation 2.1.2. Procedure and conditions for the acquisition of Belgian nationality by declaration of nationality before a Civil Registry Officer, as applicable between 1995 and 2006 2.1.3. Legislation in force on professional cards at the time of Mr Alijan Ibragimov's request 2.2. The case of Mr Alijan Ibragimov 2.2.1. Failed naturalization attempt of Mr Alijan Ibragimov 2.2.2. Declaration of nationality made before the Civil State Officer

30 34

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3. The links connecting Mr Patokh Chodiev, Mr Alijan Ibragimov and Mr Alexander Machkevitch with Tractebel and the court cases involving them from 1996 onward 3.1. Connections of Mr Patokh Chodiev, Mr Alijan Ibragimov and Mr Alexandre Machkevitch with Tractebel 3.2. Judicial Section 3.3. Court cases involving Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch from 1996 onward II. Assessments

65 65 67 70

1. Nationality legislation 1.1. Naturalization 1.2. Declaration of nationality 2. State security 2.1. Naturalization 2.2. Declaration of nationality 3. Judicial authorities 4. Interventions 5. Forfeiture of nationality

70 70 71 72 72 72 73 73 74

III. Recommendations 1. 2. 3. 4.

Naturalization Banque Carrefour de la Sécurité State security Judicial authorities

75 75 76 76

Part II. Drafting of the miscellaneous provisions law of 14 April 2011 on plea bargains

I. Findings 1. Introduction 1.1. Legal framework under article 216a of the Belgian Criminal Code before the Law of 14 April 2011 1.2. Areas for consideration with a view to extended plea bargains 2. Problem of seizures in the diamond trade 2.1. Introduction 2.2. The idea of “a fine that ends prosecution” (= extending the plea bargain concept) 2.3. Proposed law on various measures relating to the seizure of company property 3. Preparation of the preliminary draft for broadening plea bargains 3.1. Local consultation in Antwerp

78 78 78

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4. 5. 6. 7.

3.2. The Panel's Working Group on plea bargains in the fight against tax and social security fraud 3.3. Work within the criminal procedure expertise network of the public prosecutor's office 3.4. Work at government level Parliamentary enquiry committee on major tax fraud Outgoing government and current affairs (April 2010 - December 2011) Initiatives of Antwerp World Diamond Centre (AWDC) during the current business period (September 2010 - January 2011) Initiatives by Armand De Decker and Catherine Degoul on the extended plea bargain (13 January 2011 - 20 February 2011)

113 119 127 130 134 139 143

8. Domestic pressures 9. Banking secrecy 9.1. Proposals to the House of Representatives for a law on banking secrecy (November 24, 2010 - February 16, 2011) 9.2. External pressure regarding banking secrecy (2010) 9.3. Introduction lifting of international banking secrecy in the miscellaneous provisions law (October 2010 - 3 February 2011) 9.4. Political linking of banking secrecy and plea bargains 9.5. Notification of the Council of Ministers of 3 February 2011 and consultation between political groups with a view to tabling an amendment (3 February 2011 - 2 March 2011) 10. Draft miscellaneous provisions law: debate and vote on the "Extended Plea Bargain" Act in the House (February 23, 2011 - 17 March 2011) 11. 2011 Budgetary control (16 March 2011) 12. Draft miscellaneous provisions law: debate and vote on the "Extended Plea Bargain" Act in the Senate (16 March 2011 - 31 March 2011) 12.1. The legislative procedure followed in the Senate

149 150 150

12.2. Review by the Justice Committee 12.3. Hearing of 22 March 2011 12.4. Review in plenary meeting 13. Restorative Law 13.1. Review by the Senate Justice Committee 13.2. Review in plenary meeting 13.3. Debate and vote on the Remedial Law in the House (26 April 2011 30 June 2011)

195 198 211 212 215 217 219

II. Assessments 1. 2. 3.

159 163 171 179 187 192 192 192

224

General comment Appearance of the “extended plea bargain concept” Political decision-making 2017/2018 HOUSE • 5th SESSION OF THE 54th TERM

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4. 5. 6. 7.

Experts - Invited to hearings Lobbying The legislative process Transparency and ethics

227 228 228 229

III. Recommendations 1. 2. 3. 4.

230

Transparency – Ethics Legislative procedure Lobbying Invited expert hearings

230 230 231 232

Part IIa: Putting together of Mr Patokh Chodiev’s legal team on behalf of the Elysée 1. 2. 3.

Preliminary remark Background Contacts between Mr Armand De Decker and State Security

233 233 235 241

Part III. Application of the “extended plea bargain” law until the entry into force of the amending law of 11 July 2011

245

Findings 1.

General guidelines for the implementation of the extended plea bargain as part of the preparation and entry into force of the Law of 14 April 2011 2. The extended plea bargain concluded in connection with the Société Générale - Belgimont scrl case 2.1. Tax section 2.2. Restrictive section 3. The extended plea bargain concluded in the case relating to Mr Patokh Chodiev, Mr Alexandre Machkevitch and Mr Alijan Ibragimov and consorts 3.1. 3.2. II.

Tax section Criminal section

245 255 255 257 271 271 272

Assessments 1. Introduction 2. Plea bargain: General comments 3. Tasks of the justice system 4. Reasonable time (article 21b of the preliminary Title of the Belgian Criminal Procedure Code) 5. Panel of General Prosecutors – Minister of Justice 6. General - Involvement of the public ministry 2017/2018 HOUSE • 5th SESSION OF THE 54th TERM

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7. 8. 9. 10. 11. III.

The “Société Générale and Belgimont Scrl” case The “Chodiev and consorts” case Foreign interventions Notable interventions Liaison magistrate - seconded magistrate

Recommendations 1. 2. 3.

313 314 315 315 316 317

Plea bargain: General comments Liaison Magistrate - Seconded Magistrate Parliamentary audit

PART III — VOTES

317 318 318 319

Appendices 1. Full minutes of the public hearings (available on the House’s website: www.lachambre.be) 2. Summary of hearings 3. Timeline 4. Inventory of documents forwarded to the enquiry committee 5. List of abbreviations used

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LADIES, GENTLEMEN, The parliamentary enquiry committee met on 1, 8 and 22 December 2016, 11, 18 and 25 January 2017, 1, 8, 15 and 22 February 2017, 8, 15, 22 and 29 March 2017, 19, 24 and 26 April, 3, 5, 10, 15, 17, 18, 22, 24, 30 and 31 May, 7, 14, 21, 28 and 29 June, 5, 6, 7, 10, 12, 14 and 18 July, 20 September, 4, 13 and 25 October, 7, 8 and 17 November 2017, 6 and 13 December 2017, 10, 11, 17, 24 and 31 January 2018, 7, 21 and 28 February 2018, 2, 7, 9, 14, 16, 21, 23, 26, 28 and 30 March 2018.

SECTION 1 — GENERAL CHAPTER 1 Creation, tasks and remit of the parliamentary enquiry committee Section 1 Creation of the parliamentary enquiry committee On 23 November 2016, Messrs Olivier Maingain, Georges Gilkinet, Eric Massin, Francis Delperée, Dirk Van der Maelen, Marco Van Hees and Stefaan Van Hecke tabled a proposal to set up a parliamentary enquiry committee to investigate the circumstances that led to the adoption and application of the miscellaneous provisions law of 14 April 2011 on plea bargains (DOC 54 2179/001). This proposal argues that the Law on the extended plea bargain1 is of great importance and that it makes fundamental changes to the principles of criminal procedure. Given the speed with which this law was passed and the manner in which it was adopted by the legislative assemblies, the authors wonder, also with regard to certain information published in the press, whether there was foreign interference in this process. They also raise questions about the first applications of the Law2 and how Mr Patokh Chodiev and Mr Alijan Ibragimov obtained Belgian nationality.

1 Article

84 of the miscellaneous provisions Law of 14 April 2011, Belgian Monitor, 6 May 2011. this instance, extended plea bargains dating from the period preceding the entry into force of the Law of 11 July 2011 amending Articles 216a and 216b of the Belgian Criminal Investigation Code and Article 7 of the Law of 6 June 2010 introducing the Belgian Corporate Criminal Code, Belgian Monitor, 11 August 2011 (hereinafter: “the amending law”). 2 In

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The authors request that a parliamentary enquiry committee be set up to examine these facts. During the plenary meeting of 1 December 2016, the House of Representatives unanimously decided to set up a parliamentary enquiry committee. On 8 December 2016, the bureau of the parliamentary enquiry committee was set up as follows: —

Chairman: Mr Francis Delpérée

—

first vice-chairman: Ms Sophie De Wit

—

second vice-chairman: Mr Dirk Van der Maelen

—

third vice-chairman: Mr Georges Gilkinet

— reporters: Mr Eric Massin, Mr David Clarinval, Ms Sonja Becq and Mr Vincent Van Quickenborne. On 15 December 2016, Mr Francis Delperée indicated that he no longer wished to chair the Committee. Mr Dirk Van der Maelen took over the Chair. Mr Francis Delperée then assumed the role of second vicechairman. Section 2 Tasks and remit of the parliamentary enquiry committee A. Tasks In Article 1 of the proposal adopted in plenary meeting (DOC 54 2179/006), the tasks of the parliamentary enquiry committee are described as follows: § 1st. A parliamentary enquiry committee has been set up and is responsible for investigating the circumstances leading to the adoption and application of the miscellaneous provisions law of 14 April 2011 on plea bargains. The Enquiry Committee is also responsible for reviewing the application by the public ministry of article 216a of the Belgian Criminal Investigation Code, in particular as amended by the miscellaneous provisions law of 14 April 2011, from the entry into force of that Law until 20 August 2011. In the end, the Enquiry Committee is responsible for examining how Messrs Patokh Chodiev and Alijan Ibragimov obtained Belgian nationality.

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The second paragraph of the article provides that, on the basis of these findings, the parliamentary enquiry committee will draw conclusions, make recommendations and identify the responsible parties, where applicable. To clarify the mandate of the enquiry committee, the Speaker of the House sent a letter to the Minister of Justice on 3 February 2017, which reads: “At the plenary meeting on 19 January 2017, you were asked a question about “the rapid adaptation of the law on plea bargains”. In your reply, you indicated that you preferred to await the findings of the enquiry committee, in view of the tasks entrusted to the enquiry committee, which consist in carefully examining the new Article 216a. The Chairman of the enquiry committee informed me in this regard that the committee was not required to conduct a general assessment of the law. He asks me to inform you of this and refers in particular to Article 1, §1, paragraphs 1 and 2 of the tasks of the enquiry committee.” (translation) B. Remit Article 2 of the proposal recalls that the parliamentary enquiry committee is vested with all the powers provided for in the parliamentary enquiries law of 3 May 1880. In order to do so, the Parliamentary Enquiry Committee may (see Article 1, § 3, of the Law of 3 May 1880) “interview any person whom it considers should be required to appear, and shall have all the documents it deems necessary to carry out its task. The committee is authorised to carry out on-the-spot inspections and, where appropriate, to make the international contacts required for the performance of its task”. The witnesses are sworn in, pursuant to article 8 of the above-mentioned Law of 1880. In carrying out its tasks, the parliamentary enquiry committee will not replace judicial enquiries or extrajudicial enquiries and procedures.

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Its enquiry may work in tandem with these enquiries and proceedings but must not hinder the performance of such investigations (see Article 3 of the proposal). The parliamentary enquiry committee or its Chairman, provided that they are authorized to do so, may take all the investigations provided for in the Belgian Criminal Investigation Code (Article 4, ยง 1 of the Law of 3 May 1880). For the completion of investigations that must be determined beforehand, the chairman of the enquiry committee may require the president of the court of appeal to brief one or more counsels at the court of appeal or one or more judges at the court of first instance in the jurisdiction in which the investigations are to be carried out (article 4, ยง 2, of the law of 3 may 1880). The investigations must be carried out within the jurisdiction of the Brussels Court of Appeal. Since magistrates within the jurisdiction of the Brussels Court of Appeal will be called to testify, the question arises as to whether it would not be appropriate to ask the Minister of Justice to authorize a magistrate from another jurisdiction to carry out the investigations. However, the enquiry committee has decided not to request an exception in this matter from the Minister. In a letter dated 22 December 2016, the parliamentary enquiry committee calls on the President of the Brussels Court of Appeal to appoint a magistrate to carry out any investigations. In a letter dated 2 January 2017, the Chairman of the parliamentary enquiry committee was informed of the appointment of Mr Patrick Gaudius, an investigating judge at the Brussels Court of First Instance, as liaison magistrate.

CHAPTER 2 Procedure 1. Method tasks.

The committee has decided to split its work into three parts, in accordance with the various enquiry

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The first part concerns the naturalization procedure and the obtaining of Belgian nationality. The second deals with the drafting of the law on the extended plea bargain. The third deals with the application of the miscellaneous provisions law of 14 April 2011 concerning the extended plea bargain (EEAPS) until the law of 11 July 2011 amending articles 216a and 216b of the Belgian Criminal Investigation Code and the law of 20 August 2011 (amending law) are adopted (hereinafter: “the amending law”). For each of these, the parliamentary enquiry committee has drawn up a list of persons to be interviewed and documents to be requested. Since, in accordance with Article 5 of the proposal, it can call on experts in the course of its work, the parliamentary enquiry committee decided at its meeting of 22 December 2016, to appoint Ms Christine Matray, Honorary Advisor to the Court of Cassation, and Mr Christian Behrendt (Ulg), as a constitutionalist and expert in ethics. Mr Patrick Waeterinckx was appointed as an expert in criminal law at the meeting on 18 January 2017. On 18 January 2017 Mr Marc Delanote was appointed as a tax expert for part III relating to the application of the law in connection with the extended plea bargain. The experts, Ms Christine Matray and Mr Christian Behrendt were discharged of their duties on 27 and 28 September 2017 respectively. 2. Witnesses The committee has interviewed 177 witnesses. I. Members of parliament In accordance with Article 1 of the proposal to set up a parliamentary enquiry committee, the committee must check how the law of 14 April 2011 has been discussed at the legislative assemblies. On this matter, the question was raised whether parliamentary non-accountability (article 58 of the Belgian Constitution) prevents a current or former member of parliament from testifying under oath about his or her involvement in the drafting of the law. Before the work of the parliamentary enquiry committee started, this question was submitted to the Legal Department of the House.

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In a memo3, the Legal Department emphasized that article 58 of the Constitution is designed to ensure the independence of members of parliament from any instance other than the Assemblies themselves. A member of parliament can therefore be called to testify under oath in a parliamentary enquiry into the circumstances that led to the creation of a law. The members of the parliamentary enquiry committee have read the Legal Department’s memo. II. Non-appearance of witnesses (summons); professional secrecy; presence of a lawyer In accordance with article 8, paragraph 3 of the law of 3 May 1880, the parliamentary enquiry committee has called the witnesses by letter and by summons4. As one witness was unable to appear before the parliamentary enquiry committee because he was living abroad and could not travel for health reasons, the parliamentary enquiry committee interviewed this witness by videoconference. Several witnesses invoked professional secrecy in accordance with article 8, paragraph 10 of the above-mentioned law5. As required by the law they appeared and were sworn in, and then invoked professional secrecy6. The guardian of a professional secret has the right, but not the duty, to speak. If a witness decides not to invoke professional secrecy, he or she cannot, on the basis of Article 458 of the Penal Code, be prosecuted for breaching professional secrecy. The invocation or not of professional secrecy is however a matter of personal choice, even if he or she has received orders from his or her superior. The parliamentary enquiry committee has taken note of the fact that it cannot compel a witness who invokes professional secrecy to testify. It has however noted that the option of invoking professional secrecy is intended to protect the witnesses themselves, and not to prevent them from testifying.

Memo of the House’s Legal Department, SJD/2016/0238. Art. 8, paragraph 3 of the law of 3 May 1880 on parliamentary inquiries: "Anyone can be called as a witness. The invitation is sent in writing and, if necessary, by summons.". 5 Art. 8, paragraph 10 of the Act of 3 May 1880 on parliamentary inquiries: "Without prejudice to the invocation of professional secrecy referred to article 458 of the Belgian Penal Code, any witness who, in making a statement based on truth could be exposed to criminal prosecution, may refuse to testify.". 6 Memo by the expert Patrick Waeterinckx of 13 March 2017, on the scope of a lawyer’s professional secrecy. 3 4

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The parliamentary enquiry committee frequently faced requests from witnesses to be accompanied by their lawyers. It accepted that a lawyer can be present and could be consulted during the hearing. 3. Public or in camera meetings (closed session) In accordance with article 3, paragraph 3 of the law of 3 May 1880 on parliamentary enquiries, the meetings of the Committee are open to the public. The enquiry committee may however decide the contrary at any time. Whenever this decision constitutes an exception to the rule, it must be reasoned7. As the tasks of the parliamentary enquiry committee notably involve an investigation into the actual operation of parliament, its members were of the view that the parliamentary enquiry’s meetings should, where possible, be held in public. The parliamentary enquiry committee has therefore chosen to hold the greatest possible number of hearings as public meetings and will only derogate from this procedure in exceptional circumstances, in full openness and transparency. Due to the nature of some of the information made available to the parliamentary enquiry committee, it has decided to hold a series of hearings in camera. In the majority of cases, the initial request originated from the witnesses themselves. The parliamentary enquiry committee has examined each individual request on a case by case basis. The question that arose was that of whether the hearings during which the acquisition of nationality by Messrs Patokh Chodiev and Alijan Ibragimov was examined were to take place in camera or not. The parliamentary enquiry committee also discussed this point during its meeting on 25 January 2017 and decided to investigate the acquisition of nationality by these two persons in a public meeting. The parliamentary enquiry committee found in this regard that it concerned naturalization procedures that had been completed a long time ago and that, for the interested parties, no legal consequences could be pursued in any manner: both parties concerned had definitively acquired Belgian nationality.

See Marc Van der Hulst and Koen Muylle, the Federal Parliament: Composition, organization and work, 2017, n° 909.

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Similarly, with regard to the closed legal cases that the judicial authorities allowed the parliamentary enquiry committee to consult, the parliamentary enquiry committee interviewed the investigating magistrates handling the cases in a public hearing, except where the magistrate concerned expressly requested an in-camera hearing. The investigation reports of the R and P Standing Committees prepared for the parliamentary enquiry committee, which have been marked "restricted circulation - AR 24.03 2000" in accordance with the Royal Decree of 24 March 2000 on the enforcement of the law of 11 December 1998 relating to classification and to security clearances, certificates and notices of security, were discussed in a public meeting, except where the chairmen of the respective standing committees asked the Committee to meet in camera because of the highly sensitive nature of an enquiry report, not only with regard to the facts and events raised, but also the persons summoned. The work on the preparation of the report was carried out in-camera.

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PART II — REPORT INTRODUCTORY REMARKS 1. Over the last fifty years the work of parliamentary enquiry committees has played an increasingly important role in the life of parliamentary institutions, and in particular House of Representatives. 2. Since 6 January 2014, the House has recognized, in article 56, paragraph 1, of the Constitution, the monopoly of these investigations at the federal level; it pursues them under conditions laid down by the law of 3 May 1880 on parliamentary inquiries (amended on many occasions since then, and most recently on 6 January 2014 - entry into force on 25 May 2014). 3. As intended by article 2 of the law of 3 May 1880 on parliamentary enquiries, "In the framework of the task that it defines, (the House) exercises this right (of enquiry) by itself or by a committee composed of its members". On 1 December 2016, a parliamentary enquiry committee was set up with responsibility for investigating the circumstances leading to the adoption and application of the miscellaneous provisions law of 14 April 2011 on plea bargains”. The work undertaken in this context presented specific characteristics. These should be noted at the outset. 4. To understand the purpose of the numerous steps undertaken by the enquiry committee, the various obstacles that it encountered on its path and the different methods that it had to implement to complete the task that the House of Representatives had assigned to it successfully and in a timely manner, it helps to put these in context. 5. It is worth reading the committee’s report in the light of the introductory remarks below. 1. Object 6. The House of Representatives set the enquiry committee that it set up three tasks. These were split into three parts, namely part I (nationality and naturalization), part II (the drafting of the law) and part III (the application of the law).

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7. First of all, the enquiry committee examined the matter of the granting of nationality and the acquisition thereof by the two persons mentioned in the case. In so doing it examined the rules and practices that the House was required to apply, in particular in relation to naturalization procedures (Const., art. 5), including under legislation has since then been extensively amended. 8. The question of the respective roles of the government and its departments, of the Parliamentary Assembly and its departments, of members of the naturalization committee and even persons out the executive and legislative branches, is discussed at length in the first part of the work. 9. It is an unusual exercise in self-examination by the House of its activities, the role of its members, the organization of its departments and the contacts that it may have with external institutions and persons. This exercise was not unproductive. Internal reforms should not be ruled out, given the results of the work completed so far (see the recommendations relating to this part below). 10. As a result of part II, the enquiry committee also examined the conditions under which the special legal provisions aimed at expanding the plea bargain system were drafted, and in particular a more general law implementing the various provisions. 11. Here again, the enquiry committee had to examine more closely the conditions under which the law was drafted, on its specific drafting methods when the branches of the legislative power intervene in routine proceedings and on the overall consequences that the use of these methods may have on the conception, drafting and implementation of laws. 12. Once again, this exercise, unusual as it may be, is not without merit. It helps to improve the working methods that govern the drafting of the laws by the government and by the parliamentary institutions. It may result in a set of guidelines that would help with the drafting of the law, especially during unusual periods. 13. On this matter, it is worth recalling an element of constitutional law. The proposed law saw the light of day in 2011, at a time when a form of imperfect bicameralism subsisted in relation the drafting of the law (aside from the few monocameral laws, including the law on the "granting of naturalization" (1Â°)), by virtue of Article 74 of the Constitution in force at this time. This era ended in May 2014.

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14. The enquiry committee has thus had to examine, principally or incidentally, the manner in which the three powers - executive, legislative and judicial - should operate in a democratic society. 2. Object (a) 15. The enquiry committee ended up examining related cases were not strictly speaking part of the task entrusted to it. And that is because persons cited, as principals or accessories, in parts I, II and III of this enquiry appeared on first examination to have played a not insignificant role in the development of the matters mentioned in these other cases. 16. Primarily wishing to check the conditions under which the extended plea bargain law had seen the light of day and was subsequently applied, the enquiry committee did not think it necessary to dig deeper into these other cases, especially as some of them could prove to be highly convoluted. Investigations in these areas would have drawn the committee away from "the task that (the House had) set it" and might have obstructed its timely fulfilment. 17. The committee has kept the development of its analyses within a narrow focus. It set itself the task of tracing back the milestones that marked the development and application of a law. Its task, on the basis of its findings, was to draw conclusions and make recommendations and to identify the responsible parties, if any. The enquiry committee was to check at a more institutional level whether shortcomings, imperfections or malfunctions might have appeared in the decision-making process during the period in question, either at political, administrative or judicial level. It focused on the statement of recommendations which, if they are followed, will achieve useful reforms and will prevent problematic situations from occurring in the future.

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3. Time 18. The parliamentary enquiry committee has thus had to compile a case in which a number of facts, actions or declarations, including those covered in part I, date back more than twenty years. Part II covers the period between 2007 and the first half of 2011, while part III covers 2011-2012. 19. Certain documents drafted at the time have been destroyed as a result of routine archiving. Others have disappeared without explanation. Certain witnesses are no longer with us. The explanations provided by others remain vague or incomplete when the questioning related to factual aspects of the case. The passing of time means that a number of witnesses, some of them very important, no longer remember exactly what was said or what happened at a given time. Others conveniently attribute gaps in their memory to the passing of time. 20. At the same time, other witnesses can recall facts or actions which they knew about but invoke the law, case law or claim that they have been so instructed, to assert their "right to silence". Others mention court cases in Belgium or abroad in which they are directly or indirectly involved and about which, by virtue of article 8, last paragraph, of the law of 3 May 1880 on parliamentary enquiries, they do not wish to go into further details (below). Moreover, the fact that certain individuals or bodies forwarded a lot or a little bit of information to the enquiry committee does not mean that we can conclude that they have played a more or less significant role in the creation of the law than other individuals or bodies that forwarded little or no information to the enquiry committee. 21. The enquiry committee has taken note of these blanks, gaps and silences. but has not been able to fill in the gaps each time. The Committee, which is often presented - incorrectly - as "an investigating judge" - as the law allows it to take "all the investigative measures provided for by the Belgian Criminal Investigation Code" (art. 4, Â§ 1 of the law of 3 May 1880) - does not have the human and material resources available to engage in thorough investigations on its own initiative. Without having recourse to a Liaison Magistrate, the members have neither the means nor the methods for collecting information other than what they have already through the testimonies given or the documents that are presented, such as correspondence.

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22. There is a straightforward consequence. When the enquiry committee was unable to obtain reliable information or did not have the opportunity to check by itself the accuracy of the information obtained for it, it refrained in its report from fabricating and then expanding on assumptions that would not have been based in fact or in law. The quality of the work carried out is evidence of this self-discipline. 23. As it proceeded, the committee was able to cross-check the information obtained and to establish a reliable timeline. Using this tool it was able to reconstitute the broad outlines of the chronology of the political case (part II) and the judicial case (part III), and the manner in which the two overlapped. 24. The committee was then able to see that certain facts were linked, some were possibly linked, and others not at all. 25. Another time-related issue has not been forgotten. The parliamentary enquiry committee has had to put in motion a "time machine", especially for part I. Twenty years ago, legislation, administrative practices and judicial methods were not the same as those that are in force today. The state of the department’s human and financial resources was not comparable. Computerization of legislative, administrative and judicial records was in its infancy. Public demand for democratic transparency was not taken notice of as intensely as it is today. 26. It is worth noting these developments without wanting to "judge", at the price of obvious anachronisms, yesterday’s situations against the yardstick of today’s realities and mentalities. It is also important to take account the changes to the texts and practices that have taken place in the meantime, and which address more current concerns, even if only partially or imperfectly. Referring to the timeline can be valuable in this area too.

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4. Scope 27. Another peculiarity of the case merits closer attention. It is not just a purely Belgian case, even if, by necessity and in respect for the institutions, a series of Belgian personalities appear at various stages in the lawâ&#x20AC;&#x2122;s drafting and application procedure. 28. The case also has ramifications abroad, notably in France and in Kazakhstan. It is with this in mind that the enquiry committee has expressed the wish to interview a number of persons who are foreign nationals, or who reside permanently abroad even though they have Belgian nationality8. 29. "Anyone and everyone" - the expression is particularly broad and allows no exceptions - "can be called as a witness" (art. 8, paragraph 3 of the law of 3 May 1880 on parliamentary enquiries). "Any person summoned to be interviewed as a witness will be required to appear and to fulfil the summons, on pain of a prison sentence of between eight days and six months and a fine of between five hundred and ten thousand euros". It is stated that "the provisions of Book 1 of the Belgian Penal Code, without exception of Chapter VII and of article 85, are applicable" (Art. 8, paragraph 8, of the law of 3 May 1880). 30. Some foreign witnesses responded positively to the invitation that was sent to them, others did not. It is not clear whether other invitations were actually received by their recipients (as they have not replied to the letters, emails or telephone calls sent or made to them for several months). Some summonses could not be sent due to the lack of correct addresses, especially overseas. Other witnesses claimed to have serious health problems. 31. The enquiry committee notes that it does not have the material resources or legal prerogatives to compel foreign witnesses to effectively respond to the invitations or summonses sent to them. To work effectively it relies on their goodwill. The penalties prescribed by the law are difficult to apply in this case.

8 In

2003 the parliamentary enquiry committee tasked with investigating the circumstances that led to the Sabena bankruptcy, identifying the responsible parties, if any, and making recommendations for the future examined the option of performing certain investigative duties abroad. It is clear from the work of this Committee (DOC 50 1514/003, p. 27) that the opportunities were limited and that they were based on whatever goodwill the foreign authorities were willing to show.

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5. Justice 32. Article 1, paragraph 2, of the law on parliamentary enquiries lays down this cardinal rule: "Enquiries carried out by the House of Representatives do not replace those of the judiciary, with which they may work in tandem, but must not hinder their performance". 33. The rule can be broken down into three components. 34. First, it must relate to the specific objects that the parliamentary enquiry and the judicial investigation are pursuing. The names used here are misleading. They tend to give the impression that "an enquiry is an enquiry" and that the same rules apply as regards the methods used, the persons interviewed and the results achieved. 35. On the contrary, it should be remembered that a parliamentary enquiry is an extension of the tasks usually assigned to the House, namely monitoring the government, drafting the law and checking the operating methods of the public authorities, including those of the cameral institution. In theory it operates in the public eye. The enquiry committee aims to identify actions that could constitute offences and could therefore merit criminal sanctions. Its work is confidential. It interviews witnesses and may take action against individuals. 36. The two enquiries are carried out in different contexts. Neither enquiry should encroach on the tasks assigned to the other. 37. Secondly, it must be accepted that the enquiries may operate “in tandem” (en concours). This expression needs to be understood correctly. It is not a matter of holding a “competition” or a race, with a battle of egos between the authorities tasked with the respective enquiries. “In tandem” means that the two enquiries can proceed concomitantly - one might also say “in parallel”. They may be required to deal with the same laws, actions, situations and persons. But it is the responsibility of the authorities carrying out their respective enquiries to perform their investigations, each with the specific goal referred to in the previous point. If they adopt this approach and respect each other’s respective remits, the parallel enquiries can proceed smoothly.

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38. Thirdly, “enquiries carried out by the House of Representatives” should not “hamper the performance of enquiries carried out by the judiciary”. This is important. The rule laid down by the law is unequivocal. To put it another way, the investigations carried out by the House or its committee and the assessments and recommendations it may make must not encroach upon those reserved for the judiciary. Nor, as a result of the public disclosure of these documents and the authority attached to the deliberations of a parliamentary body, should the enquiry committee’s report appear to prejudice the solution that the judiciary is responsible for obtaining under its remit. 39. If a competition were to ensue, the performance of the enquiry committee could be compromised. And that is without even considering the consequences that such blunders could have at the moment when the merits of the case are being examined by the judicial authorities9. 40. The enquiry committee has therefore paid close attention to the general instructions obtained by the legislator since 1996, which were not amended in 2014, i.e., in tempore non suspecto. Nor did it overlook the fact that a case had been brought before the Court of Appeal of Mons for investigation, on the initiative of the Court of Cassation, and that it involved several persons whom the committee wished to interview. 41. The hearings of the prosecutor of the King of Brussels and the public prosecutor of Mons enable the committee to outline its tasks precisely. In particular, from the evidence it had gathered, it had to sort the factual information that was given to it from the defence arguments that some witnesses were disposed to present to it.

9 By

virtue of this article of law (art. 1 paragraph 2), the accused and the potential suspects in the judicial enquiry constitute a risk when the enquiry committee is interviewing the witnesses. A witness could exploit certain questions to undermine or sabotage the legal case” (response by P. Waeterinckx to the request for an opinion on the testimony of potential suspects in a judicial enquiry, 23 June 2017).

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42. According to Article 4, paragraph 3 of the Law of 3 May 1880 on parliamentary enquiries, â&#x20AC;&#x153;the committee may also, in accordance with the organic law of 18 July 1991 on the supervision of the police and intelligence departments, instruct the P and R Standing Committees to carry out the necessary investigationsâ&#x20AC;?. Several interviews with Mr Guy Rapaille, Chair of the standing supervisory committee on intelligence and security control, and Ms Johanne Erard, Chair of the standing supervisory committee on police departments, were held in particular to discuss the results of the investigations that they had conducted, at the request of the enquiry committee, on several aspects of the cases mentioned. 43. There is no need to recall that the rule of the separation of powers must encourage the parliamentary and judicial authorities to specialize in the exercise of their respective functions and not to seek, on both sides, to conduct investigations whose results would push them beyond their respective remits as defined by the Constitution and by law. 44. The cooperation between the enquiry committee and the Belgian judicial authorities ran smoothly. It goes without saying that cooperation with foreign authorities did not run so smoothly, especially judicial proceedings were also under way in other countries and the Belgian case was seen merely as part of a much broader case that was taking up the attention of these authorities. 45. Nor does the House of Representatives have the necessary means to compel foreign witnesses to appear before it, to answer its questions and to shed light on the key aspects of the case from the outside (see above). 46. As the committee does not play a judicial role and does not intend to compete with the judicial authorities in this field, it has also taken a reserved position with regard to the counsels of the witnesses it intends to interview. The enquiry committee did not object to lawyers attending witness interviews, even in camera, and providing them with some or other piece of advice. It did not, however, agree to engage with them in a bilateral debate on how the committee was performing its tasks within the framework set out by the House of Representatives and in compliance with the constitutional and legislative provisions that govern the matter.

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6. The press 47. The enquiry committee repeatedly examined the relationship that it could or should have with the press in its various forms - newspapers, periodicals, radio, television and social media. 48. On several occasions, the ECX found that the press (especially written) on the day of its working meetings, was publishing a set of facts or documents relating directly or indirectly to the case in hand. In a democratic society, the role of the press is to inform its readers about a range of issues that concern both civil society and political society. Its role, as the European Court of Human Rights points out, is to be the “watchdog” that alerts anyone and everyone to the specifics of sensitive cases in which the behaviour of the public authorities could be criticized or challenged. The committee even invited a journalist to testify so that he would repeat before the committee the information presented in his articles concerning court cases under way in France. 49. Here again, the terms used can be misleading. A journalist’s “investigation” is neither a parliamentary enquiry nor a judicial enquiry. It abides by its own laws. It uses its own methods. It meets its own objectives. 50. The enquiry committee did not take the information published in the press at face value. It was only included in this report if it was confirmed by witnesses or substantiated by documents that the enquiry committee was able to consult. 51. The enquiry committee found that some of the information published by the press in connection with the case was inaccurate. 7. Public and in camera meetings 52. Parliamentary work is carried out in public - both in plenary and in committee meetings, including in a parliamentary enquiry committee. “Public knowledge, the safeguard of the people”, as is written on the pediment of the town hall of Verviers. The law on parliamentary enquiries addresses this concern. Article 3, paragraph 3, first sentence, lays down this first operating rule: “The committee’s meetings are open to the public”.

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53. An exception is, however, permitted by the second sentence of the same paragraph. “The enquiry committee may however decide the contrary at any time”. It does not specify why an in-camera session may be decided. It can be assumed that the enquiry committee may seek to respond in this manner at the request of the person being interviewed, who does not wish his or her remarks to be heard beyond the confines of the enquiry venue. Or that the committee itself believes that it will achieve more conclusive results in this manner. 54. Whether collected in public or in camera, the enquiry committee may use the information obtained and, where appropriate, reproduce it in its committee report. In the second case, however, the practice is that it must be presented as neutrally as possible and that the source of the information may also be protected if the committee so wishes. 55. Holding a meeting in camera does have an impact on the operation of the enquiry committee and on the behaviour of its members. A complex set of rules applies in this regard. The committee can indeed promise to respect and “preserving” the confidentiality of the information presented to the committee. If it has not done so, it can “lift the obligation of secrecy” (see article 3 of the parliamentary enquiries law of 3 May 1880). If it has, it cannot reverse that commitment. 56. The members of the House are bound by secrecy in a particular area: the one that “concerns information obtained at the committee’s non-public meetings”. They are not bound by secrecy for other information, and in particular information relating to the holding of an in-camera meeting (date, time, names and capacities of witnesses, etc.). “Any breach of this secrecy”, i.e., any disclosure of information obtained in the course of the proceedings, “shall be sanctioned in accordance with the rules of the House”10. 57. The enquiry committee has kept the number of in camera hearings to a strict minimum. As some of the work concerned the operation of the House, it considered it important to act in a transparent manner. There were 171 public hearings and 31 hearings were held in camera.

Regulations of the House of Representatives, art. 67, paragraph 1. “Information obtained in in-camera meetings is protected by an obligation of secrecy: parliamentary enquiry committees...”.

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8. Oral hearings 58. Under the terms of Article 8, paragraph 4 of the law on parliamentary enquiries witnesses are “interviewed under oath”. They are granted a “hearing”. They make a “statement”, and their statements are included in the minutes of the session. “The minutes of the testimonies are signed, either immediately or no later than fifteen days after the end of the hearing by the chairman and by the witness, after they have been read back to him or her and he or she confirms that he stands by his or her statement (paragraph 7). 59. To comply with the terms of the aforementioned law, the procedure implemented by the enquiry committee is oral. It requires the physical presence of the witness. It also requires the witness to communicate orally with the members of the committee and to answer their questions in the same way. For this reason, written testimonies are not accepted. The enquiry committee also interviewed on witness by videoconference. 60. The practice has, however, made allowances in the application of such a strict rule. At one hearing, the enquiry committee asked some witnesses to send to it a set of written documents that might be useful for it in the continuation of its work. 9. Collegiality 61. As set forth in article 2 of the law on parliamentary enquiries, the House may exercise the right granted to it by article 56 of the Constitution to “set up a committee composed of its members". 62. In practice, the parliamentary enquiry committee tends to reach the broadest possible consensus among its members, to the point of accepting dissenting opinions expressed there. However, each member of the enquiry committee remains free and responsible for his or her statements. The aim of achieving a collegial position may emerge in the long run. It can help to eliminate specific initiatives that members of the committee have embarked upon and to moderate the statements they had made in public about the work of the committee.

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10. Collaboration 63. It is customary to involve experts - usually university professors but also magistrates - in the work of a parliamentary enquiry committee. Their expertise and practice may help the committee to remain within the limits of the task it has been set, or the knowledge they may have of a particular matter can enlighten the members of the Committee as regards certain technical aspects of the case11. 11. External attempts to sabotage the work of the committee 64. Both the House, as the institution that set up the enquiry committee, and subsequently the chairman of the enquiry committee and also one of its members have, during the course of the proceedings, been the subject of a civil suit brought by one of the persons cited in the investigation who considered that they had suffered prejudice as a result. As the complaint against two committee members was similar to that made against the House, the House decided to assist them in their defence via its chairman. The court case took place in parallel with the work of the committee. 65. The enquiry committee was alerted to the possibility of negative public relations campaigns that could target it directly, or some of its members. The purpose of ‘black public relations’ is to damage the reputation of a person or organization. Certain firms have made a profession out of it. Destabilization sometimes takes the form of apparently journalistic stories that present an “alternative truth”. Deliberately harmful information may appear on foreign websites or blogs. These campaigns are at their most effective when their content is picked up by the traditional press or institutional players.

11 When

it is selecting the experts that may assist it and during its work, the enquiry committee will pay attention to the titles, capacities and activities of the persons who offer it them their assistance.

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It has also learned of a foreign firmâ&#x20AC;&#x2122;s plan to conduct a public relations campaign in favour of one of the people cited in its work, potentially supported by a press conference. The enquiry committee avoided being influenced by this incident.

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PART I. NATURALISATION AND ACQUISITION OF NATIONALITY In Part I, an inquiry was opened to examine how Messrs Patokh Chodiev and Alijan Ibragimov obtained Belgian nationality. On the basis of its findings, the inquiry committee drew conclusions and made recommendations. I. — FINDINGS 1. The naturalisation of Mr. Patokh Chodiev 1.1. Legislation in force concerning naturalization, work permits and professional cards at the time of Mr. Patokh Chodiev's request 1.1.1.Current naturalization legislation 66. Mr Patokh Chodiev and Mr Alijan Ibragimov applied for Belgian nationality on the basis of the law of 13 April 1995 revising the naturalization procedure and the Belgian Nationality Code (Code de la nationalité belge - CNB), which entered into force on 31 December 1995. The conditions of article 19 of the CNB and the procedure set out in the law of 13 April 1995 revising the naturalization procedure and the CNB must be complied with (see below). 67. For the sake of completeness and clarity, an outline of the changes made to the law up to the last amendment in 2012 is presented below. 1.1.1. (a) Legislation in force between 31 December 1995 and 30 April 200012 — Conditions for obtaining naturalization 68. Article 19 of the CNB of 28 June 1984 (as amended by the law of 6 August 1993) provides that, to obtain naturalization, the applicant must have reached the age of 18 and have had his or her principal place of residence in Belgian territory for five years (this condition of residence is reduced to three years for recognized refugees and stateless persons). However, between 1984 and 31 December 2012, applicants could be exempted from this residency requirement if they could demonstrate “genuine ties with Belgium”.

Source: Memo written by the Belgian Naturalization Department.

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69. The law does not stipulate that the principal place of residence must be covered by a legal residence permit at the time of the application being introduced as well as during the five years preceding it, and it was not until the entry into force of the miscellaneous provisions law of 27 December 2006 (I) for the requirement for a legal residence to be specifically included in the CNB (authorization of or acceptance for a residence period of more than three months as defined in the law of 15 December 1980 on access to the territory, residence and settlement and removal of aliens). In addition, the law does not require the applicant to have obtained definitive residence (permanent leave to remain or settlement). 70. The procedure is subject to a fee: a registration fee of 6,000 Belgian francs (with possible reductions) is charged and the application is only accepted if proof of payment of this registration fee is included in the file. 71. Lastly, the applicant must demonstrate “sufficient willingness to integrate” (see articles 15 and 21 of the original CBN, both in effect until 30 April 2000). The competent prosecutor must carry out an assessment of this ‘desire for integration’ and the public prosecutor has the possibility of issuing a negative opinion if this condition is not met. This condition is also common to all procedures for the acquisition of Belgian nationality (naturalization, and also declaration of nationality, option, acquisition of nationality through marriage with a Belgian, etc.). 72. Principal residence in Belgium (or, previously, genuine ties, and currently legal residence within the meaning of the law of 15 December 1980 on access to the territory, residence, settlement and removal of aliens) had to be maintained throughout the proceedings, failing which the application would lapse. — Naturalization procedure 73. The naturalization procedure is governed by the law of 13 April 1995 revising the naturalization procedure and the CNB (effective 31 December 1995). 74. This law underlies (at least implicitly) the creation of the Naturalization Department by the House of Representatives, by stipulating that naturalization requests must be addressed to the House directly (and sent to its clerk).

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75. The Act also provides that, as soon as the application is complete, the House has an obligation to forward it to the court of first instance at the place of residence of the applicant. 76. In addition, the House may ask “all authorities, and in particular the office of the public prosecutor”, to conduct an investigation into the criteria set out in section 19 and, in particular, the conditions and circumstances referred to in article 15 of the CBN, namely the existence of material personal issues (legal precedent, extremism, residence obtained by fraud, etc.) and whether the applicant is sufficiently willing to integrate (see above). 77. Moreover, and this is still the case at the present time, the House can conduct an investigation into any aspect of the case about which it wishes or wished to be informed. 78. The authorities consulted must deliver their opinions within three months, otherwise the procedure shall continue. 79. A law of 22 December 1998 (which entered into force on 1 September 1999) extends the House’s remit to include all cases of declaration of Belgian nationality, option and resumption of Belgian status that were rejected by the competent prosecutor's office, unless the applicant chooses to challenge the grounds for the refusal by taking legal action to obtain Belgian nationality before the competent court of first instance. 80. If an applicant “permits” his nationality declaration to become a request for naturalization, he or she may, at the invitation of the House, file a brief in reply. He or she is under no obligation to do so. 81. The same law of 22 December 1998 reforms the law of 13 April 1995 and designates in particular the three authorities that must be consulted for each naturalization application, namely the competent public prosecutor of first instance (the Brussels Public Prosecutor's Office if the application or declaration is lodged from abroad), the Aliens Office and State Security. These opinions concern whether or not the basic conditions are met, whether or not material personal issues are absent, and whether or not there is sufficient willingness to integrate.

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82. The Act also provides that the application for naturalization should be filed either with the municipal administration of the applicant's place of residence or directly with the House. 83. In addition, it provides for a further four-month period within which the three authorities referred to above must issue their opinion. The authorities were deemed to have issued a favourable opinion if no response was received within this period. 84. The same law introduces an article 24a, which gives the Minister of Justice the power to adopt legally binding directives concerning the terms on which the public prosecutors conduct their investigation with a view to presenting their opinions on any procedure for acquiring Belgian nationality, after consulting the panel of prosecutors general. This panel also monitors how the public prosecutorâ&#x20AC;&#x2122;s offices issue their opinions. 1.1.1. b) Legislation in force between 1 May 2000 and 31 December 2012 â&#x20AC;&#x201D;

Conditions for obtaining naturalization

85. First of all, the law of 1 March 2000, which came into force on 1 May 2000, reduces the length of the principal residence condition from five years to three for any major foreign national who requests it, and from three years to two for recognized refugees and stateless persons. Here again, the law did not expressly stipulate any requirement for legal residence for this condition of residence. 86. The same law also removes the condition of sufficient willingness to integrate for all procedures for acquiring Belgian nationality, with the result that the public prosecutor's offices could only issue negative opinions (both for naturalization and for declarations of nationality or option) where the basic conditions have not been met or if they believe that there are material personal issues (legal precedent, extremism, fraud, etc.) that they must specify in their opinion. Sufficient willingness to integrate is presumed merely by the fact that the applicant has filed a nationality application. 87. Lastly, this law also makes the naturalization procedure free of charge: the aforementioned registration fee of 6,000 Belgian francs has been removed.

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—

Naturalization procedure

88. The law of 1 March 2000 reduces the deadline for the authorities consulted (Public Prosecutor's Office, Aliens Office and State Security) to issue their opinion from four months to one month (after which these opinions are deemed favourable). 1.1.2. Applicable legislation relating to professional cards and work permits 1.1.2.1. Applicable legislation relating to professional cards and work permits 89. The legal provisions relating to the exercise by foreign nationals of independent professional activities which were in force between 1995 and 2005 are described below. 90. The granting of professional cards to foreign nationals is governed by the law of 19 February 1965 on the exercise by foreign nationals of independent professional activities. 91. The Act of 19 February 1965 is amended by: — the law of 28 June 1984 (whose Title I entered into force on 16 August 1984; Title II entered into force on 1 January 1985); —

the law of 2 February 2001 (which entered into force on 8 March 2001);

—

the law of 1 May 2006 (which came into force on 15 July 2006).

92. This legislation aims to strike a balance between the aspirations of foreign nationals who wish to exercise an independent activity in Belgium and the economic, social and cultural interests of the country. 93. The professional card introduced in 1965 constitutes prior authorization for certain foreign persons wishing to exercise an independent professional activity in Belgian territory, as a natural person or as an agent of a company or association, regardless of whether or the position is remunerated. Since 1977, nationals of a European Union Member State have been exempted from this. Further exemptions came into force on 4 March 2003. The paid nature of the work is maintained until the law of 2 February 2001.

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94. The scope of the law on professional cards, which has changed dramatically over the years, was as follows at the time of the request of Mr Patokh Chodiev and Mr Alijan Ibragimov: — any foreign national who carries out an independent, remunerated activity within the territory of the Kingdom, must have a professional card; — the law of 2 February 2001 amended the regulation as follows: any foreign national who exercises an independent professional activity within the territory of the Kingdom, either as a natural person or at an association or a de jure or de facto company, must have a professional card; — any activity that is not subject to the rules on the occupation of foreign national workers is

considered to be independent.

95. When applying for a professional card, three criteria are examined: — right of residence: if a person does not have it, he or she must apply for that right from the embassy or consulate at the same time as the professional card; — compliance with regulatory requirements, especially those relating to the activity in question (e.g. access to the profession); — the interest of the project for Belgium. This interest is appreciated in terms of the project’s economic utility, i.e. it meets an economic need, job creation, useful investment, economic benefits for companies located in Belgian territory, export openness, innovative activity or specialization. It can also be evaluated in terms of social, cultural, artistic or sporting interest.

card:

96. The King may dispense certain categories of aliens from the obligation to have a professional

— either where the requirement of a professional card is not indicated, because of the nature of the profession; — or where such dispensation is imposed on Belgium by international treaties or is recommended in the interest of reciprocity.

97. The law of 2 February 2001 amended the regulation as follows: the King may dispense certain categories of aliens from the obligation to have a professional card:

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— because of the nature of the profession; — because of the nature of the right of residence; — in compliance with international treaties or due to the existence of a reciprocal agreement, or — because of the refugee status or statelessness of foreign nationals allowed to stay or settle in the Kingdom. 98. These dispensations are granted by decree approved by the Council of Ministers. 99. The professional card is issued by the Minister for the Middle Classes or an official appointed by him. It is personal and non-transferable; it specifies in a precise manner the remunerated activity exercised or to be exercised by the holder and, possibly, the conditions to which this exercise is subject. 100. The validity of the professional card cannot exceed five years. If it is less than five years, it may be extended to that maximum. Professional cards can be renewed when they expire. 101. A foreign national who intends to renew his card or change his remunerated activity, or to change the conditions specified on his professional card, must apply for it. 102. An Economic Enquiry Council for Foreigners has been set up. The Minister for the Middle Classes may bring before this Council a foreign holder of a professional card who: — has lent or sold it; — has used the services of one or more foreign nationals who do not have a professional card, itinerant merchant’s card or work permit and are not dispensed from having one; — has exercised a paid independent activity other than that specified on their professional card or does not meet the conditions for issuance of this card; — is in breach of the legal and regulatory requirements that govern the activity that he or she exercises or has not fulfilled his or her tax obligations or those imposed by company legislation;

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— has been definitively convicted of a crime, whether in connection with the exercise of his paid activity or not. 103. The Council may: — issue a warning; — order the foreign national to cease their activity; — order the closure of the establishment he or she is operating; — definitely withdraw the professional card. 104. On the basis of the law of 28 June 1984, admissible applications may only be rejected after the advice of the Economic Enquiry Council for Foreigners has been sought. The applicant must be interviewed, or at the least called by the Council. Decisions that disregard the advice of the Council can only be taken by the Minister himself. 105. The law gave rise to numerous enforcement orders. Among the most important, it is worth noting: 1) the royal decree of 11 December 1980, exempting certain categories of foreign nationals from the obligation to hold a professional card for the exercise of an independent professional activity; 2) the royal decree of 2 August 1985 implementing the law of 19 February 1965 on the exercise by foreign nationals of independent professional activities: — an application for a professional card is to be submitted via the municipal administration (if resident in Belgium) or to the Belgian diplomatic or consular representative (if resident abroad) - a notice has already been issued by the municipal administration or by the diplomatic or consular representative; — the demand specifies the nature and location of the activity; — the applicant must pay a fee;

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— to be admissible, the application must be made via a prescribed form and contain: • an extract of the applicant’s criminal record (application in Belgium) or equivalent document if resident abroad; • for regulated activities: a document proving that he or she meets the conditions prescribed for the exercise of the regulated profession; • a medical certificate; — the professional card is signed by the Minister for the Middle Classes or an official appointed by him; — if the applicant is abroad, the professional card is sent to the embassy or consulate, which then issues it to the applicant; 3) the royal decree of 3 February 2003, exempting certain categories of foreign nationals from the obligation to hold a professional card for the exercise of an independent professional activity. 1.1.2.2. Applicable legislation relating to obtaining work permits 106. Royal Decree No. 34 of 20 July 1967 on the occupation of workers of foreign nationality is in force. In accordance with Article 12 of said Order, the King laid down the criteria and conditions of the granting, validity, extension, renewal, refusal and withdrawal of work permits: on this topic see articles 12 to 16 of the royal decree of 6 November 1967 on the conditions for granting and withdrawing occupational authorizations and work permits for foreign workers. 107. This numbered Royal Decree is replaced by the law of 30 April 1999 on the occupation of foreign workers (Moniteur Belge) of 21 May 1999 which entered into force on 31 May 1999) and by the Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 on the occupation of foreign workers (Moniteur Belge of 26 June 1999, which entered into force on 1 July 1999), as amended by the Royal Decree of 6 February 2003 (Moniteur Belge of 27 February 2003, which entered into force on 1 April 2003).

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108. As the provisions of the law of 30 April 1999 and its implementing orders do not apply to cases to be examined by the enquiry committee, they are not commented on hereinafter. 109. Under the provisions of Royal Decree No. 34, foreign workers must have a valid work permit to work in Belgium. 110. Article 5 of Royal Decree No. 34 and Article 12 of the Royal Decree of 6 November 1967 distinguish between three types of work permit: 1° indefinite term work permits valid for all salaried occupations, referred to as work permit A; 2° work permits of a specified duration, limited to either an employer or an activity sector, referred to as work permit B; 3° work permits of a specified duration valid for occupations in which the services of the worker are not usually used by a single employer, referred to as work permit C. 111. Work permit A is granted: 1° to workers who can demonstrate five years’ work during the period immediately preceding the date of application, duly covered by a work permit and performed during a legal and uninterrupted stay. This period is shortened by one year if the worker's spouse or children are legally residing with him or her in Belgium. Residence shall be deemed to be uninterrupted if the gap between two successive periods of residence does not exceed one year or if the absence relates to military service obligations, provided that the worker has returned to Belgium within sixty days of completing the period of service. Periods of complete incapacity for work resulting from occupational illness, an accident at work or an accident while commuting while the person concerned is legally employed by an employer in Belgium, shall be treated as periods of work;

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2° to persons who demonstrate five years’ legal and uninterrupted residence in Belgium during the period immediately preceding the date of application; 3° to the spouse of a worker who is eligible for work permit A, provided that they live under the same roof; 4° to the legitimate or adoptive children of workers eligible for a work permit, provided that these children are single and under 21 years of age and live under the same roof as the worker and his spouse in Belgium; 5° to the natural, adoptive or legitimate children of a worker eligible for work permit A, provided that these children are single and under 21 years of age, live under the same roof as the worker and the worker is single, widowed or divorced; 6° to persons referred to in 3° and 4° where the worker is legally resident in Belgium and is eligible for work permit A at the time of his death; (7° …) 8° to persons who meet the legal conditions for acquiring Belgian nationality by option, or for resuming it; 9° to persons who can invoke article 3 of the law of 5 February 1947 governing the status of foreign political prisoners; (10°…). 112. Work permits B and C shall be granted for a maximum period of twelve months. The Minister with responsibility for employment may extend the validity of these work permits to twenty-four months. He or she may also extend the validity period of work permit B in favour of workers who, when the work permit they hold expires, are in receipt of either sickness and disability insurance, insurance covering accidents at work or while commuting, or unemployment insurance. Work permit C is issued solely for the exercise of one of the following trades and professions:

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1° port workers who exercise the professions of docker, foreman, marker, weigher, measurer, shore-ganger, boiler cleaner, careen painter, rigger, sorter, classer and car loader; 2° housekeepers; 3° hotel sector ancillaries; 4° home caregivers; 5° jockeys; 6° insurance salespersons not bound to a company by an exclusive contract; 7° home workers; 8° diamond trade workers; 9° performing artists and musicians for whom performing is not their principal profession; 10° film production technicians. Workers with a fixed-term B or C work permit must work within the industry for which they obtained their first work permit. The Minister with responsibility for employment may grant exemptions to the provisions of this article for economic or social reasons. 1.2. Naturalization procedure in the House of Representatives — Operation of the Naturalization Department of the House of Representatives.

113. Since 1 January 1996, naturalization applications have been submitted to the House of Representatives (see point 1.1.1(a) above). These requests are made by means of a completed questionnaire which is sent to the Clerk of the House of Representatives.13 The applicant must if so requested attach an extract of his birth certificate, a copy of his residence authorization, an extract from the registers of the population or of foreign nationals and a receipt for payment of the registration fee. The Naturalization Department then prepares a naturalization application file. Once the department considers that the administrative file is complete, it requests three opinions, from the Aliens Office, State Security and the Prosecutor's Office in the applicant's place of residence, and an extract from their criminal record. 114. Applications for which opinions have already been received are processed in chronological order. Only members of parliament who are members of the Naturalization committee can, if they wish, consult individual files at the committee’s secretariat.14

13 Interview 14 Ibid.

of Ms Greta Craps, 11 January 2017, CRIV 54 K001.

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115. The opinion given by the Aliens Office15 on the basis of the CNB is limited to disclosing the naturalization candidate's residential status. The Aliens Office issues this opinion at the request of the House, the House of Commons or the Public Prosecutor's Office. 116. Even if pursuant to article 21 of the CBN, State Security is supposed to issue an opinion with regard to the naturalization procedure16, in practice it does not do so. State Security limits its role to providing the information it considers relevant. This information must then be reviewed by the Naturalization Department. State Security has three months in which to respond to the House’s Naturalization Department. 117. For each naturalization application, the competent prosecutor’s office automatically receives a copy of the opinion of the Aliens Office and State Security. The opinion of the prosecutor's office concerns whether or not the person is involved in criminal proceedings and on his or her willingness to integrate. 118. The above-mentioned law of 13 April 1995 stipulates that the time limit for issuing an opinion is three months. If no opinion is issued within that period, the opinion is deemed to be favourable. In practice, the Naturalization Department waits for formal opinions. This is why reminders are sent when necessary. — The precedent applied by the Naturalization Department

119. On 29 April 199717, the Naturalization Committee ruled on its precedent and laid down the procedures for monitoring the various cases. 120. Naturalization applications for which the opinions of the authorities consulted are favourable are not submitted to the committee and are considered to have been approved automatically. 121. Other applications for which at least one opinion is unfavourable, and those that include a specific feature (e.g. a request for exemption from the residence condition), are shared between the members of the committee, who decide individually on each case.

Interview of Mr Freddy Roosemont, 18 January 2017, CRIV 54 K003. Interview of Ms Greta Craps, 11 January 2017, CRIV 54 K001, p. 10, and Report on activities 2012 of the Standing Committee R, p. 7. 17 Memo G/C/N/JV/fh-2700N to the House Naturalization Department. 15 16

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122. The decision can be either: — an acceptance; — an adjournment, usually of one or two years, followed by further investigation, or — a rejection, rejection decisions being submitted to the Chairman and then notified to the

committee 15 days before the next meeting for confirmation.

123. The committee has decided to reject applications submitted by: a) persons convicted of: — drug trafficking; — pimping; — paedophilia; — serious delinquency (e.g., violent robbery); b) persons participating in or having participated in extremist groups (e.g. fundamentalist movements, terrorists, mafia, etc.); c) foreign/foreign students whose stay is limited to the duration of their studies, except those who

came to Belgium around 10 years ago, possibly following their parents who were doing higher academic studies in our country, having married a Belgian, possibly having children in Belgium for whom all opinions are positive (public prosecutor’s office or other), and who may have scientific value such that it is in the country's interest to grant them nationality. In this case, the granting of naturalization should not be objected to; d) persons whose stay is limited to the duration of their assignment (diplomats, embassy staff of a nationality other than that of the embassy); e) bigamy; if there are doubts, the case is referred to the committee; f) applicants who have entered into a sham marriage; g) the applicants whose application has been adjourned several times with no obvious improvement in their willingness to integrate.

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124. The committee decided to adjourn: a) applications containing several concrete factors which shed doubt on the applicant’s actual

willingness to integrate: insufficient knowledge of one of the national languages, little or no contact with Belgian nationals, lack of interest in his application, being motivated primarily to obtain welfare benefits, etc. b) applications for persons convicted of or subject to judicial investigation or fines who do not fall into category 1. In some cases and if the facts are incontrovertible, the application is adjourned until rehabilitation. 125. As regards driving offences, the application will only be adjourned if the incidents are recent and sufficiently serious (driving without insurance, hit and run, drunk driving) or repeated over a short period of time.

126. The objections of the prosecutor's office to the avoiding of military service are no longer accepted as a cause of adjournment; the same applies for being unemployed or disabled or not having completed studies and obtaining a diploma or degree. 127. However, it would be appropriate to examine whether the applicant is seeking work and has not been signing on at the social security office (CPAS) or jobcentre since arriving in the country (not that this is a cause for exclusion). 128. Maintaining the religious practices of one’s country of origin is not an obstacle to integration. However, an involvement in fundamentalist, terrorist, and intolerant movements hostile to integration and Western society is evidence of non-integration and results in the rejection of the application. 129. The applicant's continuing observation of the customs of his country of origin, including dress customs, must be assessed in a broader context and may be one of a number of criteria (the desire for intellectual integration, respect for democratic values) when assessing willingness to integrate. 130. Nor is an interest in political issues in one’s country of origin an obstacle to integration, as it does not necessarily involve participation in terrorist movements or in intolerant political movements hostile to integration and western society, which is also evidence of non-integration.

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131. Assimilation of the residence condition is granted if the applicant proves that he/she has genuine ties with Belgium during the requisite period. These are: — persons residing abroad, one of whose parents or grandparents is a Belgian national; — persons who have resided in Belgium for the requisite period but no longer live there for family

or professional reasons, or

— persons who have not yet been resident in Belgium for the requisite period but previously had genuine ties with Belgium.

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â&#x20AC;&#x201D; Change in the number of applications processed the Naturalization Department

Year 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Total

Applications received 10488 10693 12279 12302 18578 11128 11950 11680 12200 14020 13560 13866 12618 12752 13437 13104 18731 2573 113 71 99 175 226417

Approved 2472 7494 10001 7169 11543 9352 6207 5906 5258 6802 4591 7191 10194 2121 3958 4208 4838 8122 3305 2663 3505 3756 130656

Rejected 118 682 829 1128 1968 768 2885 2088 2449 3310 2205 1022 4616 1473 1779 1596 4461 3440 1748 1385 1488 1995 43433

1.3. The case of Mr Patokh Chodiev 1.3.1. The processing of Mr Patokh Chodiev's naturalization application by the Naturalization Committee, State Security and the Aliens Office 132. Mr Patokh Chodiev arrived in Belgium on 1 September 1991 with a temporary residence permit, after obtaining a work permit B, valid from 18 August 1991 until 17 August 1992. 133. On 7 April 1992, he applied for a professional card at the Belgian Embassy in Moscow. The professional card issued was valid until 17 August 1993, but was subsequently extended until August 17, 1996.18 He finally received a work permit A on 24 July 1996 (and therefore an indefinite work permit), on the basis of which an indefinite residence permit was granted

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134. Mr Patokh Chodiev moved to Waterloo on 4 February 1994, where the police carried out a check on his home.19 135. On 14 March 1996, Mr Patokh Chodiev filed an application for naturalization with the House of Representatives.20 The Naturalization Department then referred the matter to the Aliens Office and the Nivelles Public Prosecutor's Office and sent State Security a request for information. He was sent their replies in April 1996. 136. On 17 April 1996, the central criminal records department informed the House that Mr Patokh Chodiev did not have a criminal record. 137. On 24 April 1996, State Security informed the House that it had “Nothing To Report/Niets te Vermelden” in connection with Mr Patokh Chodiev’s naturalization application. 138. According to Standing Committee R, it is quite clear that as early as 1994-95-96, State Security had identified a link between the general problem of the Russian mafia and Mr Patokh Chodiev, even though the documents referred to did not refer to him directly.21 Mr Guy Rapaille, the current Chairman of Standing Committee R, finds it surprising that State Security issued a “Nothing To Report/Niets te Vermelden” opinion on 24 April 1996, given the information available on Mr Patokh Chodiev at that time. 139. The Director of State Security Mr Jaak Raes has offered two theories as to why this “Nothing to Report/Niets te Vermelden” opinion was issued over twenty years ago22.

18—Interview

of Mr Freddy Roosemont, 18 January 2017, CRIV 54 K003. —Memo of 23 January 2017 by Mr Freddy Roosemont, Aliens Office, to the parliamentary enquiry committee. 19 Interview of Mr Michel Vandewalle, 25 January 2017, CRIV 54 K005, p. 6 and p. 13. 20 Memo of 20 December 2016 sent to the parliamentary enquiry committee by the Naturalization Department. 21 Interview of Mr Guy Rapaille, 25 January 2017, CRIV 54 K004, p. 3. 22 Interview of Mr Jaak Raes, 15 February 2017, CRIV 54 K009, p. 3.

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140. The first theory is that at the time, the information was not considered sufficiently solid to be communicated. It indicates that where State Security gives a negative opinion, it must where appropriate be able to explain this opinion to the person concerned and to substantiate it in the event of any subsequent administrative action. 141. The second theory is that given that the database was unable to perform phonetic searches at that time, it was not possible to link the various spellings of the name Chodiev, namely Chadiev and Chidiev. It is therefore possible that a name different from the one recorded was entered and that the file was missed. If this is the case, it is quite possible that a “Nothing to Report/Niets te Vermelden” opinion could have been issued at one time. 142. This version is corroborated by the remarks of the former senior inspector of the “organized crime” section of State Security, noted by Standing Committee R.23 She explained that in 1998, she was unhappy that Mr Patokh Chodiev had obtained Belgian nationality while State Security held information that could have resulted in his naturalization application being rejected. She confirmed that at the time there were two paper files, one for Patokh Chodiev and the other for a Patakh Chadiev. According to her, the colleague who signed off the “Nothing to Report/Niets Te Vermelden” opinion had probably consulted the file for Patakh Chadiev, which was empty. 143. In addition, Mr Jaak Raes also stated that there had been an enormous number of naturalization applications in the past. According to Mr Raes, in 1996 there were around 50,000 requests for information from State Security related to nationality applications.24 144. At his interview Mr Claude Eerdekens indicated, admitting that it was a personal impression that was perhaps not objective, that he did not rule out that State Security “in some cases did not know how to gather information and signed off “Nothing to Report/Niets te Vermelden” opinions because it did not have the resources to do its job, or categorized cases as “Nothing to Report/Niets te Vermelden” through fear that the subject would flee, as it may have been tracking the person”.25

Interview of Mr Guy Rapaille, 15 February 2017, CRIV54 K008, p. 2 and p. 7. of Mr Jaak Raes, 15 February 2017, CRIV 54 K009, p. 7. 25 Interview of Mr Claude Eerdekens, 11 January 2017, CRIV 54 K 001, p. 28. 23

24 Interview

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145. Whatever the reason for signing off this “Nothing to Report/Niets te Vermelden” opinion, the former deputy head of State Security, Mr Bart Van Lijsebeth, and the current director, Mr Jaak Raes, both told the committee that they had not detected any indication of pressure, collusion or corruption in the naturalization application26. Mr Claude Eerdekens expressed the same opinion, indicating that there was “never any pressure”. I am convinced that there was not. If that had been the case, Ms Craps would have told me.” He also stated that Tractebel had not exerted any pressure either.27 Following the breakup of the Soviet Union, with the creation of the Commonwealth of Independent States, various economic actors showed a great deal of interest in Kazakhstan, a rich country whose ambition was to industrialize fairly quickly. Hence the electricity requirements and the prospect for Tractebel of developing its business in Kazakhstan.28 It is in this context that Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch appeared as ideal interlocutors, as a group of “well-connected local partners”.29 In 1994-1995, Tractebel thus decided to invest $250 million, firstly in Uralsk near the Russian border, and then to provide Almaty province with electricity supplies. It is precisely in connection with this second project that Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch offered their services to Tractebel, both in a consulting role to advise the Belgian company on Kazakhstan’s legal, economic and technical framework (due diligence) for the project and to act as a minority partner by “ensuring political protection” for the period necessary for developing it.30

Interview de Mr Bart Van Lijsebeth, 8 March 2017, CRIV 54 K 013, p. 3, an interview of Mr Jaak Raes, 15 February 2017, CRIV 54 K009, p. 16. 27 Interview de Mr Claude Eerdekens, 11 January 2017, CRIV54 K 001, p. 23. 28 Ibid. 29 Ibid. 30 Ibid. 26

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146. On 9 October 1996 the Aliens Office issued a favourable opinion. 147. When forming its opinion on the naturalization application of Mr Patokh Chodiev, the Nivelles prosecutor's office sought only to know whether Mr Patokh Chodiev was the subject of ongoing judicial enquiries within his district. On 7 March 1997, the Nivelles prosecutor's office issued a favourable opinion, even though in 1996, investigating judge Françoise Roggen had initiated an investigation into Mr Patokh Chodiev, among others, in connection with a possible money laundering operation related to suspicious real estate transactions in Brussels. According to the public prosecutor Jean-Claude Elslander, the Nivelles prosecutor's office was not informed of this, because at the time the public prosecutor's office did not have access to information relating to other districts. According to Mr Jean-Claude Elslander, this only became possible when the national database was set up in 2010.31 148. In accordance with the practice and precedent of the Naturalization Committee in force at the time (see above), officials assisting House members on the Naturalization Committee obtained replies from the Aliens Office, State Security, the public prosecutor's office and the central criminal records department. If all of this information was favourable, the Naturalization Department issued a favourable opinion which was forwarded to the rapporteur Member. In the case of Mr Patokh Chodiev’s naturalization application, the positive opinion of the naturalization departments was issued on 28 April 1997. 149. On 16 May 1997, Mr Serge Kubla, neighbour of Mr Patokh Chodiev, Mayor of Waterloo and member of the Walloon Parliament, sent a letter concerning Mr Patokh Chodiev to the Chairman of the Committee, Mr Claude Eerdekens. This letter is included in the file: “I must absolutely insist on putting in a good word for Mr Patokh Chodiev. According to the departments, his application may be lodged on 27 May. I would be very grateful if you could submit it on that date.”32

31 32

Interview of Mr Jean-Claude Elslander, 18 January 2017, CRIV54 K003, p. 44 and p. 50. Interview of Mr Claude Eerdekens, 18 January 2017, CRIV 54 K003, p. 25.

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150. At his interview, Mr Serge Kubla33 indicated that he had written the letter as a favour to Mr Patokh Chodiev, who had told him that he had applied for naturalization and with whom he was on neighbourly terms. He added that “if I had known what I know today, my attitude would certainly have been considerably more circumspect. But at the time there was nothing that led me to believe that I should keep my distance from my neighbour.” Mr Claude Eerdekens34 reported that at the time he was inundated with requests to intervene in naturalization applications. These requests emanated both from persons that had submitted applications and from parliamentary colleagues, ambassadors, priests, sports club leaders and charity chairmen, and from civil society. With regard to his intervention, he asked: “Did these interventions have any impact? To be honest, none at all! I felt I had to respond out of courtesy, regardless of who was involved”35. He added, in relation to the letter sent by Mr Serge Kubla: “In 1997, all opinions were favourable. That is what I read in Le Soir today: “All opinions are favourable.” Based on the Committee's precedent, it must have been granted automatically, no questions asked”36. 151. On 27 May 1997, the Naturalization committee issued a favourable opinion on Mr Patokh Chodiev’s naturalization application. The House of Representatives approved his naturalization on 18 June 1997. This was published in the Moniteur Belge on 13 August 1997.37 1.3.2 The processing of Mr Patokh Chodiev's naturalization application by the Nivelles prosecutor's office and the Waterloo police 152. On 19 November 1996, the Nivelles prosecutor's office sent the local Waterloo police a list of questions in connection with Mr Patokh Chodiev’s naturalization application. On 10 December 1996 the Assistant Commissioner of the Waterloo Police,

33 Interview

of Mr Serge Kubla, 8 March 1017, CRIV 54 K012, p. 2 and p. 3. Interview of Mr Claude Eerdekens, 11 January 2017, CRIV 54 K001, p. 22 to p. 24. 35 Interview of Mr Claude Eerdekens, 11 January 2017, p. 22. 36 Ibid., p. 31. 37 Memo of 20 December 2016 sent to the parliamentary enquiry committee by the Naturalization Department. 34

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now deceased, issued a favourable opinion.38 The list of questions concerning the naturalization application was returned to the Nivelles prosecutor’s office the next day.39 153. On 6 February 2002, in an article entitled “Patokh Chodiev, een speciale snel-Belg”, two journalists from De Morgen working on the Tractebel case reported two conflicting reports drafted by the Waterloo police in connection with the naturalization of Mr Patokh Chodiev. 154. The enquiry committee has read these two reports and notes that: — the first report, on which the date and author's name have been redacted, may have been written by a police sergeant. It says that “given the information received from State Security concerning the alleged links of the person concerned with the Russian mafia, and in view of the threats that the person concerned may have received, we suggest delaying his naturalization application while further investigations are carried out.” The front of this report indicates that it was drawn up following an apostille from the King’s prosecutor’s office of Nivelles on 20 December 1996; — the second report may have been drafted on 8 January 1997 by police commissioner

Vandewalle, who claimed to have met Mr Patokh Chodiev, who “seemed perfectly integrated in our society. He speaks fluent French and has professional ties to our country. He is not known to our intelligence departments and is moreover well-regarded by his neighbours. We can only issue a positive response to his request for naturalization.”

155. Following the publication of this article, Senator Frans Lozie asked Standing Committee P, in a letter dated 11 April 2002 to verify whether two reports had been drafted, the second with the aim of improving the first in order to grant naturalization to Mr Patokh Chodiev. Standing Committee P investigated the matter. The documents for this inquiry were forwarded to the parliamentary enquiry committee.40 As part of this enquiry Mr Michel Vandewalle was interviewed on 23 April 2002. During his interview he indicated that he had not drawn up any reports in relation to Mr Patokh Chodiev's naturalization file, that he had in any case never met him and that the report of 8 January 1997 is a fake. He indicated that following searches of the archives, it appears that the police intervened following an apostille of the 1st alternate for the King’s prosecutor of Nivelles, Yves de Prelle de la Nieppe, entered on 26 November 1996 and released on 11 December 1996. In addition, during his interview, he submitted a copy of the full report sent to the prosecutor's office by the assistant police commissioner who handled the case, together with the relevant handwritten work sheet that he drafted.

Interview of Mr Jean-Claude Elslander, 18 January 2017, CRIV54 K003. Interview if Mr André Vandoren, 1 February 2017, CRIV 54 K007. 40 Report of Standing Committee P sent to the parliamentary enquiry committee on 23 January 2017. 38 39

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156. At the end of this enquiry, Standing Committee P ruled at its plenary meeting on 6 May 2002 that commissioner Vandewalle was absolved of all blame. 157. Mr Michel Vandewalle was interviewed by the parliamentary enquiry committee on 25 January 201741. At that interview he indicated that he had not drafted the document of 8 January 1997. Moreover, he cast doubts on the fact that information from State Security could have been communicated to a police sergeant. The sergeant confirmed that he had seen this information on a document from State Security and had transcribed it in a report.42 He was unable to produce a copy of the report. 158. On 9 February 2017 the parliamentary enquiry committee requested Standing Committee P to investigate this matter. This report was presented to the enquiry committee on 8 March 2017.43 Following a thorough review of the reports and their content, Standing Committee P expressed serious doubts as to the authenticity of these two reports. Standing Committee P, on the other hand, found the handwritten version of the opinion of 10 December 1996, which mentions Mr Patokh Chodiev’s knowledge of French. The typed report states that Mr Patokh Chodiev “struggled” to speak French but understood it “adequately”. In the handwritten version, his command of French is merely described as “adequate”.44

Interview of Mr Michel Vandewalle, 25 January 2017, CRIV 54 K005. Interview of Ms Johanna Erard, Mr Jean-François Kayser and Mr Olivier Hastir, 8 March 2017, CRIV 54 K012, p. 11. 43 Interview of Ms Johanna Erard, Mr Jean-François Kayser and Mr Olivier Hastir, 8 March 2017, CRIV 54 K 012. 44 Interview of Ms Johanna Erard, Mr Jean-François Kayser and Mr Olivier Hastir, 8 March 2017, CRIV 54K 012. 41 42

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159. These two dubious reports were also sent in 2012 by an anonymous informant to Mr Walter De Smedt, adviser to Standing Committee R, together with Senator Lozie's letter and Standing Committee P's response.45 Mr De Smedt deposited them in the enquiry file without mentioning them to his colleagues. These documents have never been submitted to Standing Committee R.46 160. The enquiry committee learned that the judiciary had in its possession a memo from State Security drafted in 1999, containing information obtained from a source that the Kazakh authorities may have evidence of the payment of funds by Mr Patokh Chodiev to Mr Serge Kubla. This information was conditional, with no further comment on either the origin or the value of this information. The federal prosecutor told the enquiry committee that the judicial enquiry examined by the federal prosecutor's office contained no evidence of financial transactions between Mr Patokh Chodiev and Mr Serge Kubla in 1999. 2. The acquisition of Belgian nationality by Mr Alijan Ibragimov 2.1 Legislation in force concerning naturalization, declaration of nationality and the granting of professional cards at the time of the applications lodged by Mr. Alijan Ibragimov 2.1.1. Current naturalization legislation 161. In this instance we refer to the legislation in force at the time of Mr Patokh Chodiev's application (see point 1.1.1 above). Mr Alijan Ibragimov submitted his application on 21 March 1997. The House of Representativesâ&#x20AC;&#x2122; Naturalization Committee rejected it on 25 November 1998. This decision was confirmed on 17 December 1998 by the plenary meeting of the House. 162. On 20 December 2004, Mr Alijan Ibragimov initiated the procedure for acquiring nationality by declaration of nationality before the Civil Registry Officer.

45 46

Interview of Mr Guy Rapaille, 25 January 2017, CRIV 54K 004. Interview of Mr Guy Rapaille, 15 February 2017, CRIV 54K 008.

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2.1.2. Procedure and conditions for the acquisition of Belgian nationality by declaration of nationality before a Civil Registry Officer, as applicable between 1995 and 200647 — Insertion of this procedure in the Belgian Nationality Code by law of 13 June 1991

163. The acquisition of Belgian nationality by declaration of nationality before the civil registration officer was introduced in the Belgian Nationality Code, in Article 12a, and by the law of 13 June 1991 (Moniteur Belge of 3 September 1991, effective January 1, 1992). 164. The 1991 law added the procedure for declaring nationality to the procedures for acquiring Belgian nationality by a major, which had been in the Belgian Nationality Code since it was drafted in 1984. 165. The other existing procedures are: — acquisition of Belgian nationality by option (articles 13 to 15 of the CNB); — acquisition of Belgian nationality by the foreign spouse of a Belgian (article 16 of the CNB); — acquisition of Belgian nationality by having Belgian status (article 17 of the CNB); — acquisition of Belgian nationality by naturalization (articles 18 to 21 of the CNB). 166. The acquisition of Belgian nationality by declaration of nationality before the civil registration officer was originally open only to a limited number of persons. The foreign national must have been born in Belgium and have had his principal residence there since birth. He may then acquire Belgian nationality between his 18th and 30th years by making a declaration of nationality. 167. This declaration is made before the civil registry officer, who immediately sends a copy of the declaration to the prosecutor's office of the court of first instance, who acknowledges having received it immediately.

Source: Memo by Ms Jennifer Schira, SPF Justice, hearing of 18 January 2017, CRIV 54K 002.

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168. Within two months of this acknowledgement, the public prosecutor may object to the granting of Belgian nationality if there is an obstacle as a result of serious personal actions. In this case, the objection deed together with an explanation is sent to the civil registry officer and by recorded delivery letter to the person concerned. After interviewing or calling the person concerned, the court of first instance rules on the merits of the objection. The person concerned is notified of its decision by the public prosecutor. An appeal may be filed within fifteen days. 169. If the public prosecutor does not see the need to object to the granting of nationality, he sends a ‘no objection’ certificate to the civil registry officer. The declaration shall be entered immediately in the civil status registers. 170. If, at the end of the two-month period, no objection or no objection certificate has been sent to the civil registry officer, the declaration shall be registered automatically. — Change introduced by the law of 22 December 1998

171. The Law of 22 December 1998 (Moniteur Belge of 6 June 1999, which entered into force on 1 September 1999) made a minor change to the procedure for declaring nationality. 172. In terms of terminology, the public prosecutor no longer drafts a deed of objection to the granting of nationality, but issues either a negative opinion on the granting of nationality or sends the civil registry officer a certificate confirming the absence of a negative opinion. 173. For the rest, taking into account the changes made to the naturalization procedure (following the revision of the Constitution of 1993-1994 (reform of the bicameral system), naturalization has become the exclusive remit of the House of Representatives, governed by the law of 13 April 199548), the law of 1998 provides that in the event of a negative opinion, if the person concerned does not refer the matter to the court of first instance, the civil status officer shall send his file to the House of Representatives with a view to “transforming” his declaration of nationality into a naturalization application.

Moniteur Belge, 10 June 1995, which entered into force on 31 December 1995.

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— Change introduced by the law of 1 March 2000

174. A material amendment of Article 12a of the Belgian Nationality Code was introduced by the law of 1 March 2000 (Moniteur Belge of 6 April 2000, which entered into force on 1 May 2000). The possibility of acquiring Belgian nationality by declaration is open to a broader category of persons. 175. Provided they are age 18 or over, the following may now acquire Belgian nationality by making a declaration of nationality before the civil registration officer: — foreign nationals who were born in Belgium and have lived here since birth. — foreign nationals born abroad, one of whose parents has Belgian nationality at the time of the declaration; — A foreign national who has had his principal place of residence in Belgium for at least seven years and who, at the time of the declaration, is permitted or authorized to stay in the Kingdom indefinitely or is authorized to move here. 176. The period granted to the public prosecutor to issue a negative opinion also reduces from the previous two months to one month. It will then be further amended by the law of 27 December 2006 (Moniteur Belge of 28 December 2006, in force on 7 January 2007) to four months, as at present. 2.1.3. Legislation in force on professional cards at the time of Mr. Alijan Ibragimov's request. 177. On 10 July 1997, Mr Alijan Ibragimov obtained a professional card in accordance with the provisions of the law of 19 February 1965 on the exercise by foreign nationals of independent professional activities (see point 1.1.2.1. above). 2.2. The case of Mr Alijan Ibragimov 178. At the time of the events examined by the enquiry committee, the Ibragimov family was living in the commune of Braine-l'Alleud.

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179. Mr Alijan Ibragimov initiated two procedures for obtaining Belgian nationality. The first - an application for naturalization - did not have the expected result, unlike the second - a declaration of nationality made before the civil registry officer. 2.2.1. Failed naturalization attempt of Mr. Alijan Ibragimov 180. On 30 January 1997, Mr Alijan Ibragimov, bearing a Kazakh passport, arrived in Belgium for the first time and was granted a 90-day visa.49 181. On 10 February 1997, a declaration of arrival was issued, valid until 30 April 1997.50 182. On 28 April 1997, Mr Alijan Ibragimov applied for a residence permit.51 183. Mr Alijan Ibragimov’s naturalization application dated 21 March 1997 was submitted on 30 April 1997 through Mr Philippe Rozenberg, Member of Parliament for the Brussels Region and the French Community. Seven letters of recommendation were enclosed, including those of Mr Nicolas Atherinos, Senior Vice President of Tractebel, and Mr Daniel Deroux, Chief Executive Officer of Tractebel. This letter of recommendation is dated 7 April 1997 and concerns the issuance of a residence permit and a professional card.52 184. On 5 June 1997, Mr Alijan Ibragimov was served an order to leave the country but no further action was taken because he had already applied for a residence permit (on April 28, 1997, see above).53 185. On 16 June 1997 Mr Alijan Ibragimov and Tractebel entered into a consultancy agreement. This agreement had a condition precedent: Mr Alijan Ibragimov had to obtain a professional card by 30 November 1997 at the latest. Mr Daniel Deroux, former CEO of Tractebel, said it was possible that this agreement was fake54: “I tell you: my signature appears on numerous documents which I never signed.

Interview of Mr M. Bruno Bulthé, 8 March 2017, CRIV 54 K013, p. 3. Ibid. 51 Ibid. 52 Interview of Mr Daniel Deroux and Mr Philippe Bodson, 22 February 2017, CRIV 54 K011, p. 10 and the naturalization application of Mr Alijan Ibragimov. 53 Interview of Mr Bruno Bulthé, 8 March 2017, CRIV 54 K013, p. 3. 54 Interview of Mr Daniel Deroux and Mr Philippe Bodson, 22 February 2017, CRIV 54 K011, p. 11 to p. 13. 49 50

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Maybe it is a fake... I have unearthed numerous fakes in this case”. 186. On 17 June 1997, the investigating judge of Brussels, Damien Vandermeersch opened an investigation into Mr Philippe Rozenberg in connection with acts of passive corruption.55 The starting point of the case was an anonymous source, which sent the Judiciary four documents, mainly concerning Mr Philippe Rozenberg.56 Mr Philippe Rozenberg and others in his circle, with access to relatively substantial funds, were renowned for obtaining favours for persons from the former USSR.57 One of the documents found in this investigation, dated 19 December 1996, confirms that Mr Alijan Ibragimov gave Mr Eric Van de Weghe two million old Belgian francs, for the benefit of member of parliament Mr Philippe Rozenberg. In January 1997, Mr Philippe Rozenberg sent a letter to Mr Alijan Ibragimov in which he said that he would do everything in his powers to “ensure that you are successful in your request for Belgian nationality”.58 Judicial case 162/97 was closed after two years, after an international rogatory committee, and released for all intents and purposes during the second half of 1999. The investigating judge Damien Vandermeersch accused Mr Philippe Rozenberg of passive corruption. According to Damien Vandermeersch, “we were made to wait for the office of the prosecutor’s case” as it “did not arrive until January 2004.”59 Mr Damien Vandermeersch put this long delay down to the priorities applied by the public prosecutor's office: “When you have a lot of cases, it is sometimes easier to take the simpler and more direct cases, where there is less to discuss”.60 In this instance, Mr Damien Vandermeersch noted that this file was large and involved a complex legal issue.

Interview of Mr Damien Vandermeersch, 22 February 2017, CRIV 54 K011, p. 1.

56 Ibid.

57 Interview

of Mr Benoît Dufour, 22 February 2017, CRIV 54 K010, p. 4. of Mr Benoît Dufour, 22 February 2017, CRIV 54 K010, p. 7. 59 Interview of Mr Damien Vandermeersch, 22 February 2017, CRIV 54 K011, p. 4. 60 Interview of Mr Damien Vandermeersch, 22 February 2017, CRIV 54 K011, p. 5. 58 Interview

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The case was time-barred in 2008.61 187. On 2 July 1997, Mr Alijan Ibragimov's application for a residence permit was declared inadmissible and Mr Alijan Ibragimov was again ordered to leave the country.62 188. On 9 July 1997 the Aliens Office issued a Mr Alijan Ibragimov a residence permit. 189. On 10 July 1997, Mr Alijan Ibragimov was issued a professional card. 190. On 10 September 1997, Mr Alijan Ibragimov was registered in the registry of aliens in Brainel'Alleud, in part on the basis of the professional card issued to him and in part because the new visa he had obtained.63 191. On 18 September 1997, State Security informed the Aliens Office that Mr Alijan Ibragimov was suspected of having close links to the Russian mafia. 192. On 20 October 1997, the Naturalization Department of the House of Representatives requested State Security and the Nivelles prosecutor's office for an opinion on Mr Alijan Ibragimov’s naturalization application. 193. On 21 October 1997, the central criminal records department informed the House that Mr Alijan Ibragimov did not have a criminal record. 194. On 29 October 1997, State Security informed the House of Representatives that it had nothing to report concerning the naturalization application. One month earlier, State Security had sent the Aliens Office another letter informing it of the links between Mr Alijan Ibragimov and the Russian mafia. It nevertheless issued a “Nothing to report/Niets te vermelden” opinion a month later. When asked for an explanation on this point, Mr Jaak Raes, Managing Director of State Security, said he was unable to come up with a satisfactory explanation that would convince the committee that State Security had acted correctly. “There is clearly a problem here. I can’t deny it.”64

Ibid. Interview of Mr Bruno Bulthé, 8 March 2017, CRIV 54 K013, p. 3. 63 Ibid. 64 Interview of Mr Jaak Raes, 15 February 2017, CRIV 54 K009, p. 9. 61 62

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195. On 3 December 1997, the local police in Braine-l'Alleud sent a report to the Nivelles prosecutor's office on Mr Alijan Ibragimov’s naturalization application. This report stated that the applicant did not speak any of the national languages and spoke in English. According to the report’s findings, it is not possible to make a judgement because the applicant has not been living in the country long enough to qualify for naturalization. 196. On 16 December 1997, Mr Nicolas Atherinos (Tractebel) sent a letter of recommendation for Mr Alijan Ibragimov to Mr Claude Eerdekens, Chairman of the Naturalization Committee and to Mr JeanPierre Detremmerie, Member of the Naturalization Committee. 197. On 8 January 1998, Mr Jean-Pierre Detremmerie replied to Mr Nicolas Atherinos. On 13 January 1998, Mr Claude Eerdekens replied and indicated that the enquiry into the naturalization application was still under way.65 198. On 17 February 1998, the Nivelles prosecutor's office was informed by telephone by the House of Representatives of the links between Mr Alijan Ibragimov and the Russian mafia. The prosecutor's office thus learned that an investigation had been opened by the investigating judge, Mr Damien Vandermeersch, concerning Mr Philippe Rozenberg (see above). 199. On 22 June 1998, the public prosecutor in Nivelles issued an unfavourable opinion in respect of the naturalization of Mr Alijan Ibragimov. 200. The Aliens Office did likewise on 8 July 1998. 201. On 8 September 1998, Ms Rose-Marie Sukennik, a lawyer, sent a letter of recommendation for Mr Alijan Ibragimov to Mr Claude Eerdekens and to Mr Jean-Pierre Detremmerie. This lawyer had been hired by Mr Alijan Ibragimov on the advice of Tractebel, who had asked a business consultancy to argue in favour of Mr Alijan Ibragimov’s residence in Belgium. This firm then contacted

Interview of Mr Benoît Dufour, 22 February 2017, CRIV 54 K010, p. 7 and p. 8.

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maître Rose-Marie Sukennik, a specialist in the field, to help him obtain a professional card.66 202. On 11 September 1998, Mr Daniel Deroux sent a letter of recommendation for Mr Alijan Ibragimov to Mr Claude Eerdekens and to Mr Jean-Pierre Detremmerie. 203. On 1 October 1998, member of parliament Claude Eerdekens issued an unfavourable opinion in respect of Mr Alijan Ibragimov’s naturalization application. 204. On 9 October 1998, Ms Rose-Marie Sukennik, lawyer, sent a second letter to Mr Claude Eerdekens, in which she urged him to postpone the decision on Mr Alijan Ibragimov’s naturalization application. 205. On 16 November 1998, Ms Rose-Marie Sukennik sent a third letter to Mr Claude Eerdekens, in which she pleaded in favour of Mr Alijan Ibragimov.67 206. On 25 November 1998, the Naturalization Committee decided to reject the naturalization application, a decision confirmed by the plenary meeting of the House on 17 December 1998. 2.2.2. Declaration of nationality made before the Civil State Officer 207. Mr Alijan Ibragimov’s second attempt to obtain Belgian nationality was successful. It is a procedure of declaration of nationality made before the Civil State Officer. 208. On 20 December 2004, Mr Alijan Ibragimov filed a nationality declaration with the Civil Registry Officer of Braine-l'Alleud. As the file was complete, it was sent to the Nivelles public prosecutor's office on 21 December 2004, which acknowledged receipt of it by letter on 23 December 2004. The Nivelles public prosecutor's office had until January 23, 2005 to issue a negative opinion, or a certificate confirming the absence of a negative opinion, otherwise, according to the legal requirement, the declaration must be entered in the civil status registers automatically by the Civil Registry Officer. In this letter of 23 December 2004, the public prosecutor asked the Civil Registry Officer of Braine-l'Alleud,

66 67

Interview of Ms Rose-Marie Sukennik, 22 February 2017, CRIV 54 K011, p. 4 and p. 12. Naturalization application of Mr Alijan Ibragimov.

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upon the expiry of the one-month objection period, to kindly send a photocopy of the transcript68. 209. On 21 December 2004, the municipality of Braine-l'Alleud informed State Security about Mr Alijan Ibragimov’s naturalization application. 210. On 24 December 2004, the municipality of Braine-l'Alleud asked the Aliens Office to issue an opinion on the residence situation of Mr Alijan Ibragimov within 15 days. The Aliens Office did not respond because Mr Alijan Ibragimov met the requirements of the number of years’ residence required.69 The Nivelles prosecutor consulted the criminal record and asked the police to carry out the usual investigation. The person concerned is not known to the police or mentioned in the judicial documentation. The Nivelles prosecutor's office issued the opinion on 18 January 2005, i.e., within the statutory period. 211. Information on the existence of a case investigated by the investigating magistrate Damien Vandermeersch was received by the Nivelles public prosecutor's office in 1998 following a telephone call from the House of Representatives (see above). 212. When Mr Alijan Ibragimov filed his application, the Brussels Public Prosecutor's Office had in its possession judicial records in which he was mentioned. According to the public prosecutor Mr JeanClaude Elslander, the Nivelles prosecutor's office was not informed of this, because the public prosecutors’ offices did not have access to information obtained in other districts. According to Mr Elslander, this only became possible when access to the national file became available, in 2010. Questioning all the other districts and obtaining a response within the statutory period, in a case where, a priori, there was no alarm signal, was not an option for the public prosecutor. 213. There is no link between the information gathered in connection with the naturalization application - which was rejected - and the nationality declaration - which was granted - but this can be explained, according to the Nivelles public prosecutor, by a misspelling of the applicant's name or by the magistrates being short-staffed.

68 69

Documents provided by the municipality of Braine-l'Alleud. Interview of Mr Freddy Roosemont, 18 January 2017, CRIV 54 K003, p. 2.

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214. During his interview, the Nivelles public prosecutor stressed that his office was operating, and to some extent is still operating under particularly difficult conditions70. The department dealing with nationality issues was the civil department, consisting of a magistrate and a clerk. The prosecutor’s office departments were spread over three geographical areas approximately five kilometres apart, meaning that the magistrates did not meet in a single building, which would have an opportunity to exchange information. 215. The public prosecutor repeatedly pointed out that the name of Mr Alijan Ibragimov had sometimes been spelled “Ibraguimov”, which may have led to some confusion for the authorities consulted. He also pointed out that even in the House’s original file, the name of the person concerned was spelled “Ibraguimov” and that both spellings were sometimes used within the same department. 216. The Nivelles public prosecutor also noted that as regards the Braine-l’Alleud police, the report on the naturalization procedure and the report on the declaration of nationality were drafted by different police officers.71 217. The request from the municipality of Braine-l’Alleud was received by State Security on 4 January 2005. It was transferred to the Analysis department on 11 January 2005. The department’s negative opinion referred to links with organized crime and with the Tractebel case investigated in Brussels. This opinion followed the traditional route: confirmation by the management and opinion of the legal department. Following an error, the opinion was sent to the Brussels public prosecutor’s office, which was not in any case the competent public prosecutor’s office, on 2 February 2005, i.e. after the deadline. It was not received by the Nivelles prosecutor’s office until 25 February 2005, well after the deadline. 218. Standing Committee R was able to identify the State Security officer who had compiled the negative information and issued the negative opinion that arrived late in Nivelles. He said that he was never under any pressure and did not detect any meddling intended to delay the procedure. 219. As the Civil Registry Officer of Braine-l’Alleud had not received any negative opinions from the public prosecutor by 23 January 2005 in connection with Mr Alijan Ibragimov’s declaration of nationality,

Interview of Mr Jean-Claude Elslander, 18 January 2017, CRIV 54 K003, p. 48, p. 50 and p. 53. of Mr Jean-Claude Elslander, 18 January 2017, CRIV 54 K003, p. 54

71 Interview

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it entered it automatically in the civil registry in accordance with the legal requirement. Mr Alijan Ibragimov was thus granted Belgian nationality on 24 January 2005. 3. The links connecting Mr Patokh Chodiev, Mr Alijan Ibragimov and Mr Alexander Machkevitch with Tractebel and the court cases involving them from 1996 onward 3.1. Connections of Mr Patokh Chodiev, Mr Alijan Ibragimov and Mr Alexandre Machkevitch with Tractebel 220. Mr Alijan Ibragimov’s naturalization file contained letters of recommendation signed by Tractebel executives, including a character reference signed “to whom it may concern” by Mr Nicolas Atherinos and Mr Daniel Deroux, with the aim of helping him to obtain a residence permit and professional card, dated 7 April 1997. Similarly, another letter was sent in September 1998 confirming the company's support for Mr Alijan Ibragimov’s naturalization application.72 221. According to the information obtained by the committee, Belgian lawyer Rose-Marie Sukennik, who was responsible for monitoring Mr Alijan Ibragimov’s naturalization application, was paid directly by Tractebel for this mission.73 Letters sent by Mrs. Rose-Marie Sukennik to the House of Representatives’ Naturalization Committee refer explicitly to the role that Mr Alijan Ibragimov played or may have played in promoting Tractebel’s business in Kazakhstan and the corresponding interest of approving his naturalization.74 3.2. Judicial Section 222. But according to Messrs Daniel Deroux and Philippe Bodson, relations between Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch and Tractebel are deteriorating rapidly, since, in Tractebel's view, their interest in the industrial project is low;

" (...) Tractebel would like to reiterate its support for the naturalization application submitted by Mr Ibragimov, who has contributed actively and crucially to our company’s setting up in Kazakhstan". 73 Interview of Mr Guy Rapaille, 29 March 2017, CRIV 54 K018, 3. 74 Interview of Ms Rose-Marie Sukennik, 22 February 2017, CRIV 54 K011, 13. 72

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to put it another way, their primary interest is to be able to sell in dollars the proceeds of the exploitation of Kazakhstan's gas resources. As Messrs Philippe Bodson and Daniel Deroux put it, using Tractebel as “a conversion pump”75. 223. The incompatibility of these two objectives led to a deterioration of the relations between Messrs Patokh Chodiev, Alijan Ibragimov and Alexander Machkevitch and Tractebel, which regrets not having been alerted to the risks and limitations of this partnership “from the outside”, either by State Security or by the Government at the time, before it entered into the partnership.76 The enquiry committee was unable to verify whether or not the government had this information. 224. According to Mr Bart Van Lijsebeth, it is perfectly normal that Tractebel was not informed by State Security. State Security always sends its memos to official bodies.77 225. Between mid-1997 and the beginning of 1998, relations between partners on the company's board of directors deteriorated, with the head of Tractebel in Kazakhstan being accused by the Belgian management of taking sides with Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch and leaving his post in August 1998.78

“It was from inside that we saw that company was not working and that we did not have the same objectives. Our objectives were to do our job, to provide electricity, heating, hot water and, where applicable, gas, while they just wanted to keep their conversion pump running.” (extract from Mr Daniel Deroux's interview with the enquiry committee, 22 February 2017, CRIV 54 K011, p. 6.) 76 “It is true that State Security warned me, but for having entered into a contract with the partners rather than against entering into a contract with them. It was too late. (...) Someone from State Security came to see me and told me to be careful with regard to the partners. They asked me why I had not been warned by the government. They told me that at the time, the Prime Minister knew about them. The Prime Minister had been speaking with me in Kazakhstan not long before. We could have been warned but we were not.” - excerpt from Mr Philippe Bodson's testimony before the enquiry committee on 22 February 2017, CRIV 54 K011, p. 10. 77 Interview of Mr Bart Van Lijsebeth, 8 March 2017, CRIV 54 K013, p. 3. 78 Ibid., p. 13 75

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3.3. Court cases involving Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch from 1996 onward 226. In connection with or in parallel with this Tractebel episode, the Belgian judiciary initiated a number of judicial enquiries and investigations involving Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch. 227. First, there was the “Napoleon” case, under the responsibility of investigating judge Dominique De Haan.79 It followed a denunciation made to the Financial Information Processing Unit (CTIF) on 24 June 1996 in connection with suspected money laundering of up to 220 million Belgian francs via three purchases of property in Lillois, Waterloo and Rhode80, by Ms Natalia Kajegueldina and Mr Alijan Ibragimov.81 The investigating judges Françoise Roggen, Frédéric Lugentz and Laurence Heusghem successively investigated this case 78/96. Rogatory committees were held in Switzerland, London (with a degree of reluctance by the British authorities, as it was meant requiring Mr Lakshmi Mittal to give evidence82), Jersey and Kazakhstan (in collaboration with investigating judge Bruno Bulthé, in charge of another case involving Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch83). In the course of searches carried out in London on the “Napoleon” case, the BSR’s Red Sky cell identified the payment of a $55 million backhander to Emery84 (a company of which Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch were shareholders), to smooth the acquisition of this gas operating concession in Kazakhstan by Tractebel. More than the cost of the concession itself. This discovery fuelled the "Tractebel” case investigated by judge Jean-Claude Van Espen under number 4/2000.85

Interview of Mr Benoît Dufour, 22 February 2017, CRIV 54 K010, p. 9. Ibid., p. 3. 81 Ibid., p. 6. 82 Interview of Ms Françoise Roggen and Mr Frédéric Lugentz, 8 March 2017, CRIV54 K013, p. 4. 83 See Below. 84 Interview of Ms Françoise Roggen and Mr Frédéric Lugentz, 8 March 2017, CRIV54 K013, p. 4. 85 Ibid., p. 5. 79 80

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228. Judge Frédéric Lutgentz opened another investigation handled by another committee targeting a senior Tractebel executive, under number 202/0386. A third inquiry into other backhanders was opened by the police with the name “Oman”.87 Tractebel cases nos. 4/00, by Mr Jean-Claude Van Espen, and 202/03, by Mr Frédéric Lugentz, ended a few years later, after carrying out numerous investigations, with an observation that the case for government action had been proven.88 229. If we are to list all the judicial cases involving Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch, we should also mention a case heard by the investigating judge Bruno Bulthé following the filing of a complaint against them by UK company Transworld in early December 1997, for fraud. This case also involved numerous investigations, including a visit to the House’s Naturalizations Department on 8 October 1998, and a very unfruitful rogatory committee in Kazakhstan (the duties and seizures requested by the investigating judge could not be performed as the Kazakh authorities were unwilling to cooperate). The plaintiff eventually sent a letter to the court indicating that it wished to withdraw its complaint, having reached an agreement with the interested parties. On 11 September 2003, the court sitting in chambers threw out the case against Messrs Patokh Chodiev, Alijan Ibragimov and Alexander Machkevitch.89 230. Back in 2007/2008, the lawyers of Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch had explained to the investigating judge Frédéric Lugentz, in relation to case 78/96 which was still ongoing, that they were seeking a suspension of the ruling as they wished to avoid a public hearing and its impact on their cases, but also an accusation of corruption.90

Ibid., p. 5. Interview of Mr Benoît Dufour, 22 February 2017, CRIV 54 K010, p. 3. 88 Interview of Ms Françoise Roggen and Mr Frédéric Lugentz, 8 March 2017, CRIV54 K013, p. 9. 89 Interview of Mr Bruno Bulthé, 8 March 2017, CRIV 54 K013, p. 5. 90 Interview of Ms Françoise Roggen and Mr Frédéric Lugentz, 8 March 2017, CRIV54 K013, p. 6 and p. 7 86 87

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It was around this time that investigating judge Frédéric Lugentz was advised that a private detective hired by a French detective firm, had been assigned to monitor him.91 In the end, on 18 February 2011 the court sitting in chambers rejected the idea of suspending the ruling, believing that there was a clear risk of downplaying the roles of the accused and that it was not appropriate to grant them such a measure at this stage in the proceedings.92 Messrs Patokh Chodiev, Alijan Ibragimov and Alexander Machkevitch were referred to the Belgian Correctional Court for criminal conspiracy, fraud and money laundering. 231. The facts following this decision will be described in Part III., I. Findings, 3. The extended plea bargain concluded in the case relating to Messrs Patokh Chodiev, Mr. Alexandre Machkevitch and Mr. Alijan Ibragimov and consorts (see below).

Interview of Ms Françoise Roggen and Mr Frédéric Lugentz, 8 March 2017, CRIV54 K013, p. 9. The consequences of this ruling by the court sitting in chambers will be described in the section of this report devoted to plea bargains as such (see Part III below). 91 92

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II. â&#x20AC;&#x201D; ASSESSMENTS 1.

Nationality legislation

1.1.

Naturalization

232. The nationality legislation applicable at the time was not as it is today: The enquiry committee investigated matters that took place over 20 years ago. Mr Patokh Chodiev and Mr Alijan Ibragimov applied for Belgian nationality on the basis of the law of 13 April 1995 revising the naturalization procedure and the Belgian Nationality Code. The conditions applicable at that time have been changed. For example, the law did not require the applicant to have obtained definitive residence (permanent leave to remain or settlement). The applicant had only to demonstrate sufficient willingness to integrateâ&#x20AC;?, which did not mean that he or she should have adequate knowledge of one of the national languages. Thus, in the case of Mr Patokh Chodiev, all he had to do at the time to demonstrate his willingness to integrate was take a language course. As the police did not have a set standard, the assessment was subjective. As part of the naturalization procedure in force in 1997 and 1998, the House was to compile information provided to it by external bodies, namely the Aliens Office, State Security, the public prosecutor's office and the local police. The deadlines for requesting these opinions were subsequently extended. This deadline was extended from three to four months for the naturalization procedure. 233. Certain bodies did not appear to be as well organized as they could have been. The enquiry committee noted that the files relating to Mr Patokh Chodiev and Mr Alijan Ibragimov were sometimes sent late and sometimes contained erroneous, incomplete or conflicting information. Still, the House had to take a stance on this basis, granting Belgian nationality to Mr Patokh Chodiev while denying it to Mr Alijan Ibragimov. 234. It should be noted that as far as Mr Patokh Chodiev's file is concerned, information in the possession of State Security prior to his application was not forwarded to the House, even though it could have adversely affected the naturalization process. 235. It should also be noted that the Nivelles prosecutor's office did not try to find out, or was not in a position at the time to find out whether Mr Patokh Chodiev was involved in a court case outside his district (which was indeed the case); it merely provided the House with information to the effect that there had been no prosecution in the Nivelles district itself.

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236. With regard to Mr Patokh Chodiev’s naturalization application, which was approved by the House of Representatives on 18 June 1997, and Mr Alijan Ibragimov’s naturalization application, which was rejected by the House of Representatives on 17 December 1998, the House’s Naturalization Department and Naturalization Committee followed the procedure correctly. 237. It was therefore on the basis of erroneous and incomplete information that the House approved Mr Patokh Chodiev’s naturalization. 1.2. Declaration of nationality 238. Mr Alijan Ibragimov obtained Belgian nationality due to a combination of two malfunctions: on the one hand, the processing of the case by State Security after the statutory deadline, which resulted in the automatic granting of Belgian nationality to Mr Alijan Ibragimov, and on the other hand, the fact that the Nivelles prosecutor's office failed to link the naturalization application by the person concerned, for which the Nivelles prosecutor’s office issued a negative opinion on 22 June 1998, to his declaration of Belgian nationality, for which the Nivelles public prosecutor's office issued a positive opinion on 18 January 2005. 239. Mr Alijan Ibragimov’s declaration of nationality was lodged on 20 December 2004, the day before the end-of-year holidays. As the file was complete, the Civil Registry Officer forwarded it the next day to the public prosecutor's office, which had one month in which to issue an opinion. It was also sent to State Security and the Aliens Office so that they forward their comments to the public prosecutor. The overly short period that the public prosecutor had at the time, its non-suspension during the holiday period, the difficulty of accessing the case-related information of other judicial districts on that date and State Security’s lengthy delay in responding to the Nivelles prosecutor's office’s request, prevented it from having the information that should have queried the granting of Belgian nationality by Mr Alijan Ibragimov.

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240. It was a combination of malfunctions in the Nivelles prosecutor's office and State Security that explains why the Braine-L'Alleud civil registry officer had to register Mr Alijan Ibragimov’s declaration of Belgian nationality, even though State Security had issued a negative opinion about him, which was received too late. The Braine L'Alleud Civil Registry Officer followed the procedure correctly. 2. State security 2.1 Naturalization 241. The “Nothing to Report/Niets te Vermelden” opinion issued by State Security in the cases of Mr Patokh Chodiev and Mr Alijan Ibragimov was given relatively quickly. 242. Even though it had information at the time linking Mr Patokh Chodiev to the Russian mafia, on 24 April 1996, State Security informed the House that it had “Nothing to Report/Niets te Vermelden” in connection with Mr Patokh Chodiev’s naturalization application. Witnesses put forward various theories as to why State Security had not raised objections. The enquiry committee has been unable to establish the reasons for this lack of objections. 243. In the case of Mr Alijan Ibragimov’s naturalization request, State Security informed the House of Representatives on 29 October 1997 that it had “Nothing to Report/Niets te Vermelden” in connection with Mr Alijan Ibragimov. One month earlier, on 18 September 1997, State Security informed the Aliens Office that Mr Alijan Ibragimov was suspected of having close links to the Russian mafia. The enquiry committee was unable to determine the cause of these conflicting reports by State Security. 2.2 Declaration of nationality 244. In Mr Alijan Ibragimov’s nationality declaration procedure, State Security issued a negative opinion, but this was received by the Nivelles prosecutor’s office after the one-month deadline, with the result that Mr Alijan Ibragimov became Belgian. Moreover, this opinion was first sent to the Brussels public prosecutor's office rather than the Nivelles public prosecutor's office.

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3. Judicial authorities 245. Neither at the time of Mr Patokh Chodiev’s naturalization application nor at the time of Mr Alijan Ibragimov’s request to make a declaration of nationality did the Nivelles prosecutor's office ask other judicial districts for information about possible judicial cases relating to a naturalization or declaration of nationality application. It seems that the reason for this was that at the time, the public prosecutor's office did not have access to information relating to other districts. According to the Nivelles public prosecutor, this only became possible when the national database was set up in 2010. 246. Around the time of Mr Alijan Ibragimov’s declaration of nationality, the Nivelles prosecutor's office issued a positive opinion on 18 January 2005. At that time, no link had been established with the information gathered in connection with the naturalization application, on the basis of which the Nivelles prosecutor's office issued a negative opinion on 22 June 1998. The enquiry committee has been unable to establish why this was not done. 247. It was thanks in particular to the House’s departments that the Nivelles prosecutor's office was informed of the ongoing investigation by the investigating judge Damien Vandermeersch into Mr Philippe Rozenberg; the Nivelles prosecutor's office had issued an unfavourable opinion in respect of Mr Alijan Ibragimov’s naturalization file on 22 June 1998. 248. The enquiry committee notes that in 2002, two reports allegedly drawn up by the Waterloo police in connection with the naturalization of Mr Patokh Chodiev were released to the press and to an adviser to Standing Committee R. The enquiry committee considers, following the enquiry by Standing Committee P and the hearings, that these reports are dubious and that the only authentic police report on the naturalization of Mr Patokh Chodiev is that of 10 December 1996, which is in his naturalization file. 4. Interventions 249. The enquiry committee found that it was common at the time of the facts for persons outside the departments concerned to be involved in applications for residence permits, economic permits or naturalization. The authors of these interventions varied (civil society, future employers, political agents, lawyers, etc.). These interventions had different objectives: to ask questions about the progress of the case or to support them, sometimes in a very insistent manner.

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250. The EXC was particularly interested in the letter sent by Mr Serge Kubla in connection with Mr Patokh Chodiev’s naturalization application. Firstly, it notes that the chairman of the naturalization committee at the time asserts that this type of intervention was common at the time and had no influence on the case. Secondly, the naturalization department had already, in accordance with the case law at the time, issued a favourable opinion on the naturalization application, as the opinions of the Aliens Office, State Security, the public prosecutor's office and the central criminal records service were favourable. The enquiry committee therefore considers that this letter could not have influenced the outcome of Mr Chodiev's naturalization application. 5. Forfeiture of nationality 251. The enquiry committee considers that the legal conditions93 to be met before the public prosecutor could ask for Messrs Patokh Chodiev and Alijan Ibragimov to be stripped of their Belgian nationality did not appear to have been met at the time and do not appear to have been met today: — between 1997 and 2011, there had been no unsuspended sentences of five years, there had been no annulled marriages and the interested parties had not, to the knowledge of the public prosecutor, seriously failed in their duties as Belgian citizens; — the grounds for forfeiture of nationality laid down by the miscellaneous provisions law of 27 December 2006 (I) - namely the acquisition of Belgian nationality through fraud - is not applicable: indeed, the stripping of Belgian nationality acquired through fraud is prescribed for five years from the date on which the person concerned obtains Belgian nationality.94 Since 2011, the Belgian Nationality Code has been altered several times to reflect changes in society.

See Belgian nationality code, art. 23, applicable from 1 January 1992 to 27 December 2006 (Law of 13 June amending the Belgian Nationality Code and Articles 569 and 628 of the Judicial Code, Moniteur Belge of 3 September 1991). 94 See Belgian Nationality Code, current article 23, paragraph 1, 1, and article 23, paragraph 9, inserted by the miscellaneous provisions law of 27 December 2006 (I), Moniteur Belge of 28 December 2006. 93

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III. — RECOMMENDATIONS 1. Naturalization 252. Since 1997, the legal basis and the naturalization administration process have been the subject of numerous amendments, which severely limit the capacity of the enquiry committee to make useful recommendations with regard to part I. 253. In order to preserve the objective character of the processing of naturalization applications, the enquiry committee proposes to include in an index all the documents and interventions relating to one of the House’s naturalization cases. The enquiry committee requests the Federal Ethics Committee to consider issuing an opinion on the rules that must be respected when dealing with these personal cases. 254. The House of Representatives should, with due respect for the rules laid down in the Constitution, clearly define the role that each of its organs has to play in the naturalization procedure. Depending on the number of files to be processed each year, the Naturalization Committee and the departments that assist it in its tasks should be allocated the human and material resources they need to successfully perform the tasks that the Constitution assigns to the House of Representatives. The legislator should specify the role that the executive power and its departments, such as the Aliens Office or State Security, are required to play in the procedure for examining naturalization applications. 2. Crossroads Security Data Bank 255. As in the case of the Terrorist Attack enquiry committee, the enquiry committee is calling for the creation of a Crossroads Security Data Bank in order to ensure better access to all information. The existing data banks of our country’s various security services must be transformed into a general Security Crossroads Bank to which the authorized security departments will have secure access. Thanks to this central Crossroads Bank, all security departments will have access to the same information and the data can be cross-linked effectively. The advantages of a Crossroads Bank are clear, namely efficiency and lower risk that some information may not end up in the right place. The basic principle must be that those who need information get it in a timely manner. This is not a new database: the existing data banks can be used to ensure it becomes operational rapidly95.

See third interim report on the “Security architecture” component of the parliamentary enquiry committee tasked with examining the circumstances that led to the terrorist attacks of 22 March 2016 at Brussels-National Airport and at Maelbeek Metro Station in Brussels, including the development and management of the fight against radicalism and the terrorist threat, DOC 54 1752/008, point IV.2.2.6., pp. 212-214. 95

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256. The authorities called upon to issue an opinion in connection with a naturalization application, namely the public prosecutor's office, State Security and the Aliens Office, must have access to this Security Crossroads Bank so that the Naturalization Department of the House of Representatives has all the information it needs to be able to decide on the naturalization application. 257. The enquiry committee stresses the importance of parliamentary supervision of the use of the information on the Security Crossroads Bank. 3. State security 258. The enquiry committee recommends that the information provided by State Security in connection with nationality acquisition procedures should be explained as clearly as possible to ensure that the public prosecutor's office and the House of Representatives are appropriately informed. 4. Judicial authorities 259. The enquiry committee recommends that access to information should be shared optimally between the public prosecutor's offices. The management and access of centralized computer databases must enable the public prosecutor's offices to have all the information they need to form the opinions they are required to issue in connection with nationality acquisition procedures. 260. As regards the information forwarded by the judicial authorities, it is important to: â&#x20AC;&#x201D; ensure better coordination and exchange of information between judicial districts;

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— ensure timely delivery of information and the ability to correctly determine the identity of applicants; — provide the judicial authorities with sufficient IT resources to effectively manage a powerful database.

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PART II. INTRODUCTION OF THE MISCELLANEOUS PROVISIONS LAW OF 14 APRIL 2011 WITH REGARD TO PLEA BARGAINS I. — FINDINGS 1. Introduction 1.1. Legal framework under article 216a of the Belgian Criminal Code before the Law of 14 April 2011 261. Plea bargaining is not new to our legal system. Under this legal form, the prosecutor can propose to drop a prosecution if a suspect pays a set sum of money. The first plea bargain arrangement dates back to 1935, in the Belgian Criminal Investigation Code by Royal Decree No. 59 of 10 January 1935. This initial system applied only to offences coming under the jurisdiction of the police court.96 262. After two extensions, article 216a, which governs the current plea bargain system, was introduced in 1984 in the Belgian Criminal Investigation Code by the law of 28 June 198497. Before the 1984 law, it was only possible to propose a plea bargain for offences not punishable by imprisonment for more than three years. After the 1984 law came into force, a plea bargain could be offered for an offence punishable by imprisonment for up to five years.98 263. Article 216a of the Belgian Criminal Investigation Code was last99 amended by the law of 10 February 1994100. Following an opinion issued by the Council of State, the amendment to the 1994 law renamed the plea bargain arrangement as “ending prosecution on payment of a sum of money (EAPS)”. The above-mentioned law has relaxed the condition whereby the prejudice caused should in principle be compensated in full in advance. Full, prior compensation for prejudice was reduced as it was hampering the application of plea bargains.

Comment by Mr Flor De Mond on the proposed extension of the plea bargain, as adopted by the Panel of Prosecutors General. Law of 28 June 1984 extending, for certain offences, the applicability of ending prosecution on payment of a sum of money, Moniteur Belge of 22 August 1984. 98 DE RUYVER, B. and VAN IMPE, K., “De minnelijke schikking in bemiddeling in strafzaken”, R.W., 11, 10 November 2000, pp. 445463. 99 Other than the laws of 2011. 100 Law of 10 February 1994 introducing a criminal mediation procedure, Moniteur Belge of 27 April 1994. 96 97

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264. For an EAPS to be possible, two conditions had to be met; the criminal proceedings had to: — —

be enforceable, and have not yet begun.

This means that the EAPS was no longer an option once prosecution had been initiated, for example, following a request for judicial investigation or a direct summons before the police court or the correctional court. 265. With regard to the penalty, the offence could not be punishable by a penalty of more than a fine or a five-year prison sentence, or both. The five-year limit was a limit in abstracto, which means that the maximum set in the legal provision should be taken into account. The prosecutor’s office also had to consider that in practice it would accept mitigating circumstances provided that it felt that it had only to require a fine and, where appropriate, confiscation. 266. An EAPS was only possible if certain conditions were met with respect to the plaintiff: — the perpetrator remedied the prejudice in full, or — the perpetrator has acknowledged his civil liability in writing and has produced proof of payment of the undisputed portion of the prejudice, and the manner of its payment. 267. Acceptance of an EAPS constitutes (constituted) an irrefutable presumption of fault. 268. The only person authorised to propose an EAPS is the public prosecutor or the labour magistrate. An EAPS can be offered to one or more perpetrators of a punishable act. If the perpetrator agrees, he must pay the sum of money within a period of 15 days to three months. This payment may be linked to the sale of certain properties that the judge may have confiscated as part of the conviction.

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269. The amount must be at least 10 euros and at the most equivalent to the maximum fine laid down in the law for the offence, plus any additional taxes. The public prosecutor may also require certain costs such as expert fees to be paid. 270. If the suspect meets all of these conditions, the prosecution for the offences for which the plea bargain was entered into is dropped. It is then no longer possible to take additional action for the same offences under any description whatsoever (non bis in idem). An EAPS is not added to the perpetrator’s criminal record. As it was not a conviction, it could (can) not serve as the basis for the application of the rules governing re-offending101. 1.2. Areas for consideration with a view to extended plea bargains 271. In 2004, at the request of Ms Laurette Onkelinx, Deputy Prime Minister and Minister of Justice at the time, a summary report, the “Justice Dialogues”102, was drawn up by Messrs Fred Erdman and Georges de Leval. The minister had commissioned the study to establish why and how Belgian citizens had lost confidence in the justice system. The report is described by the authors themselves as a “suggestion box”. In Chapter III., “Trials”, suggestions were made regarding the manner in which articles 216a and 216c of the Belgian Criminal Investigation are applied: “a minor revision of these articles should allow the public prosecutor sitting in chambers, when settling the case, to ask that the prosecution be dropped in exchange for meeting certain conditions, and to be authorised by the court sitting in chambers to apply the summons in a report (The attendance sheet to be used as a report)”. According to the authors, these are “small changes that would speed up the proceedings.”103. 272. Although after the 1994 amendment to the law, it was necessary to wait until 2011 for the plea bargain rules to be revised again, the system was examined in Parliament during the period 20042007 as part of the reform of criminal proceedings, the “Grand Franchimont” draft law104. However, the current article 216a on plea bargains was incorporated without amendment in the draft law tabled, which was never voted on due to the dissolution of Parliament, while the article had been adopted without amendment in the Senate105.

Art. 54-57a of the Belgian Penal Code. https://justice.belgium.be/sites/default/files/downloads/ justitie_dialogen_NL.pdf. 103 Justice Dialogues 2004, 9 and 111. 104 Draft law containing the Belgian Criminal Procedure Code, DOC 51 2138/001. 105 Draft law containing the Code of Criminal Procedure, Doc. Parl., Senate, No. 3-450/25. 101 102

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273. During hearings in the Court Justice Committee on the above-mentioned draft law106, according to the minutes, plea bargains were mentioned twice. The first mention of a plea bargain came from Mr Pierre Rans, but in his advocacy of the victims’ right to information. For Mr Yves Liégeois, the plea bargain is just one example of the many legal provisions of the project that have been adopted in the existing legislation without the slightest evaluation. Mr Yves Liégeois filed a memo during this hearing. This memo stated the following with respect to plea bargains and criminal mediation: “plea bargains and criminal mediation (articles 34 and 35) incorporate the existing rules without examining or taking account of opinions, in particular those of the Court of Cassation and the Council of State, from which it is clear that the public prosecutor should have broader powers to reach a compromise. And yet this matter was adequately covered in the discussions. At the very least, there should be a thorough examination of whether a form of compromise or plea bargain should be an option once an investigation has commenced, until the settlement phase of the criminal proceedings before the investigating courts. This is in particular in line with F. Erdman and G. de Leval’s view in the “Justice Dialogues” document. Measures that could lead to the dropping of a prosecution should be broadened, with perpetrator-victim mediation being a separate process that does not in itself result in the dropping of a prosecution and can be combined with other options or measures.”107 274. The electoral program of the CD&V for the 10 June 2007 federal elections stated as follows: “the CD&V also wishes to examine whether it is possible to give a legal basis to “pleading guilty” for offences that cause mainly financial prejudices. Helping to obtain evidence or a confession can have a positive impact on the severity of the punishment.”108

Report of the hearings, DOC 51 2138/004. Memo by Mr Yves Liégeois submitted during the hearing of 8 February 2006, pp. 7-8. 108 CD&V’s Electoral Program for the Federal Elections of 10 June 2007, p. 36. 106 107

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275. A negotiation text of 16 October 2007 for the conclusion of a governmental agreement expresses a similar view: “In the light of European standards, the government is continuing to modernize criminal proceedings law by checking which parts of the draft law on the revision of the criminal proceedings law can be adopted in the short term. In this context, it examines, inter alia, the possibility of introducing a system for pleading guilty, where appropriate, acknowledging facts or confessing actions.”109 276. Ultimately the idea was not accepted in the governmental agreement of 18 March 2008. However, the governmental agreement stipulated as follows: “The government will continue to develop alternative dispute resolution methods, including by strengthening mediation procedures.”110 277. In the 2006-2007 Annual Report of the Panel of Prosecutors General, the preparation of the seminar of the Panel of Prosecutors General of 27 April 2017 is discussed. The coordinating team had planned a series of important measures to be undertaken by the network in the future and had made recommendations regarding the preparation of the Memorandum that the Panel should draft for the future government. It was thus proposed to introduce a legal option for the public prosecutor of offering a plea bargain in financial cases, even when an investigation had already been initiated. This proposal was included in the memorandum of the public prosecutor's office of May 2007.111 278. The policy and management plan of 25 June 2007, “Modernising the justice system: a goal for the public prosecutor’s office”, states that: “the Panel of Prosecutors General will moreover consider formulating the necessary proposals de lege ferenda with a view to extending the alternative processing options beyond the discretion of the courts in the strictest sense.”112 279. In an interview for Gazet van Antwerpen with Mr Yves Liégeois on 29 August 2007, on the occasion of his appointment as President of the Panel of Prosecutors General, he said: “the public prosecutor should have many more options for not prosecuting. Plea bargains should be extended significantly, and it should be possible to implement it at all stages of the criminal case. In addition, the prosecution should simply be able to transfer cases relating to certain corporate, tax or financial offences to the competent authority, which will handle them thereafter. The justice system must become more human, fairer and simpler at all levels. We should not be use unwieldy, elephantine procedures to penalise minor offences committed by ordinary citizens. An appropriate procedure should be proportionate to the nature of the crime to which it is applied.”113

AWDC Documentation, Appendix 1, Part 2, p. 17. Federal Government Agreement of 18 March 2008, p. 28. 111 Panel of General Prosecutors, annual report 2006-2007, p. 19. 112 Public Prosecutor’s Policy and Management Plan, June 25, 2007, p. 12. 113 “Liégeois leidt vanaf 1 september college van procureurs- generaal” (Liégeois will head the Panel of Prosecutors General from 1 September), Gazet van Antwerpen, 29 August 2007. 109 110

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280. The document “Guidelines for a strategic plan for the modernization of the public prosecutor’s office” of July 2008 mentions, in point 2.3.5., the legislative amendments to be examined by the Panel (“Criminal Policy - Criminal Procedure” expert network). which can form part of supervision of the penal chain. One of the legislative changes to be considered is the “Broadening of plea bargain options for the public prosecutor”114: “The measures that could lead to the dropping of a prosecution should be broadened, while being able to combine perpetrator-victim mediation with other options or measures. For example, a mediation phase could be included as part of a plea bargain proposal in which a settlement with the tax authorities should be an option, so that payment of taxes and fines would be a component of the plea bargain. In this way, the authority can exhaust its recovery opportunities. This option could also be explored with other authorities.”115 2. Problem of seizures in the diamond trade 2.1. Introduction 281. The Antwerp World Diamond Centre’s (AWDC) application for legislative amendment follows several (substantial) seizures of diamonds from Antwerp diamond dealers between 2005 and 2007116.

“Guidelines for a strategic plan for the modernization of the public prosecutor’s office”, July 2008, p. 32. Ibid. 116 Written statement by Mr Yves Liégeois concerning the hearing of 15 March 2017 for the enquiry committee, p. 1. 114 115

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The report of the AWDC Board of Directors of 15 March 2007 reads as follows:117 “The proposal is made that the HRD endeavours to lobby for an amendment to the law, specifically for the diamond sector. It is proposed to prepare a presentation for the political parties to give them a clear view on the situation. The HRD should try to negotiate with the authorities to obtain that no more seizure of the goods will occur”118 Mr Freddy Hanard (CEO of AWDC from May 2006 to May 2010) explained that this approach was based on two reasons: “There was above all the problem of seizures. And the second reason was the interminable cases that, in addition to their endless nature, were hanging over the collective heads of the trade like a sword of Damocles.”119 282. Mr Freddy Hanard explained that initially, the local authorities were approached: “What is the point of all this? We approached the local authorities first of all. It was the governor at the time, Mr Paulus. Next, we approached the mayor, who was also personally involved, especially in Antwerp. Then we contacted the outside world, especially the political world, and the party leaders in particular. I remember seeing Caroline Gennez, Vande Lanotte, we saw the leader of VLD at the time, Mr Somers, Mr Vandeurzen, to inform the political world of exactly what was going on, of the danger of what was happening in these numerous investigations.”120 (translation) 283. On 17 October 2008, the AWDC Board of Directors met to inform its members of the seizure of diamonds by an investigating judge. The report of the Board of Directors mentions: “As soon as the AWDC management has been informed, contact was made with Justice Minister J. Vandeurzen, Prime Minister Y. Leterme, and the Minister of Finance D. Reynders, to explain the situation. The large quantity of diamonds seized could cause serious harm, not only to the company concerned, but also to the diamond banks and the trade as a whole. On Monday 20 October a press conference will be held on the matter of the KUL analysis of the diamond trade. Policymakers must be persuaded to show public support for the diamond trade.” (translation)

AWDC and HRD (Hoge Raad voor de Diamant) are two names for the same organization. Report of the AWDC Board of Directors of 15 March 2007 (AWDC Appendix 4 - Board of Directors reports). 119 Interview of Mr Freddy Hanard, 22 March 2017, CRIV 54 K017, p. 2. 120 Ibid. 117 118

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284. The report of the Board of Directors of 30 October 2008 refers to the political contacts that were made as a result of the above seizures: “the discussion between the AWDC delegation and Minister Van Quickenborne was positive, and the Minister promised to contact several policymakers by telephone. A copy of the study was submitted. The meeting with the Prime Minister took place but it was less fruitful. The meeting with Minister K. De Gucht was positive and the minister listened carefully, demonstrating thorough knowledge of the case, and will contact Minister Vandeurzen. The lawyers will try to arrange a meeting with Minister Vandeurzen’s office.”121, 122 (translation) 285. Mr Peter Van Calster, at the time the leading magistrate for diamond fraud cases at the Antwerp public prosecutor's office, referred to the “Monstrey” case in connection with the seizures. According to Mr Peter Van Calster, this case concerns a major financial, tax and customs fraud. This is a very far-reaching case, both in terms of the number of diamond dealers involved and the amounts fraudulently obtained. In his written statement to the enquiry committee, Mr Peter Van Calster pointed out that criminal seizures made in the Monstrey case caused a major stir in the diamond sector. He states: “I still remember the repeated attacks by the trade’s representatives on the investigating judge, the Antwerp public prosecutor - my superior - myself and even the office of the Antwerp general prosecutor.”123 At his interview, Mr Peter Van Calster also referred to another major case involving the diamond trade: Omega Diamonds. In 2007 Omega Diamonds was already the subject of a customs investigation, and in January 2008 an investigation was instructed124. At the enquiry committee Mr Ari Epstein said that AWDC does not intervene in individual cases. “But we must ensure that continuity is not compromised. As far as we are concerned, it does not matter whether it is one or other company. Our concern is for the trade overall.”125

The fact that these are indeed seizures is not explicitly mentioned in the document that AWDC has provided to the committee of Inquiry, but it can be inferred from a brief explanation, drafted as follows: “If the investigating judge orders a seizure, the goods should remain at the company so that supervised sales are possible.” (translation) 122 AWDC Board of Directors Report, 30 October 2008, AWDC Documentation, Appendix 4. 123 Interview of Mr Peter Van Calster, 22 March 2017, CRIV 54 K017 and a written declaration. 124 In the end the Omega Diamonds case resulted in the biggest extended plea deal ever. 125 Interview of Mr Ari Epstein, 7 June 2016, CRIV 54 K039, p. 5. 121

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2.2. The idea of “a fine that ends prosecution” (= extending the plea bargain concept) 286. In this context, AWDC called on the lawyers Axel Haelterman and Raf Verstraeten. The lawyers systematically issued invoices and reported to AWDC extensively126. The AWDC stated the following on this matter: “in the record we found, it turned out that Axel Haelterman and Raf Verstraeten were reporting to Philip Claes. It is evident from the record found that there were numerous contacts made and intensive reporting in the years 2007, 2008 and 2009. By the end of 2010, this report resumed before it ceased completely.” (translation) Mr Axel Haelterman, a lawyer and professor of tax law at KU Leuven, said that he had been AWDC’s lawyer since 1995 and thus defended the interests of the diamond trade rather than individual diamond traders.127 Mr Raf Verstraeten, a lawyer and professor of criminal procedure law at KU Leuven, explained to the enquiry committee that he was involved in work for AWDC through Mr Axel Haelterman.128 However, as a lawyer Mr Raf Verstraeten defends the interests of individual diamond traders, especially in the Omega Diamonds case. 287. The first service billed to AWDC by Mr Raf Verstraeten was a meeting with AWDC and Mr Axel Haelterman on 22 May 2007. During the period from late May to early June 2007, Mr Raf Verstraeten invoiced “research into plea bargains” (translation) 129 288. Mr Axel Haelterman suggested the idea of a fine ending prosecution (= extending the plea bargain) in an e-mail sent to Mr Raf Verstraeten on 30 May 2007 in preparation for the AWDC Board meeting130. “This is why, based on your suggestion, I am considering some ideas, which could be summarized as follows: — plea bargain is the name we will use to describe a fine that brings an end to proceedings;

AWDC - Letter to the enquiry committee containing answers to the enquiry committee’s questions. Interview of Mr Axel Haelterman, 15 March 2017, CRIV 54 K015, pp. 2-3. 128 Interview de Mr Raf Verstraeten, 19 April 2017, CRIV 54 K021, pp. 2-3. 129 Supporting documents relating to the invoices of Messrs Axel Haelterman and Raf Verstraeten. 130 E-mail sent by Mr Axel Haelterman to Mr Raf Verstraeten on 30 May 2007. 126 127

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— idea: the legal effect is to block the prosecution of possible abuse (therefore no “guilty or not guilty” ruling, no formal recognition of guilt as in the case of a suspension); — idea of the fine: is perceived as negative enough to be acceptable in its perception (perceived as being more severe than the plea bargain); — The idea is actually based on the plea bargain for violations of the Highway Code, while not leaving the initiative exclusively to the public prosecutor's office; — to ensure that the scope specifically applies to the companies that are the subject of prosecution and the persons who act as the management of these companies; — idea: object of the regulation: effectiveness for the public authorities and limiting uncertainty for companies that have to carry on trading, and might have to cease trading if there is a longer case (with or without seizures), with a risk for employment, etc.); — reason: in this way, we are trying to avoid the objection of “class justice” whereby “the rich can pay to have lawsuits dropped”; — or: an opportunity to escape the critical delays related to the functioning of the justice system in cases and subjects where these delays have a negative impact on the economy, jobs, etc.; — the initiative could come from either the company or the person being investigated by the prosecutor’s office; — minor procedure: the party wishing to formulate this proposal submits a request containing the concrete proposal to the court sitting in chambers, the other party responds either by presenting arguments to reject the request or by presenting a counter-proposal which is also extremely concrete; — the court sitting in chambers rules on and must seek such a settlement; in cases where the risk to society of reoffending is minor, for a purely financial offence related to company law or of an accounting or tax-related nature, this option must be encouraged, etc. (alternatively: define the scope of application on the basis these alleged offences);

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— possible recourse to the CMA; — the adoption of this regulation ends the prosecution and automatically ends the task of the

investigating judge. What do you think? The idea would be to make a first draft of the ideas put forward in this area quite quickly (next week) and to submit it to the party leaders so that they can include these ideas in the government's negotiations.” (translation)

289. Like other interested organizations, AWDC is drawing up a draft memorandum for governmental negotiations. A memorandum was therefore drawn up by AWDC (June 2007)131 and sent to the political parties (September 2007).132 This document is entitled “Points of attention for the diamond trade in Belgium. Memorandum for the attention of the future party forming a government.133 This memorandum has thus been forwarded to the leaders of the “three major Flemish political parties” (Ed.: CD&V-NVA, Open Vld, sp.a).134 290. The draft memorandum first emphasizes the importance of the diamond trade for Belgium in general and for the city of Antwerp in particular. AWDC argues that the strength of the existing legislation and the controls in place for the diamond trade constitute one of Antwerp's strengths and enhance the city of Antwerp's brand image. According to AWDC, the increasingly common methods for applying the rules at the time, however, undermined the normal operations of companies, the holding of stocks, the consignment of goods and the possibility of financing stocks. According to AWDC, seizure of goods of equivalent value (saisie par équivalent), with all diamond stocks being seized for a very long period of time, seriously disrupts the market.135 Mr Peter Van Calster, former public prosecutor with the Antwerp prosecutor's office, nevertheless declared before the enquiry committee: “Nobody can argue that criminal seizures have been conducted indiscriminately, grossly, and recklessly, with the result that the trade has been heavily and unjustly impacted, injured, or damaged. The numerous judicial interventions have almost always upheld these seizures.”136

“Points of attention for the diamond trade in Belgium, Memorandum to the future party forming a government”, versions dated 5 and 7 June 2012. 132 AWDC Board of Directors Report of 6 September 2007 (AWDC Appendix 4 - Board of Directors' Reports). 133 Both the 5 June 2007 and the 12 June 2007 versions were forwarded to the enquiry committee by AWDC. 134 Memorandum dated June 12, 2007, p. 1. 135 Memorandum dated June 12, 2007, p. 1-2. 136 Interview of Mr Peter Van Calster, 22 March 2017, CRIV 54 K017, p. 3. 131

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291. The draft memorandum sets out some proposals concerning the neutral customs zone for the international diamond trade, the reassessment of conditions for the implementation of legislation on money laundering, the search for a level playing field with foreign diamond centres in terms of regulation and control, and finally the support given to proposals relating to the fine putting an end to prosecution (= plea bargain). The draft memorandum of 7 June 2007 states as follows: “the trade is putting its weight behind two proposals to promote business viability.” The first proposal relates to clear procedural agreements for seizures at companies. The second proposal concerns the plea bargain: “4.2 But more important, we now have the option of a fine that “puts an end to proceedings”. This is to ensure the continuity of the company (and therefore to preserve its value and jobs) and to prevent a company from being bogged down in a criminal investigation and trial for years, often involving highly technical analysis and procedural battles. The diamond trade therefore wishes to express its explicit support for the ideas that are already on the table and which have been drawn up in this regard. In order to be both socially acceptable and practicable, this regulation must, based on the experience of the diamond trade, present the following characteristics. The proposals to be developed would for the most part focus on extending the existing arrangement for ending prosecution on payment of a sum of money: — by making the regime applicable to all offences and crimes, except those that pose a danger to safety or where there is a risk of reoffending; — by providing for the possibility of imposing a fine that puts an end to the proceedings in agreement with the prosecution, also after an investigating judge has been appointed; — the regulation could, where appropriate, be limited to offences in which an “injury compensation element” can be demonstrated, such as in tax offences (with as a corollary, termination of the prosecution of the entire action giving rise to prosecution);

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— the settlement must have the legal effect that the offences can no longer be prosecuted, and must not result in the slightest supposition as to the issue of guilt; — the application to obtain such a fine that puts an end to the proceedings may be initiated by both the company and the person against whom the prosecution has initiated an investigation, and by the prosecutor’s office. This application may be filed at each stage of the investigation, therefore including after the appointment of an investigating judge and also if the criminal court takes the case." 292. Mr Raf Verstraeten has further developed the idea of a fine that puts an end to the prosecution in favour of AWDC137. On 16 August 2007, he sent Mr Philip Claes of AWDC and Mr Axel Haelterman an initial memo setting the guidelines for a "vversnelde en vereenvoudigde afdoening van een strafproces via een akkoord tussen openbaar ministerie en verdachte" (accelerated and simplified settlement of criminal proceedings subject to an agreement concluded between the public prosecutor’s office and the suspect). Under point 1. Mechanism, the memo states as follows: “accelerated and simplified settlement of offences could be done in two ways; in the first case, the existing mechanism for ending prosecution against payment of a sum of money could be extended. In the second case, it is necessary to refer the case to a judge (judicial approval)" (translation). In his covering letter Mr Raf Verstraeten explained: "As agreed, I have examined in greater detail the possibility of making a legislative change that could be useful to the diamond trade, by providing for a "negotiated” solution in a criminal case."138 (translation) Mr Raf Verstraeten continues: "At first sight, the simplest solution would be to extend the existing plea bargain arrangement - whose official title is "ending prosecution on payment of a sum of money" - provided for in Article 216a of the Belgian Criminal Investigation Code (and which can only apply when the public prosecution has not commenced yet, either by the appointment of an investigating judge responsible for conducting an investigation, or by direct summons before the trial court) in cases in which there is also a judicial investigation. This arrangement has several advantages: it is only necessary to negotiate with the public prosecutor's office, only the payment of a sum of money is required (as the equivalent of "Special Confiscation"), and the conclusion of an EAPS does not constitute an admission of guilt, there is no criminal conviction and therefore no criminal record.”139(translation) Mr Raf Verstraeten writes elsewhere that such a legislative amendment is not straightforward at all, mainly as its insertion in the Belgian system poses a technical problem.

"Versnelde en vereenvoudigde afdoening van een strafproces via een akkoord tussen openbaar ministerie en verdachte (krachtlijnen)'', email from Mr Raf Verstraeten to the AWDC and Mr Axel Haelterman of 16 August 2007. (AWDC documentation, Appendix 1/ Part 1 a - memo point 1). 138 Email from Mr Raf Verstraeten to the AWDC and Mr Axel Haelterman of 16 August 2007. 139 Email from Mr Raf Verstraeten to the AWDC and Mr Axel Haelterman of 16 August 2007. (AWDC documentation, Appendix 1/Part 1a - Memo point 2 in fine). 137

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293. On 29 August 2007, Mr Raf Verstraeten sent a revised version of his memo on the guidelines140 to Messrs Philip Claes and Stéphane Fischler of the AWDC, and to Mr Axel Haelterman, who had made several suggestions141. Mr Raf Verstraeten wrote: "Concerning Axel’s first comment: I think we can actually remove the reference to the required presentation to the judge in the paragraph concerned, which is on page 3. It seems to me however necessary to continue to emphasize that the plea bargain procedure should still be an option when a prosecution is already under way. This makes it possible to distinguish it from the current situation, as outlined above (current Articles 216a and 216b of the Belgian Criminal Investigation Code)."(translation) In his email of 27 August 2007, Mr Axel Haelterman has suggested deleting the reference to judicial approval and emphasising the broader benefits to society142. 294. In this email of 27 August 2007, Mr Axel Haelterman also relates a consultation conducted with Mr Raf Verstraeten and the AWDC, during which they "discussed the best way to address the matter of confiscations. We all noted that: — if one immediately tables a draft law (or an idea for one), it will certainly meet a degree of resistance from the prosecutors’ offices, and risks having the opposite effect (links policies of the Brussels public prosecutor, etc.); — it is an idea that would limit the powers of the prosecutor and the investigating judge (which

distinguishes it from the plea bargain, in which the public prosecutor must always mark its agreement on each file) and that it is therefore preferable to organize a consultation on the matter;

Adapted text "Versnelde en vereenvoudigde afdoening van een strafproces via een akkoord tussen openbaar ministerie en verdachte (krachtlijnen)", email from Mr Raf Verstraeten to the AWDC and Mr Axel Haelterman of 29 August 2007. (AWDC Documentation Appendix 1/ Part 1b). 141 Email from Mr Raf Verstraeten to the AWDC and Mr Axel Haelterman of 29 August 2007. (AWDC Documentation Appendix 1/ Part 1b). 142 Email from Mr Axel Haelterman to Mr Raf Verstraeten and the AWDC of 27 August 2007. (AWDC Documentation Appendix 1/ Part 1b). 140

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— it had therefore been suggested that the Minister of Justice should draw attention to this

problem in his general policy memo and add it to the agenda of the Panel of Prosecutors General by asking him (i) to send him ideas with a view to legislative intervention in order to adequately guarantee the interests of all parties concerned, or (ii) in the alternative, to draw up political guidelines that could be enacted and imposed.”(translation)

295. On 29 August 2007, Mr Axel Haelterman announced, in connection with the work on the two options (seizures and fines that put an end to prosecution/plea bargain) to Mr Raf Verstraeten and Mr Philip Claes of the AWDC: "I have in the meantime contacted van Deurzen and Van Parijs and I await their response."143 On 5 September 2007, Mr Axel Haelterman reported on a meeting with the CD&V delegation (Messrs Van Parys, Vandenberghe, legal staff of the analysis department).144 Mr Jo Vandeurzen was not present at this meeting: "Raf Verstraeten and I have just met Tony Van Parys, Hugo Vandenberghe and the two "Justice" employees of the CD&V and set out the plan for the expedited processing of public prosecutions. The reaction was positive in the sense that comments focused immediately on a few minor technical issues rather than on the acceptability or otherwise of the proposal. They said they were ready to share in the broad outlines of such a vision and work on it but would of course need more time to consider the matter in detail. They also stressed that they reckoned that the socialist parties would on the whole be opposed to it (going by the stances they have adopted in the past). We have explicitly asked them to reflect on how these ideas could at best be realized. They spoke of a possible initiative by the CD&V and the idea of integrating this in the governmental agreement that has also been mentioned. They will certainly react in the next few days, will ask further questions and will indicate how they intend to proceed. I have made it clear that the nature of the matter is such that it requires us to examine it calmly, but that if they feel that it would help, we were to meet other persons, we are willing to do so. We also discussed the idea of seizures, and we noted that our interlocutors realize that the possibilities are endless and create problems for businesses. I consider that the idea of formally adding this point to the agenda of the Panel of Prosecutors General (through the Minister of Justice) has been received favourably. If the CD&V were to inform the Minister of Justice, he would, in my opinion (today confirmed), certainly be disposed to consider the matter favourably. It was an encouraging meeting, overall."145.

E-mail sent by Mr Axel Haelterman to Mr Raf Verstraeten on 29 August 2007. E-mail sent by Mr Axel Haelterman on 5 September 2007. 145 Email sent on Wednesday 5 September 2007 at 4.11pm by Mr Axel Haelterman to Messrs Stéphane Fischer, Freddy Hanard, Raf Verstraeten and Philip Claes. 143 144

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296. In an email dated 30 August 2007, Mr Philip Claes told Messrs Axel Haelterman and Raf Verstraeten: "As you are no doubt already aware, Yves Liégeois, prosecutor general of Antwerp, will chair the Panel of PG146 from 1 September onward. In an interview with GvA147, he specifically mentioned plea bargains, which should be possible at all stages of the proceedings. (...) This is of course in line with our proposal and our strategy."(see observation no. 279 above). 297. According to some witnesses, the two files (plea bargain proposal and proposed seizures) ultimately seek the same objective, namely preventing or limiting seizures. Ms Hildegard Penne, magistrate and former adviser to the Minister of Justice, made the following statement before the enquiry committee: "The extended plea bargain means that a seizure may be released more promptly and that the matter can be dealt with more rapidly. It is indeed a solution for seizures of company assets, which can take several years in cases like these" (translation)148. Mr Freddy Hanard mentioned, before the enquiry committee, a problem (seizures) and possible solutions: "We were looking for a solution. The law on company assets was probably the most straightforward way to arrive at a solution. The extended plea bargain was then mentioned as a possible solution" (translation)149. Concerning plea bargains, he added: "It is true that it was one of the solutions (.)”. (translation). 298. On 16 September 2007, Mr Stéphane Fischler of AWDC sent Mr Axel Haelterman (among others) a newspaper article entitled "Erdman en Visart de Bocarmé werken aan modernisering Justitie". This article stated that Messrs Fred Erdman and Cédric Visart de Bocarmé had been appointed chairman and vice-chairman of the General Council of Partners of the Judiciary, and that the creation of this Council forms a part of the project for modernising the Judiciary.

Prosecutors General. Gazet van Antwerpen. 148 Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 18. 149 Interview of Mr Freddy Hanard, 22 March 2017, CRIV 54 K017, p. 3. 146 147

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The same day, Mr Axel Haelterman responded: "The fact is that Fred Erdman is a member of sp.a, and the socialists do not approve of the extended plea bargain option, nor the plea bargain itself (translation). Even when I contacted him, Mr Erdman was rather negative and unhelpful. He is a member of the political old guard. I am going to consult with Raf Verstraeten, but I think that Van Deurzen would like to take initiatives independently of this body and that we should therefore carry on promoting this case. I spoke briefly with the President of the Belgian Bankers' Association (Febelfin). We agreed to call each other next week. I also contacted Rudi Thomaes of the FEB very informally (which is actually possible with him)".150 299. One can read what follows in the report of the AWDC Board of Directors of 20 December 2007: "A lobbyist is needed to influence the government, a top guy from outside the sector who is not related to any political party."151 Discussions were held within the AWDC about the realization of this project. Messrs Mark Eyskens and Johan Vande Lanotte have been put forward for this lobbying. However, we have not found any notes confirming that this idea has been realized. This is confirmed by staff who were working at AWDC back in 2007.152 300. Mr Axel Haelterman drew up a proposal on seizures for the AWDC in collaboration with Mr Raf Verstraeten.153 Mr Raf Verstraeten consulted with Mr Koen Geens154, who was (also) the head of the socio-economic policy cabinet of the Flemish minister-president at the time. According to AWDC, this proposal came into being at the suggestion of the Flemish Government.155 156

Email from Mr Axel Haelterman of 16 September 2007. Draft Minutes, Meeting of the Board of Directors, 20 December 2007, V. Task force, Police raids. 152 Letter from Mr Ari Epstein to the enquiry committee on 13 April 2017. 153 Supporting documents relating to the invoices of Messrs Axel Haelterman and Raf Verstraeten (documentation of AWDC 2). 154 The supporting documents relating to the invoices of Messrs Axel Haelterman and Raf Verstraeten (AWDC Documentation 2) mention that a consultation was held with Mr Koen Geens on 28 November 2007, 1 November 2007 and 13 December 2007. During his interview Mr Raf Verstraeten stated that he had talked briefly with Mr Koen Geens. 155 Presentation of the â&#x20AC;&#x153;Proposed law on measures relating to the seizure of company property. Preparation of the meeting of the Justice Committee of 14 March 2008", Mr Axel Haelterman, March 13, 2008, AWDC documentation, Appendix 3b). 156 Composition of the Flemish Government at the time: Minister- President Kris Peeters, vice minister-presidents Dirk Van Mechelen, Frank Vandenbroucke, Ministers Bert Anciaux, Geert Bourgeois, Marino Keulen, Kathleen Van Brempt, Steven Vanackere, Hilde Crevits and Patricia Ceysens. 150 151

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301. As regards the continuation of the development of and work on the idea of a fine that puts an end to the prosecution or the extending of the plea bargain, we shall refer to the findings made in the following chapters (see observation no. 324 et seq. below). 2.3. Proposed law on various measures relating to the seizure of company property 157 302. On 21 January 2008, Mr Philip Claes (AWDC)158 tabled a draft text relating to the seizure of company assets to Mr Servais Verherstraeten and Mr Renaat Landuyt. On 22 January 2008, Mr Renaat Landuyt informed Mr Philip Claes that to save time, he would sign the text. He agreed to make contact in order to examine the details. Mr Renaat Landuyt agreed with his colleague Mr Servais Verherstraeten to submit the text directly. Mr Renaat Landuyt also indicated in his reply to Mr Philip Claes: "We also raised the question with French-speaking parties.". Mr Servais Verherstraeten transformed the text received into a draft law. On 24 January 2008 the draft law on various measures relating to the seizure of company assets (hereinafter draft law no. 52 739) was tabled and sent to the House legislative secretariat. On 30 January 2008 Mr Servais Verherstraeten authorized the printing of the draft law, which was thus tabled. This draft law was tabled by CD&V-N-VA, Open Vld, cdH, sp.a-spirit and MR159. It aims, as far as possible, to avoid a straightforward seizure, which can only be executed in certain particularly serious cases or with the approval of an authorized person with solid experience of the business world.160 303. Prior to the filing of the draft law, a consultation was held in Parliament on 24 January 2008 between AWDC and a few members of parliament. Mr Philip Claes gave a report on this meeting at the AWDC Board of Directors meeting of 29 January 2008. He stated that the draft law had been signed by CD&V, Open Vld, sp.a, MR and cdH,, and that the motion would be added to the agenda of the Justice Committee.

Proposed law on various measures relating to the seizure of company property, DOC 52 739/001. Chief Officer Corporate Affairs of AWDC. 159 Mr Servais Verherstraeten (CD&V-N-VA), Ludo Van Campenhout (Open Vld), Melchior Wathelet (cdH), Ms Marie-Christine Marghem (MR), Mr Renaat Landuyt (sp.a-spirit), Bart De Wever (CD&V-N-VA), Ms Katrien Schryvers (CD&V- N-VA) and Mr Jef Van den Bergh (CD&V-N-VA). 160 Proposed law on various measures relating to the seizure of company property, DOC 52 739/001, pp. 4-5. 157 158

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According to Mr Philip Claes the PS did not sign the draft law, but "is apparently not against it”. AWDC wants to invite the "two parties that are backing the proposed law" to Antwerp in order to speed things up. "Their representatives must be convinced of the value of the proposal and their responsibility in the matter."161 304. On 28 January 2008, before Parliament was authorized to print draft law No. 52 739, the Head of Cabinet of the Minister of Justice requested an urgent opinion from the Panel of Prosecutors General and the Central Seizure and Confiscation Organization (OCSC) on the draft Law162. 305. Mr Jo Vandeurzen made the following statement on this subject: "As the draft law appeared to be backed by a broad majority in Parliament, and given the panic that was prevailing in Antwerp about the future of the diamond trade, I assumed that the review by the Justice Committee would not be delayed. Given the Judiciary’s resistance to this proposal, the Cabinet was not inclined to back it. I do not of course recall the exact sequence of events, but like any minister taking a stand at a Committee about a legislative initiative emanating from members of parliament, as soon as this proposal was in review I took the initiative of requesting opinions, especially from the Panel of Prosecutors General.163(translation) 306. On 21 February 2008, the Panel of Prosecutors General and the Central Seizure and Confiscation Organization (OCSC) issued a joint opinion on draft law no. 52 739 on various measures relating to the seizure of company assets, and this opinion was forwarded to the Head of Cabinet of the Minister of Justice.164 According to Mr Yves Liégeois, it should be noted in this regard that the Head of Cabinet requested this urgent opinion because, according to his own statements, the Minister was hosting a delegation of diamond dealers on 22 February 2008, i.e., the next day, and that he needed the opinion for this meeting. The joint opinion of the Panel of Prosecutors General and the OCSC was negative. Although it empathises with the motivation of its authors, the opinion noted that the implementation of the draft law raised a multitude of practical and legal issues.165

AWDC Board of Directors Report, 29 January 2008, AWDC Documentation, Appendix 4. Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014. 163 Interview of Mr Jo Vandeurzen, 10 July 2017, CRIV 54 K051, p. 2. 164 The opinion was sent to the enquiry committee by the Panel of Prosecutors General. 165 Opinion from the Panel of Prosecutors General, p. 12. 161 162

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For example, it stated that the proposed legislation is not necessary, that this proposal is contrary to supreme legal norms (the Constitution and the ECHR) and that it would have a negative impact on the proper administration of justice in criminal matters.166 The public prosecutor said however that it was willing to engage in a constructive dialogue with the representatives of the business sectors affected by seizure of goods of equivalent value (saisie par équivalent).167 307. The FEB backed draft miscellaneous provisions law no. 52 739 on the seizure of company assets, as was apparent from a memo dated 6 March 2008 written by Mr Stefaan Verhamme. In summary, the FEB backed the draft law, while being in favour of a broadening of the definition of company assets in the case of stocks and transferable securities.168 Concerning the FEB’s internal procedure for drafting such a memo, Mr Stefaan Verhamme stated as follows: "When such a memo is written, it is checked, it enjoys broad backing from business federations and is submitted to and approved by the legal affairs committee. It is only then and on this basis that these points of view are circulated externally."169 (translation) 308. The report of the AWDC Board of Directors meeting of 6 March 2008 indicated that a preparatory meeting was also held on 14 March 2008 at the Office of the Minister of Justice, with representatives of the Prosecutors General and the investigating judges, on draft law No. 52 739. A preparatory meeting was also held on 13 March 2008, apparently. Messrs Fred Erdman, Axel Haelterman, De Block and Raf Verstraeten were invited to this meeting. It was also stressed that Unizo, the FEB and VOKA were to be invited to demonstrate that the proposal was of interest to other business sectors.170 309. Mr Axel Haelterman prepared a presentation for the preparatory meeting of 13 March 2008. This presentation, which is in the possession of the enquiry committee, contains, in addition to practical arrangements for the meeting with the Minister of Justice, the background to and state of progress of the draft law.

Ibid., p. 2-12. Ibid., p. 12. 168 Proposed law on various measures relating to the seizure of company assets, the FEB’s point of view FEB, 6 March 2008. 169 Interview of Mr Stefaan Verhamme, 22 March 2017, CRIV 54 K016, p. 3. 170 Draft Minutes, Meeting of the Board of Directors, 6 March 2008. 166 167

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The question that AWDC asked the Judiciary was the following: "Are you willing to cooperate with political leaders and companies in order to improve the procedure? If you are, it would perhaps be appropriate to look at the text and the technical aspects more closely in the context of a small working group that can meet promptly and report to the minister and Parliament in the next thirty days.”(translation) Concerning the persons present at the meeting of 14 March 2008, the last slide indicates that: "The composition of the delegation must reflect the idea that the proposal emanates from the corporate world as a whole, and not solely or mainly from the diamond trade" (translation)171. 310. Subsequent to the opinion from the Panel of Prosecutors General on draft law No. 52 739 a consultation was organised with different actors. Accordingly, on 11 March 2008, Minister Jo Vandeurzen sent an invitation to a consultation to be held in the offices of the Judiciary on 14 March 2008 at 3 p.m. The theme of the consultation was draft law No. 52 739. The following bodies and persons were invited172: — Panel of General Prosecutors: M. Yves Liégeois (chairman); — OCSC: Mr Francis Desterbeck (Director) - was replaced by Ms Pascale Tilliet (liaison officer) and Mr Jan Vandroogbroek (lawyer); — Antwerp Public Prosecutors Office - Mr Bart van Lijsebeth (prosecutor) and Mr Christiaan Nys (Head of the financial division); — Investigating judges: Mr Thierry Freyne (President of the Belgian Investigating Judges Association) - was replaced by Mr Paul van Santvliet (vice-president - investigating judge in Antwerp); — Federal Police: Mr Johan Denolf (Directorate of the fight against economic and financial crime);

Presentation “Wetsvoorstel beslaglegging ondernemingsgoederen. Voorbereiding vergadering Justitie 14 maart 2008", Axel Haelterman, March 13, 2008, AWDC documentation, Appendix 3B). 172 Email from Ms Dorien Geebelen for the attention of Mr Jo Vandeurzen, sent on 11 March 2008, found in the AWDC meeting documentation (Appendix 1: found reporting, Part II). 171

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— Antwerp World Diamond Centre: Mr Jacques Roth (Chairman), Mr Freddy Hanard (Chief Executive Officer) and Mr Philip Claes (Chief Officer Corporate Affairs); — Federation of Belgian Diamond Exchanges: Mr Artur Beller (President); — Freshfield Bruckhaus Deringer: Mr Axel Haelterman. — Belgian Companies (FEB): Mr Stefaan Verhamme (attaché); — Unizo: Mr Jan De Ruyver (adviser); — Cabinet of the Minister of Justice: Mr Jo Vandeurzen (Minister), Mr Herman Dams (Director of the strategy unit) and Ms Hildegard Penne (adviser); — Mr Fred Erdman was supposed to attend but was not present at this time.173 311. According to Mr Jo Vandeurzen, the meeting of 14 March 2008 was mentioned in Parliament. In his response to the parliamentary question from Mr Bert Schoofs, Mr Jo Vandeurzen, referring to the joint opinion of the Panel of Prosecutors General and the OCSC, stated: “Ultimately, the public prosecutor indicated that he was prepared, given the economic reality, to begin a constructive dialogue with the official representative organizations of the economic sectors likely to be harmed as a result of seizures of goods of equivalent value. Further to this proposal by the public prosecutor, all interested parties, both from the legal world (Public Prosecutor's Office, investigating judges and the OCSC) and the financial world (the diamond trade, and also Unizo and the FEB) were invited to an open debate on this issue."174 Mr Jo Vandeurzen explained to the enquiry committee that no criticism of this was expressed in Parliament, and that this proves two things: “firstly, [that] there was a problem and everyone was aware of it, and secondly [that] a structural response on this matter should be for the benefit of a broad base, including within the Judiciary. The resulting conclusion was of course that a massive consultation exercise was necessary, and that is what emerged from this meeting.”175 176

Interview of Mr Chistiaan Nys, 15 March 2017, CRIV 54 K015, p. 3. Justice Committee of 27 May 2008. 175 Interview of Mr Jo Vandeurzen, 10 July 2017, CRIV 54 K051, p. 2. 176 Question No. 15612 of 27 May 2008 by Mr Bert Schoofs to the Deputy Prime Minister and Minister of Justice and the Institutional Reforms on "the criticisms made by the general prosecutor of the Antwerp Court of Appeal relating to the law on diamonds" (CRIV no. COM 222, p. 3). 173 174

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312. Mr Yves Liégeois explained that all the parties expressed their point of view on draft law No. 52 739 during the meeting. It emerged that "the points of view of the public prosecutor's office and the investigating magistrates are diametrically opposed to those from the diamond trade, the FEB and Unizo. The minister himself, Mr Jo Vandeurzen, wondered about the “four eyes principle" - namely the supervisor above the investigating judge - because, as he quite rightly pointed out, this principle is no longer valid if the investigating judge arrests someone, and if in such circumstances the investigating judge is alone. He therefore requested that the consultation with the public prosecutor’s office and the diamond trade be allowed to continue.” (translation)177 313. Several people subsequently reported on the meeting of 14 March 2008. Ms Hildegard Penne still has the handwritten notes she took during this meeting. It had been agreed that in the short term (within one month and a half), three options would be pursued: local consultation in Antwerp between the diamond trade and representatives of the judiciary, consultation at federal level with the Panel of Prosecutors General, the police and business sectors (about investigating judges in general), and the continued drafting by the OCSC of a proposal regarding the management of seizures. Pending the results of these consultations and of the proposal of the OCSC, the draft law had no longer been added to the agenda of the House’s Justice Committee.178 314. In his handwritten report on the meeting of 14 March 2008, Mr Christiaan Nys noted the following, inter alia: "— Vandeurzen: doesn’t understand the principle of four eyes for consultation, nor for arrest.

177

Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 4

178 Timeline and sequence of discussions on the proposed extended plea bargain - overview of work, document sent to the enquiry

committee by Ms Hildegard Penne, p. 2.

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— Vandeurzen asks public prosecutor to hold consultation with diamond trade. PG shares this point of view ("set a date quickly")"179. 315. At the end of the meeting of 14 March 2008, the supporters of draft law no. 52 739 knew that it would not be adopted. Before the enquiry committee, Mr Axel Haelterman expressed this impression as follows: "After this meeting [...], I knew that the Seizures law, such that we would have wished to see it, [ ...] was dead in the water. This was very clear to any sensible person present at the discussion."180 (translation). Mr Axel Haelterman said later that "it was at that point, in May 2018, that attention once again switched to the other idea, the extended plea bargain. I have to say - and I think that Ms Penne has confirmed this - that in December 2008 we tried once again to reactivate the Seizures law, which at the time involved a fast track procedure before the criminal division. Ultimately this attempt failed. To tell the truth, this measure has also been buried because all eyes were focused on the extension of the plea bargain."181 (translation) 316. According to Mr Yves Liégeois, it is emphasized that the consultation would not be prejudicial to the independence guaranteed by the Constitution to the judges in the exercise of their jurisdiction, on the one hand, and of the public prosecutor in its exercise of individual research and cases on the other hand (Article 151 of the Belgian Constitution). According to Mr Yves Liégeois, this proposed dialogue with the business world is necessary in order to block the progress through parliament of draft law No. 52 739. This proposal does have the backing of almost all the parties of the government majority, and even of the opposition party sp.a-Spirit, such that it considers its chances of success to be extremely high.182 At the first local consultation meeting, the judges considered that it had no chance of being passed by Parliament183. 317. Mr Jo Vandeurzen said of the decision to continue the consultation between the public prosecutor's office and the diamond trade as a result of the meeting of 14 March 2008: "The Prosecutor General wishes to consult with the sector and will therefore appoint it; there is a meeting in which everyone is involved and we will conclude with an agreement to organize a consultation and, as far as we are concerned, it is Ms Penne who will monitor it.

Handwritten notes of Mr Christiaan Nys, documentation of the prosecutor general of Antwerp, Appendix 4. Interview of Mr Axel Haelterman, 15 March 2017, CrIV 54 K015, p. 3. 181 Interview of Mr Axel Haelterman, 15 March 2017, CrIV 54 K015, p. 4. 182 Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 5 183 Report of the AWDC Board of Directors of 11 April 2008. 179 180

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It has also been subsequently reported that that would happen. There has been talk of these working groups, that we were going to wait for the report by these working groups. All this took place, with every possibility of an open debate as part of the investigation procedure in Parliament."184 (translation). In his response to the parliamentary question by Mr Bert Schoofs, Mr Jo Vandeurzen stated that as a result of the consultation of 14 March 2008, "a working group [has been] set up, in which an adviser from my strategic unit will take part. This working group has already met several times. The consultation is still in progress. After the recent seizure of a large batch of diamonds, I do not know how this consultation, which has until now taken place in a very constructive environment, is set to proceed. However, I would plead for the separation of powers to be respected. I will outline my point of view all in good time, i.e., when the draft law " - i.e. on seizures - "has been examined by Parliament and we have the results of the working group."185 (translation). Mr Yves Liégeois said, regarding the ongoing consultation between the diamond trade and the public prosecutor's office "that he had proposed something similar during the interview with the Minister of Justice. (...) We agreed to do so, so that we could at least make a reasonable counterproposal. (...) We do not wish industry representatives to be there at all. In other words: I do not think that the presence of industry representatives was standard practice, but given the circumstances, this presence was the result of a consultation with the Minister. It was at that point that someone said that it would be helpful to organize a consultation with the industry."186. Mr Yves Liégeois said on this matter, at the same interview: "That is why, based on our qualification to give an opinion, we have announced our intention to organize a consultation. No cases were discussed during this consultation. The only item that emerged was the proposal to which the public prosecutor's office was favourable, for the reasons that I have set out above."187. (translation). 318. The first local consultation meeting in Antwerp was held on 11 April 2008. Even if the meetings of the local consultation focused on the extension of the plea bargain (see observation no. 324 et seq. below), draft law No. 52 739 was also examined. Mr Yves Liégeois made the following statement on this matter:

Interview of Mr Jo Vandeurzen, 10 July 2017, CRIV 54 K051, p. 23. Justice Committee of 5 November 2008. 186 Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 31. 187 Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 26. 184 185

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"In addition to the review of the proposed extended plea bargain, we also examined whether it would be possible to fast track the summary criminal proceedings (procédure du référé pénal)."188 (translation). According to Ms Hildegard Penne, the option of rewriting the draft law on the seizure of company assets is still being examined, resulting in the draft law on summary criminal proceedings.189 319. The local consultation did not reach an agreement on draft law No. 52 739. This is what emerges from the email sent by Mr Axel Haelterman to Unizo and the FEB, in which he gave an account of the work. On one hand, both the investigating judges and the public prosecutor's office continue to object to it, and on the other hand, the cabinet is asking serious questions as to how assets will be managed in the event of an on-site seizure: "Faced with the observation that in all probability this discussion190 will not result in an agreement on a text, we have therefore decided to change tack vis-a-vis the judiciary, as far as we are concerned. An amended proposal would be drawn up, which would retain the four eyes principle, while placing it immediately after the seizure. […] In practice, this would mean in terms of the seizure of company assets - which compromises or risks compromising the continuity of a business - that the party whose assets are seized could immediately file an application directly with the criminal division, which would be required to schedule the hearing in relation to this request within [15] business days. The proposal would also include the option of seeking and obtaining authorization for consulting the file beforehand with a view to filing the request, without which the request might be insufficiently substantiated due to inadequate knowledge of the details of the case. The idea would be to submit this text to the members of parliament who tabled the original text on the seizure of company assets, and therefore to ensure that it is processed in the form of a draft law (without an inter-office working group and with signatories to guarantee that the text will win the approval of most of the parties). The texts would receive the backing of the Minister of Justice (which would also be new).

Ibid., p. 9. Interview of Ms Hildegard Penne, 15 March 2017, CRIV K015, p. 9. 190 Discussion on draft law No. 52 739. 188 189

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It has been strongly recommended that we abandon the idea of on-site seizures as an alternative technique.” (translation)191. 320. At the meetings of the "criminal proceedings" expert network on 22 January 2009 and 18 May 2009, a preliminary draft on summary criminal proceedings was examined. Mr Raf Verstraeten was present at the meeting on 22 January 2009. This preliminary draft was adopted at the meeting of the Panel of Prosecutors General on 18 June 2009. The President of the Panel forwarded the draft and set out the reasons concerning summary criminal proceedings to the Minister of Justice on 24 June 2009.192 This text was sent to Mr Servais Verherstraeten by the office of the Minister of Justice.193 A draft law amending the Belgian Criminal Investigation Code as regards to summary criminal proceedings in an emergency was tabled on 5 February 2010194 by the CD&V, Open Vld, MR and cdH groups.195 The developments of this proposal explicitly refer to draft law No. 52 739 concerning the same problem. (see observation no. 376 below).196. 321. Several meetings were held in October, November and December 2010 on the subject of this draft law and on the alterations that might be necessary once the opinion of the Council of State has been received197 198. On this matter, Mr Jan Jambon told the enquiry committee: "Meetings were held in October and November 2010 in the presence of Professor Axel Haelterman, Mr Servais Verherstraeten, a CD&V staff member and a N-VA staff member in view of discussing a draft law on summary criminal proceedings."199 (translation).

The same email was sent to Ms Sarah Depreeuw of Unizo a few minutes later. Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 9 193 Interview of Mr Servais Verherstraeten, 17 May 2017, CRIV 54 K032, p. 2. 194 Draft law amending the Belgian Criminal Investigation Code with regard to summary criminal proceedings in an emergency, Parl. doc. House, DOC 52 2404. 195 Mr Servais Verherstraeten (CD&V), Christian Brotcorne (cdH), Daniel Bacquelaine (MR), Ludo Van Campenhout (Open Vld), Jef Van den Bergh (CD&V), Ms Mia De Schamphelaere (CD&V), Mr Kristof Waterschoot (CD&V), Ms Sabien Lahaye-Battheu (Open Vld). 196 Draft law amending the Belgian Criminal Investigation Code with regard to summary criminal proceedings in an emergency, Parl. doc. House, DOC 52 2404, p. 5. 197 Opinion No. 47 884/2 of the Council of State dated 17 March 2010. 198 Interview of Mr Servais Verherstraeten, 17 May 2017, CRIV 54 K032, p. 14-15; interview of Mr Jan Jambon, 22 May 2017, CRIV 54 K034, p. 7; interview of Mr David Rombouts, 22 May 2017, CRIV 54 K034, p. 11. 199 Interview of Mr Jan Jambon, 22 May 2017, CRIV 54 K034, p. 2. 191 192

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At the enquiry committee, Mr Servais Verherstraeten referred to a meeting on 14 December 2010 and to the invitation to discuss the draft law amending the Belgian Criminal Investigation Code with regard to summary criminal proceedings in an emergency200 sent to several of his colleagues, namely Ms MarieChristine Marghem, Mr Daniel Bacquelaine, Mr Renaat Landuyt, Mr Christian Brotcorne, Mrs Sabien Lahaye-Battheu and Mr Jan Jambon, as well as to MR, cdH, sp.a, and N-VA staff members. 322. On 14 December 2010, Mr Axel Haelterman reported to AWDC on this meeting organised in the House. The PS and sp.a were not present at the meeting. The text relating to seizures was tabled and CD&V went in search of signatures (with the agreement of NVA and Open Vld). He wrote that he intends to contact Mr Landuyt to explain to him why the text relating to seizures is a good text that deserves to be signed (and to receive the backing of sp.a in Parliament). He went on to say that the text relating to "seizures" will probably be tabled during the first week of January201. Sp.a did not sign off the draft law. No initiative was taken after this draft law was tabled, which lapsed at the end of the legislature202. 323. The draft law amending the Belgian Criminal Investigation Code with regard to summary criminal proceedings in an emergency was discussed on 30 March 2010 by the Justice Committee of the House of Representatives. This discussion did not result in a vote. Draft miscellaneous provisions law No. 52 739 relating to the seizure of company assets was never discussed by the House of Representatives. The two draft laws were declared null on 7 May 2010 following the dissolution of the Houses. The draft laws will therefore never become laws.

Hearing of Mr Servais Verherstraeten, 17 May 2017, CRIV 54 K032, p. 15-16. Email of 14 December 2010 from Mr Haelterman (AWDC documents). 202 Interview of Mr Jan Jambon, 22 May 2017, CRIV 54 K034, p. 7. 200 201

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3. Preparation of the preliminary draft for broadening plea bargains 3.1. Local consultation in Antwerp 324. Further to the meeting on 14 March 2008 (see observation No. 310 et seq. above), a local consultation platform was set up in Antwerp at the request of the Minister of Justice. 325. The local consultation platform in Antwerp met on 11 April 2008, 18 June 2008 and 10 September 2008. Mr Raf Verstraeten was present at each of these meetings and billed AWDC for his services. 326. The first local consultation meeting was held on 11 April 2008. According to the attendance sheet, the following persons were present: Messrs Flor de Mond, Christiaan Nys and Dirk Schoeters (Antwerp prosecutor’s office), investigating judge Paul Van Santvliet, Ms Hildegard Penne for the office of the judiciary, and for the AWDC: Messrs Jacques Roth, Freddy Hanard and Philip Claes and Mr Raf Verstraeten as AWDC’s lawyer and counsel203. Mr Axel Haelterman was not present at this consultation. Apart from the diamond trade, no other industry organization was involved in this first consultation. Mr Yves Liégeois said on this matter: “On this matter, we note that the composition of this meeting is the guarantor of the transparency sought by the Public Prosecutor’s Office, in view of the sensitive nature of the project, the manner in which draft law No. 52 739 has been drafted and the fact that it has been signed by the Parliamentary majority parties.”204 (translation). 327. The report of the Public Prosecutor's Office during the meeting of 11 April 2008 is entitled "Public Prosecutor's Office Meeting - diamond sector - Justice SPF". "The action and involvement of the Public Prosecutor's Office must be as relevant as possible in company terms (reasonable delay/sanction/compensation) and they say that they are in favour of an extended plea bargain option, also during the investigation phase and within a reasonable period of time" (translation). Ms Hildegard Penne "read the proposal of the Public Prosecutor's Office concerning the extended plea bargain with interest, but pointed out that in terms of legislation, it will not be done overnight" (translation). The public prosecutor concluded the meeting with these words: "The ball is now in the court of the sector concerned:

203 204

Documents sent by the prosecutor general at the Antwerp Court of Appeal. Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 6

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the public prosecutor is waiting to see whether the latter accepts the principle of the extended plea bargain" (translation).205 328. Investigating judge Paul Van Santvliet responded to the statement by Mr Philip Claes of AWDC, according to which "there may currently be a possibility of a consultation on the involvement of the judiciary", that it is “out of the question that we discuss individual cases without talking about it, and that it is also out of the question that we intervene in this field". Before the enquiry committee, Mr Yves Liégeois said the following on this matter: "In my opinion, what interested AWDC was not the draft law on the extended plea bargain, but the opportunity to raise certain cases through this consultation. That is my impression. These intentions have been thwarted. All they were able to do was talk about draft laws, about a text of theirs that we categorically reject, challenged by the public prosecutor's office, and another text, for which the public prosecutor indicated that he had another proposal."206 (translation). 329. Mr Yves Liégeois told the enquiry committee: "I don’t know whether AWDC had already made such a proposal years earlier in a memorandum. In fact, I only heard this thanks to your work following my interview and by reading what appeared in the press on this matter. We never knew that it concerned a point of the memorandum. I knew nothing about it."207 (translation) We wrote our plan and were absolutely convinced that it was a good plan. I think we cannot deny the truth. It has helped move us forward appropriately in numerous cases. For us, long before all these issues, it was a plan that we wanted to push through for many years. As far as I am concerned, I couldn’t care less whether the diamond dealers or others are interested"208. 330. A meeting of the AWDC Board of Directors was scheduled for 29 April 2008. The slides in Mr Axel Haelterman’s presentation summarize AWDC’s new strategy. As draft law no. 52 739 was blocked in Parliament, it was a matter of making the most of the "momentum" for obtaining the proposal of the extended plea bargain under certain conditions.

Analytical "local consultation platform MP - diamond sector - Justice SPF” report of 11 April 2008 (Source: documents sent by the prosecutor general at the Antwerp Court of Appeal). 206 Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 23 207 Interview of Mr Yves Liégeois, 21 March 2017, CRIV 54 K043, p. 2 208 Ibid., p. 11. 205

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On the impact of this proposal on the Monstrey cases, the following was written: "to be discussed with the prosecutors."209 210 331. With the second local consultation imminent, on 13 June 2008, Mr Axel Haelterman insisted that the public prosecutor Christiaan Nys should also invite Unizo. According to Mr Axel Haelterman, the objective is not to hamper the discussion (the subject will be provided primarily by AWDC lawyers), but to involve them in the discussion so that they provide the necessary support at a later stage211. 332. On 18 June 2008 a second local consultation meeting took place. Present at the meeting: Messrs Flor de Mond and Christiaan Nys for the Antwerp prosecutor's office, Mr Paul van Santvliet for the investigating judges, Mrs Hildegard Penne for the office of the judiciary, Mr Stefaan Verhamme of the FEB, and for AWDC: lawyers Axel Haelterman and Raf Verstraeten, and Directors Jacques Roth and Freddy Hanard. At the second meeting of on 18 June 2008, the diamond dealers said they were favourable to the extending of the plea bargain, and Mr Raf Verstraeten was tasked with drafting a text.212

Presentation by Freshfields Bruckhaus Deringer to the meeting of the AWDC Board of Directors on 29 April 2008, documentation sent by AWDC. 210 The fourth slide of the presentation contains the following text: "Use momentum for sufficiently strong parallel proposal on "plea bargaining" In cases where the financial damage is repaired: which means: an agreement was reached with tax people and agreed amount was paid Basic rule: admitting the offence, but no further criminal follow-up (=suspension of the case) Unless there are aggravating circumstances that surround the facts (must be shown by the authorities) Impact: Not possible for other than financial crimes Basic discussion: with tax authorities, criminal proceedings are then stalled Will this be acceptable? Fall back: negotiated fine, which as a rule would be x% of the basic fine (e.g. 10% - 25%) unless aggravating circumstances have an impact on the Monstrey cases: to be discussed with the prosecutors…". 211 Email of 13 June 2008 from Mr Axel Haelterman to Mr Christiaan Nys (source: documents sent by the prosecutor general at the Antwerp Court of Appeal). 212 Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 3: "Present at the meeting: Ms Hildegard Penne, Messrs Flor de Mond and Dirk Schoeters for the Antwerp general prosecutor’s office, Mr Chris Nys for the prosecutor’s office of First Instance, and Paul Van Santvliet was present on behalf of the Association of Investigating Judges. This is in addition to the representatives of the diamond trade, of whom there were three: Messrs Roth, Hanard and Claes, their lawyers Messrs Raf Verstraeten and Axel Haelterman, and for the FEB Mr S. Verhamme.” (translation) 209

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333. During this same period (May-June 2008), the fraud prevention panel was working on drafting of an initial action plan, which also included a point relating to the extension of the plea bargain, which was added at the suggestion of Mr Patrick De Wolf, magistrate in the prosecutor general’s office at the Brussels Court of Appeal. (see observation no. 348 et seq. below). 334. On 18 July 2008, Mr Philip Claes (AWDC) sent Mr Christiaan Nys, Mr Flor de Mond (Public Prosecutor’s Office), Ms Hildegard Penne (Justice office) and Mr Paul van Santvliet (Association of Investigating Judges) an email, with in cc: Messrs Axel Haelterman, Raf Verstraeten and Freddy Hanard (AWDC), "a first draft of text relating to the extension of the rules governing plea bargains" (translation). The attached document is entitled "Fast-tracked settlement" (translation).213 The note was written by Mr Raf Verstraeten. 335. On 25 July 2008, Mr Flor de Mond sent Mr Raf Verstraeten a letter of which the subject was the "extended plea bargain": "I have received from Mr Claes a document on the above subject; he told me that you were its author. The outlines correspond closely to the vision set out in the plan for the modernization of the public prosecutor's office and to that of Mr Liégeois, President of the Panel of Prosecutors General" (translation). Mr Raf Verstraeten was invited for a personal consultation with the Prosecutor General Yves Liégeois in order to save time during the (third) local consultation of 10 September 2008 and with the aim of prompt implementation in legal and technical terms214.

Email from Mr Philip Claes of 18 July 2008 (source: documents sent by the prosecutor general of Antwerp; found in Part II of the AWDC report). 214 Letter from Mr Flor De Mond to Mr Raf Verstraeten dated 25 July 2008. - Documentation sent by the prosecutor general at the Antwerp Court of Appeal. 213

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The bilateral consultation was held on 4 August 2008215. Addressing the enquiry committee, Mr Yves Liégeois added that in his opinion the memo from Mr Raf Verstraeten was academic in nature and general in scope, and largely exceeded the extent of the specific problem of the diamond trade.216 For the bilateral consultation with Mr Yves Liégeois, Mr Raf Verstraeten billed the AWDC for his services.217 336. Shortly before the third and final meeting on the local consultation platform, an informal meeting was held on 4 September 2008 between the public prosecutor's office and the tax office in order to examine the role the tax office could play in the plea bargain arrangements. With regard to the Parties present at this meeting, Mr Christiaan Nys said: "If you look at the composition of the Panel at this meeting, you will see that there were only two persons from the ISI and the rest were all auditors and senior auditors. If it had been only for diamond dealers, I can assure you that we would only have talked to the 3rd ISI of Antwerp. However, we talked to everyone, and therefore with people who had, shall we say, never even heard of a diamond dealer in the course of their duties" (translation)218. The background to the problem was explained during the meeting, and in particular that an amendment of the law in order to limit the possibilities of seizure by the Judiciary "was the result of a lobbying campaign conducted by the diamond trade and that this law was drafted by Axel Haelterman and Raf Verstraeten", and that the draft law had not been adopted. "The Antwerp prosecutor’s office has made a counter-proposal that may placate the diamond dealers, namely the plea bargain". According to former public prosecutor Christiaan Nys, "the Antwerp prosecutor’s office then asked Messrs Axel Haelterman and Raf Verstraeten to redirect their lobbying capacity in order to promote the counter-proposal of the magistrates with policy makers.” (translation).219

Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015 and Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014. 216 Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014. 217 Supporting documents relating to the invoices of Messrs Axel Haelterman and Raf Verstraeten (AWDC documentationAppendix 20). 218 Interview of Mr Christiaan Nys, 15 March 2017, CRIV 54 K015, p. 10 219 "Informal meeting with the prosecuting magistrates" report (sources: documentation sent by ISI, documentation sent by the Prosecutor General at the Antwerp Court of Appeal) Present at the meeting: Messrs Christiaan Nys, Flor de Mond, Jan Helsen and Bob Tilkin (ISI), Head of CC Turnhout (Jef), Head of CC Antwerp, Lucien Jacques, Pierre Herremerre, François van Noten, Joris Hellemans, William Aps, Danny (Antwerp I). 215

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337. Mr Yves Liégeois said on this matter: "I have distanced myself from these impulsive remarks, which can only be understood in light of the question that members of the Public Prosecutor's Office had asked during the meeting of 11 April 2008. They had indeed stated, and I quote, that: “the ball [was] now in the court of the sector concerned. the public prosecutor expects the industry to accept, in principle, the idea of the extended plea bargain". If policy is prepared to alter the possibilities for seizure, it may also be willing to introduce the extended plea bargain”. (...) "It was therefore clear that the public prosecutor's office did not support the diamond trade’s proposal concerning company assets, but as an alternative was prepared to back the proposed extended plea bargain, in accordance with the plans for these issues that had been on the table at the public prosecutor's office for years"220. Mr Yves Liégeois also said on this matter: "I would like to return for a moment to the matter of the role played by the diamond trade in the amendment of Article 216a concerning the extension of the plea bargain. I would stress above all that the preliminary draft initiative emanated from the public prosecutor's office rather than AWDC. This project pre-dates draft law No. 52 739 by several years and is completely separate from the issue of the diamond traders221". 338. On 8 September, Mr Christiaan Nys informed the financial and tax crime division of the Antwerp prosecutor's office about it. "Mr Nys informed the meeting attendees that the proposal for concluding a plea bargain (...) was examined by the representatives of the diamond trade and their lawyers - lobbyists, and by the representatives of the Antwerp judiciary. The diamond trade insists on the need to adopt a proposal on this matter and is probably willing to mobilize its impressive lobbying capacity to this end".222 339. The third and final meeting on the local consultation platform was held on 10 September 2008 and the memo from Mr Raf Verstraeten on an extended plea bargain is then examined.

Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 12 Ibid., p. 10. 222 Documentation sent by the prosecutor general at the Antwerp Court of Appeal. 220 221

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During the interview, Ms Hildegard Penne stated as follows on this matter: "It was agreed that as far as possible the expectations of the investigating judges should be met, and that this would be done by Mr Raf Verstraeten, who would knock together some components in the form of an actual draft law by the end of October 2008.” (translation)223 340. With regard to the extended plea bargain, according to Mr Yves Liégeois: "only the investigating judges objected for the most part to the proposal, claiming that the proposed system diverged from the existing system, it would be limited to the disclosure provision phase, possibly with a veto for the investigating judge and, lastly, that it posed a risk of class-based justice"224. 341. During November 2008 Mr Raf Verstraeten converted his memo concerning the extension of the plea bargain into a draft law225 and sent it on 18 November 2008 to Messrs Axel Haelterman and Philip Claes of AWDC226. Mr Raf Verstraeten explained that: "The text has thus, as far as possible, been tailored on the basis of a discussion at the political level, primarily in the hope that the political considerations likely to result in such an amendment have been sufficiently highlighted.” (translation) Mr Raf Verstraeten stated that the time had come to ask the policy makers to launch the parliamentary procedure and added that he wished to book a consultation with Ms Hildegard Penne. 342. The text, in the form of a draft law by Mr Raf Verstraeten, written on the basis of his memo and discussed at local consultation meetings in Antwerp, was also discussed at the meeting of the fraud prevention panel’s working group (see observations nos. 344 et seq.), and at the meetings of the expert network of the Panel of Prosecutors General (see observations no. 361 et seq.). This text by Mr Raf Verstraeten also served as the basis both for the draft text of the public prosecutor's office and for the draft text of the fraud prevention panel’s working group. 343. With regard to above text by Mr Raf Verstraeten, Mr Yves Liégeois said: "I simply do not understand on what basis they are asserting that it was a document tailored specifically for the diamond trade.

Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 4: Ibid., p. 7. 225 Supporting documents attached to the invoices of Messrs Axel Haelterman and Raf Verstraeten (AWDC documentationAppendix 2). 226 Email from Mr Raf Verstraeten to the AWDC and Mr Philip Claes of 18 November 2008; source: found AWDC report - part II. 223 224

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It was certainly written and tabled by Mr Raf Verstraeten, I admit, but I see it as a purely academic document. To be honest, I do not know how the articles 216 and 216a could be amended otherwise (.) to make it possible to arrange an extended plea bargain, even after the case had been referred to a judge. These amendments must be made verbatim in this way in the law because it is the only way possible. I do not therefore think that one can say of the final product that it was specifically drafted by or for the diamond trade or by its lawyer. I consider that convergent draft laws were tabled by both sides. I think that as a public prosecutor's office we were able to submit our opinion to the minister in the manner we wished."227. (translation). 3.2. The Panel's Working Group on plea bargains in the fight against tax and social security fraud 344. The governmental agreement of 20 March 2008 provided for the creation of a tax and social security fraud prevention Panel (hereinafter the “fraud prevention” Panel) involving all the departments concerned by the fight against social security and tax fraud. This Panel was placed under the authority of a Ministerial Committee for the fight against social security and tax fraud (hereinafter the "fraud prevention" Ministerial Committee). The Panel and the Committee were created by royal decree published in the Moniteur Belge of 8 May 2008.228 345. Also present at the meetings of the "fraud prevention" Panel were the members of the Panel of Prosecutors General, which, in accordance with the royal decree of 6 May 1997 concerning the specific tasks of the members of the Panel of Prosecutors General, were given specific tasks in the field of social security and tax fraud, namely Messrs Marc de le Court (Prosecutor General at the Brussels Court of Appeal) and Cédric Visart de Bocarmé (Prosecutor General at the Liège Court of Appeal), as well as the Federal Prosecutor, Mr Johan Delmulle,229 230 in his capacity as representative of Prosecutor General Marc de le Court, Mr Patrick De Wolf,

Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 31 Interview of Mr Bart Vandenberghe, 10 May 2017, CRIV 54 K030, p. 2. 229 Documents from former members of the Devlies office, sent to the enquiry committee. 230 Interview of Mr Carl Devlies, 12 July 2017, CRIV 54 K052, p. 2. 227 228

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general counsel at the Brussels Court of Appeal and President of the Ecofin-Fisc expert network, participated in the meetings of the "Fraud Prevention" Panel.231 Mr Patrick De Wolf also acted as liaison magistrate with the strategy unit of the State Secretary for coordination of fraud prevention, Mr Carl Devlies. He was appointed to this role by the Panel of Prosecutors General, of which he was a member.232 Mr Patrick De Wolf did not attend the office’s weekly staff meetings. Mr Bart Vandenberghe, head of State Secretary Devlies’ office, confirmed: "We used to hold a staff meeting every Monday morning. Mr Patrick De Wolf was never there. Nor did he work under the authority of the State Secretary. He was really a genuine liaison person with the office.” (translation)233 346. The "Fraud Prevention" Panel has been tasked with drawing up an action plan each year, to be submitted to the "fraud prevention" ministerial committee for approval. In fact, two action plans have been drafted and approved: the 2008-2009 action plan (which comprised 58 points) and the 2009-2010 action plan (which comprised 50 points). The implementation of the measures contained in the action plans has been entrusted to project leaders at the offices concerned, overseen by a "Programme Management Office (PMO)".234 This PMO was the responsibility of a member of the "Fraud Prevention" Panel tasked with carrying out a specific series of projects.23 347. The first meeting of the "fraud prevention" Panel took place on 14 May 2008. At this meeting, the State Secretary Carl Devlies asked the members of the College to submit proposals for short-term and long-term measures to be included in the 2008-2009 Action Plan, by 23 May 2008 at the latest.236 348. On 28 May 2008, in response to the request of the State Secretary, the office of the prosecutor general of the Brussels Court of Appeal proposed the following measure in particular: "offering the option of compromise in relation to tax offences, even after prosecution has been initiated"

Documents from Mr Patrick De Wolf, sent to the enquiry committee, Part 1, p. 5. Interview of Mr Bart Vandenberghe, 10 May 2017, CRIV 54 K030, p. 3. 233 Ibid., p. 19; interview of Mr Patrick De Wolf, May 10, 2017, CRIV K030, p. 18. 234 Ibid. 235 Interview of Mr Bart Vandenberghe, 10 May 2017, CRIV 54 K030, p. 4. 236 Documents from Mr Patrick De Wolf sent to the enquiry committee, Part 1, p. 15. 231 232

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(i.e., the extended plea bargain)237. The footnote on page 13 of the memo states: "Given that it would be a procedures law, it would be applicable immediately and would therefore apply to cases currently announced for all intents and purposes by the investigating judge." When it was suggested to keep the "extended plea bargain" as an action point, the first local consultation meeting in Antwerp on 11 April 2008 had already been held (see observation No. 326 above). 349. The action points proposed were reviewed by the "fraud prevention" Panel on 28 May and 11 June 2008. On 25 June 2008, the "fraud prevention" Panel approved a draft action plan. The "fraud prevention" Ministerial Committee took note of this action plan, which meant in practice that the 20082009 Action Plan could be implemented, taking into account a number of draft texts by members of the government. As regards point 3.11 "Review of the option for the public prosecutor's office of compromising on tax offences, even after a prosecution has been initiated" (also known as "proposal 37"), the members of the "fraud prevention" ministerial committee did not propose making changes to the text.238 It appears that there was a consensus within said ministerial committee and that action point 3.11 won the approval of its members.239 Further to the meeting of the "fraud prevention" ministerial committee on 2 July 2008, the 2008-2009 Action Plan was presented to the press by State Secretary Carl Devlies in the presence of other members of the government.240 350. At the Panel’s next meeting, which was held on 3 September 2008, the PMO and the project leaders were appointed to implement the various points in the Action Plan. For proposal 37 (action point 3.11), Mr Patrick De Wolf was appointed PMO, while the management of the project was entrusted to the Criminal Policy Division.241 242

Documents from former members of Mr Carl Devlies’ office, sent to the enquiry committee. Documents from former members of Mr Carl Devlies’ office, sent to the enquiry committee. 239 Interview of Mr Bart Vandenberghe, 10 May 2017, CRIV 54 K030, p. 4. 240 Documents from Mr Patrick De Wolf sent to the enquiry committee, Part 1, p. 17. 241 Documents from Mr Patrick De Wolf sent to the enquiry committee, Part 1, p. 21. 242 Interview of Mr Bart Vandenberghe, 10 May 2017, CRIV 54 K030, p. 4. 237 238

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Next, the management of the project was transferred to the legislative department of the Justice SPF, where Mr Steven Limbourg, a member of this department, took on the leadership of the working group.243 351. The implementation of the points in the action plan was monitored using a system of followup sheets.244 On 26 September 2008, a follow-up sheet was drawn up for proposal 37 by the PMO, Mr Patrick De Wolf. This sheet mentions, as members of the working group, sponsor Mr Patrick De Wolf and project leader Mr Steven Limbourg of the Legislative Department of the Justice SPF, Ms Hildegard Penne of the Justice Strategy Unit, Mr Flor de Mond (first general counsel at the Antwerp Court of Appeal), Mr Jean Lotz (general counsel for the ECOFINFISC expert network of the Panel of prosecutors general), and three officials of the Justice SPF. Mr Eric Formanoir was the contact person for the Justice Strategy Unit; Mr Bart van Humbeeck was the contact person for State Secretary Carl Devlies’ Strategy Unit. As the first step on the timetable, the sheet indicated "verification of discussions already held", with as “completion date" the week of 22 September 2008. As the second step, the sheet listed a "preparatory meeting and discussion of the ways in which this point could be achieved" with the goal of completion by the week of 13 October 2008.245 246 352. During the meeting of the "Fraud Prevention" Panel of 1 October 2008, Mr Patrick De Wolf said, concerning proposal 37 (extended plea bargain): "An important issue is the question of whether the plea bargain should be limited to tax and social security offences, or should be extended to include almost all offences. Discussions have already been held on this subject in the judicial district of Antwerp. These discussions could be useful for the proposal" (translation).247

Interview of Mr Patrick De Wolf, 10 May 2017, CRIV 54 K030, p. 8. Interview of Mr Bart Vandenberghe, 10 May 2017, CRIV 54 K030, p. 5. 245 Documents from Mr Patrick De Wolf sent to the enquiry committee. 246 Both Mr Flor de Mond and Ms Hildegard Penne were associated with the local consultation in Antwerp concerning the extension of the plea bargain, which met for the third and last time on 10 September 2008 and examined the draft text by Mr Raf Verstraeten on the extended plea bargain. (see observation No. 339 above) 247 Documents from former members of Mr Carl Devlies’ office, sent to the enquiry committee. 243 244

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353. On 24 October 2008, a preparatory meeting was held between the competent offices to discuss proposal 37.248 354. In the general policy memo of Minister of Justice Jo Vandeurzen dated 5 November 2008, there is a separate item "5.2.3. Extension of amicable agreement and plea bargain options by the public prosecutor". The minister said that he was studying the proposal to give the public prosecutor the option of concluding an amicable agreement or offering a deal even after a prosecution had been initiated.249 In his general policy memo the minister also refers to the "Justice Dialogues" of Messrs Fred Erdman and Georges de Leval, the plan of the Panel of Prosecutors General for the "Outlines for a strategic plan for the modernization of the public prosecutor's office" and the Panel’s action plan to combat social security and tax fraud. This legislative change would address the issue of unreasonably long criminal proceedings, would free up the criminal courts to spend more time on other cases, would offer the Public Prosecutor an additional opportunity to develop a penal policy, would contribute to rapid and effective collection of sums of money and, lastly, would stimulate the transformation from "imposed" justice towards a more "consensual, restorative" justice.250 355. The working group set up to implement action point 3.11 (proposal 37) then met on 4 November and 2 December 2008. With regard to the meeting on 4 November, Mr Patrick De Wolf stated in a memo of 6 November 2008 addressed to Prosecutor General Marc de le Court, in preparation for the meeting of the Panel of Prosecutors General on 7 November 2008: "A very constructive and fruitful meeting took place this Tuesday 4 November between all members of the working group. A draft amendment of article 216a of the Belgian Criminal Investigation Code had already been drafted and discussed. It was proposed to allow the extended plea bargain as long as there was no final decision. Given the importance of this point in the action plan, it seemed necessary to keep the panel of prosecutors general up to date on the progress of this particular point and to propose also that the criminal procedure expert network of which Prosecutor General Mr Liégois of Antwerp is the main coordinator should also examine this option of amending Article 216a C.I.Cr. so that the public prosecutors to speak with one voice."251

Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 5. General Judiciary Policy Memo dated 5 November 2008, Doc 52 1529/016, p. 67-68. 250 Ibid. 251 Documents from Mr Patrick De Wolf sent to the enquiry committee, Part 1, p. 31. 248 249

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356. The 2008-2009 action plan was formally approved by the Ministerial Committee for the fight against fraud on 14 November 2008. With regard to the text of which the Ministerial Committee took note on 2 July 2008, a few insignificant changes were made. Be that as it may, action point 3.11 relating to the extension of the plea bargain remains unchanged.252 357. On 19 November 2008, Mr Steven Limbourg, project leader of action point 3.11 (proposal 37), sent an email to the members of the working group informing them that the next meeting of the group would take place on 2 December 2008. He attached to this message a text by Mr Raf Verstraeten "on the same topic as the one that served as the basis of the current proposals" (translation)253. By "current proposals” he meant the text as it was discussed at the meeting of 4 November 2008 and the text of the "Criminal Procedure" expert network of the Panel of Prosecutors General.254 358. On 28 November 2008, Mr Steven Limbourg sent another email to the members of the proposal 37 working group. It was in this email that the text revised after the meeting of 4 November 2008 was circulated. It was also indicated that the text of the criminal procedure expert network of the Panel of Prosecutors General had been circulated earlier. For the rest, it was a matter of "wait for Raf Verstraeten’s draft text.” (translation)255 The abovementioned draft text was drafted by Mr Raf Verstraeten during November 2008 in connection with the local consultation in Antwerp (see observation No. 339 above). On 26 November 2008 Mr Raf Verstraeten sent the above draft text to Ms Penne, ahead of their meeting on 4 December 2008. (see observation no. 341 above). 359. The next meeting of the working group was held on 2 December 2008.256

Interview of Mr Bart Vandenberghe, 10 May 2017, CRIV 54 K030, p. 5. Documents from Mr Patrick De Wolf sent to the enquiry committee, Part 1, p. 35. 254 Ibid. 255 Ibid. 256 Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 5. 252 253

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360. Next it was the working group set up by the "Fraud Prevention" Panel, for the last time on 22 January 2009. This was a joint meeting with the Criminal Procedure and Criminal Policy expert network of the Panel of prosecutors general (see observation no. 368 below).257 3.3. Work within the criminal procedure expertise network of the public prosecutor's office 361. The Panel of Prosecutors General discussed the extended plea bargain at its meetings on 7 November 2008 and 19 February 2009.258 The Criminal Procedure and Criminal Policy expert network (hereinafter “Criminal Procedure expert network”) of the Panel of Prosecutors General discussed the extended plea bargain at its meetings of 18 November 2008 and 22 January 2009.259 362. On 7 November 2008 the extended plea bargain was discussed at the meeting of the Panel of Prosecutors General. During the discussion on progress in relation to the points in the 2008-2009 Action Plan of the fraud prevention Panel, Mr Patrick De Wolf drew to the attention of Mr Yves Liégeois, Prosecutor General at the Antwerp Court of Appeal and principal coordinator of the criminal procedure expert network, the possible broadening of the scope of application of the plea bargain.

This meeting was attended by: Mr Y. Liégeois, Prosecutor General in Antwerp, main Coordinator; Mr F. de Mond, First General Counsel at the Antwerp Court of Appeal; Mr L. Oldenhove, General Counsel at the Mons Court of Appeal; Mr P. Kenis, General Counsel at the Ghent Court of Appeal; Mr J.-B. Andries, General Counsel at the Liège Court of Appeal; Mr J. Lotz, General Counsel in Brussels; Mr P. Erauw, General Counsel in Brussels; Mr P. De Wolf, liaison magistrate on the tax and social security fraud prevention Panel; Mr P. Vandenbruwaene, General Counsel at the Antwerp Court of Appeal; Mr P. Vanderheyden, General Counsel in Liège; Mr L. Nouwynck, General Counsel in Brussels; Mr B. Backx, deputy public prosecutor general in Antwerp; Ms D. Reynders, General Advisor, Criminal Policy division; Ms. E. Pantelis, Criminal Policy division; Ms. L. Mainfroid, Justice SPF; Ms N. Colpaert, Justice SPF; Mr S. Limbourg, DGWL Advisor; Ms. H. Penne, Advisor to the Minister of Justice; Mr R. Verstraeten, Extraordinary Professor at K.U.L.; Mr M. Simon, Head of Tax Affairs, Finance SPF; Mr P. Van Buggenhout, National Chamber of Court Bailiffs; Mr P. Robert, jurist at the secretariat of the Panel of Prosecutors General; Ms M. Melis, Assistant Advisor at the secretariat of the Panel of Prosecutors General. 258 Letter from the Panel of Prosecutors General to the enquiry committee dated 14 March 2017. 259 Ibid. 257

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Mr. Yves Liégeois said that this point would be dealt with at the next meeting of the coordinating team, scheduled for 18 November 2008.260 363. On 18 November 2008 the extended plea bargain was discussed at the meeting of the Criminal Procedure expert network. Mr Flor de Mond, First General Counsel of the Antwerp Court of Appeal, set out in detail two proposals to amend article 216a of the Belgian Criminal Investigation Code which was intended to allow more extensive use of plea bargains. These two proposals were probably the following: first, the text examined during the meeting of the "Proposal 37" working group of 4 November 2008 and the text of the Criminal Procedure expert network (see observation No. 355 above). The principles of the extended plea bargain would be the following: • a deal is possible at any stage of the investigation procedure; • all offences are eligible (not just social security and tax offences, in order to avoid any accusation of class-based justice); • the role of the investigating judge is advisory only; • it is the responsibility of the accused to act of his own volition; • The public prosecutor acts as contact person between the aggrieved person (usually the Belgian State) and the accused, who must conclude an agreement on compensation; • The judge shall rule that the public prosecution has ended if it is at or after the investigation stage. 364. During the meeting, discussions focused on the following issues: the initiative of the accused, the opinion of the investigating judge and the role of the Public Prosecutor. The conclusion of this meeting was as follows: "The texts will be finalized taking into account the remarks of the expert network and others to this end, forwarded to the members of the expert network after dealing with the remarks already made" (translation).261

Letter from the panel of prosecutors general to the enquiry committee dated 14 March 2017 (Report on the meeting of the Panel of Prosecutors General of 7 November 2008). 261 Letter from the panel of prosecutors general to the enquiry committee dated 14 March 2017 (Report on the meeting of the Criminal Procedure expert network of 18 November 2008). 260

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365. On December 4, 2008, a meeting was held at the judicial strategy unit between Ms Hildegard Penne, Mr Axel Haelterman and Mr Raf Verstraeten. Prior to this meeting, on 26 November 2008, Mr Raf Verstraeten sent his revised text on the extended plea bargain to Ms Hildegard Penne, together with a draft text of an amendment of article 216a C.i.cr.262 It was, in other words, a text drafted by Mr Raf Verstraeten during November 2008 in connection with the local consultation in Antwerp (see observation no. 341 above) which served as the basis of the draft presentations of the reasons and the draft text of the law. With the agreement of Mr Raf Verstraeten, Ms Hildegard Penne sent this text by email to Mr Yves Liégeois on December 11, 2008, indicating that Mr Raf Verstraeten had agreed to these texts being used and distributed to the members present at the meeting of the criminal procedure expert network and that Mr Raf Verstraeten would like to be invited to its next meeting.263 366. On 5 December 2008 Mr Axel Haelterman sent a report to Unizo and to the FEB on the meeting of 4 December 2008. It stated that three different groups are preparing texts on the extended plea bargain: the working group tasked with examining proposal 37 of the 2008-2009 Action Plan, the Antwerp working group and the public prosecutor’s working group. According to Mr Axel Haelterman, it was decided to combine the work of the working group tasked with focusing on proposal 37 of the 2008-2009 Action Plan with that of the public prosecutor's working group and to get these two groups working on a single text. In his report, Mr Axel Haelterman also stated that he and Mr Raf Verstraeten had requested to join these working groups. The AWDC Board of Directors was informed of this on 9 December 2008: “These groups should start working together and AWDC will try to get Prof. Verstraeten involved in the discussions." According to Mr Axel Haelterman, the text of Mr Raf Verstraeten would in any event be presented to the combined working group.

262 263

Email from Mr Raf Verstraeten to Ms Hildegard Penne of 26 November 2008. Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 5.

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367. On 15 December 2008, Mr Raf Verstraeten sent this and other messages to AWDC and to Mr Axel Haelterman by email: "As regards my presence at the plea bargain working group, Ms Penne was going to check whether anyone objected."264 (translation). On 15 January 2009 Mr Raf Verstraeten sent AWDC and Mr Axel Haelterman another email, stating among other things that: "I have actually been invited to attend the panel of PG of 22 January (.)."265 (translation). 368. On 22 January 2009 a joint meeting of the Criminal Procedure expert network and the Working Group of the fraud prevention panel was held to discuss the implementation of proposal 37 of the 20082009 Action Plan. Ms Hildegard Penne and Mr Raf Verstraeten were present266. The report on this meeting follows: "First item on the agenda: the extended plea bargain". The first item on the agenda was the subject of a discussion at a joint meeting of the Criminal Procedure coordination team and the working group of the tax and social security fraud prevention panel about the implementation of proposal (37) of the 2008-2009 Action Plan concerning the proposal for the extended plea bargain". Both the Criminal Procedure coordination team and the aforementioned working group worked on drafting a proposal to amend article 216a of the Belgian Criminal Investigation Code. The objective of the joint meeting was to come up with a joint proposal. Flor de Mond mentioned the most recent amendments to the text. (...) Yves Liégeois summed up. The text will be refined taking into account the comments made and finalized by mail. The text will then be presented in the form of an opinion to the Panel, which will then present it to the Minister of Justice. The text will also be forwarded to the social security and tax fraud prevention Panel. Raf Verstraeten’s text will be used as the basis for the presentation of the reasons, supplemented by the issues raised during this meeting."267 (translation)

AWDC documents sent to the enquiry committee, (Appendix 1, Part 2). Ibid. 266 The other participants were: Messrs Liégeois, De Mond, Oldenhove, Kenis, Andries, Lotz, Erauw, Wolf, Lenaerts, Vandenbruwaene, Vanderheyden, Nouwynck, Backx, Mrs Reynders, Pantelis, Mainfroid, Colpaert, Messrs Limbourg, Simon, Van Buggenhout, Robert, Ms Melis. 267 Letter from the Panel of prosecutors general to the enquiry committee dated 14 March 2017 (Report on the joint meeting of the Criminal Procedure expert network and the working group of the tax and social security fraud prevention Panel concerning the implementation of proposal 37 of the 2008-2009 action plan of 22 January 2009). 264 265

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369. Concerning the presence of Mr Raf Verstraeten at the meeting on 22 January 2009, Mr Yves Liégeois told the committee: "When setting up the expert network, it was clearly planned that third parties able to contribute a certain degree of expertise could be involved when appropriate. This procedure is therefore not explicitly excluded from the activities of the expert networks. We can consult third parties, experts who may be able to shed light on the matter.” (translation)268 Mr Yves Liégeois also said: "I shall say no more about the capacity of Professor Verstraeten. At the time he was a lawyer and still a Professor." (translation)269 AWDC was billed for Mr Raf Verstraeten’s time.270 370. On 23 January 2009 Mr Raf Verstraeten sent a report to AWDC and to Mr Axel Haelterman. Mr Raf Verstraeten stated that the Criminal Procedure expert network had developed its own proposal, which incorporates a number of points that he himself had raised. "Fundamentally this text contains only one difference, which makes it even more favourable than the proposal we put together at the Antwerp working group".271 Not only is the investigating judge not granted a right of veto, but in addition, he has no "right of suspension" for several months. This proposal does not therefore provide for a compulsory opinion on the part of the investigating judge. Mr Raf Verstraeten also explained that: "For the rest, it was mainly a matter of drafting legislation, as Yves Liégeois considered that much more detail should be included in the text of the law" (translation).272 371. Following the meeting on 22 January 2009 Mr Raf Verstraeten received the draft text incorporating the comments made further to the meeting on 22 January, which he had analysed before making suggestions for the benefit of the Panel of Prosecutors General.273

Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 35 Ibid. 270 AWDC documents sent to the enquiry committee, (Appendix 2), invoice of Eubelius dated 31 March 2009. 271 AWDC documents sent to the enquiry committee, (Appendix 1, Part 2, b.). Email of January 23, 2009, from Mr Raf Verstraeten to Messrs Axel Haelterman and Philip Claes. 272 AWDC documents sent to the enquiry committee, (Appendix 1, Part 2). 273 AWDC documents sent to the enquiry committee, (Appendix 2), invoice of Eubelius dated 31 March 2009. 268 269

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372. On 19 February 2009 the issue of the extended plea bargain was discussed at the meeting of the Panel of Prosecutors General. Mr Patrick Vandenbruwaene (General Counsel at the Antwerp Court of Appeal) presented a review of the progress of the case relating to the extended plea bargain and requested the Panel’s approval to be able to report to the Minister of Justice and to the State Secretary for Coordination of Fraud Prevention as soon as a presentation of the reasons had been prepared. The Panel of Prosecutors General approved the proposed amendment of article 216a c.i.CR.274 Addressing the enquiry committee, Mr Yves Liégeois said that once the expert network had drafted its opinion, it would be forwarded to the Panel of Prosecutors General. "Five members of the Panel of Prosecutors General must rule on this matter. Nobody else is involved in this decision." 373. On March 6, 2009, the proposal approved by the Panel of Prosecutors General was forwarded to the Minister of Justice. The covering letter read as follows: "Please find enclosed the text (…) of a draft amendment of Article 216a of the Belgian Criminal Investigation Code whose object was approved by the Panel of Prosecutors General on February 19, 2009. This text is the result of the collaboration between the "Criminal Procedure" expert networks and "ECOFIN" and representatives of the tax and social security fraud prevention Panel.".275 374. On April 29, 2009, Messrs Yves Liégeois, Flor de Mond and Carl Devlies met to finalize the "extended plea bargain” case. On that day, Messrs Axel Haelterman and Carl Devlies had lunch together and discussed the case. According to the statements made by Mr Axel Haelterman, he convinced Mr Carl Devlies to ensure, in the event the investigating judge had a role to play in connection with the extended plea bargain, to limit this role to having the option of postponing the case for three months. According to Mr Axel Haelterman, Mr Carl Devlies informed Mr Axel Haelterman that he

Letter from the panel of prosecutors general to the enquiry committee dated 14 March 2017 (Report on the meeting of the Panel of Prosecutors General of 19 February 2009). 275 Letter from the Panel of Prosecutors General to the enquiry committee dated 14 March 2017. 274

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would be presenting the draft to the Council of Ministers himself, rather than through the Minister of Justice "because it will be quicker" and could result in a preliminary agreement within the interdepartmental fraud prevention committee" (translation).276 On 7 May 2009, the AWDC Board of Directors was informed that the text was being finalized and was now on the desk of the State Secretary Carl Devlies.277 375. Mr Devlies told the Committee that during this lunch meeting, it was above all a matter of a major tax reform, which he was also dealing with at the time as a former member of parliament and of the Finance and Budget Committee. The second point concerned the tax on inter-company capital gains to offset non-payment of the withholding tax by a number of companies. "At the moment we are looking at several options in order to find a solution; the question was then submitted to Mr Axel Haelterman. However, Mr Haelterman asked me in passing how things were progressing with the extended plea bargain". This issue was frequently in the headlines at this time. I think I was invited onto the program "De Zevende Dag" to discuss this matter not long before that. (translation). "Mr Haelterman asked me how things were progressing with the extended plea bargain, which did not strike me as unusual coming from a professor at KU Leuven. I replied to him in the same manner as in the media and in the House.â&#x20AC;? (translation)278 376. Lastly, on 14 May 2009 Mr Flor De Mond, First General Counsel at the Antwerp Court of Appeal, sent the Strategy Unit of the Minister of Justice a "draft presentation of the reasoning behind the draft law amending Article 216a of the Belgian Criminal Investigation Code relating to the ending of prosecution on payment of a sum of money."279 Mr Christiaan Nys also contributed to the drafting of this presentation of the reasons.280 This presentation contains an explicit reference to the local consultation in Antwerp: "It should also be emphasized that the draft in review is the result of the intense consultation that took place in Antwerp between members of the Public Prosecutor's Office, representatives of the corporate world (Antwerp World Diamond Centre), the Belgian Companies Federation and the investigating judges,

AWDC documents sent to the enquiry committee, (Appendix 1, part 2), email from Mr Axel Haelterman to Messrs Philip Claes and Raf Verstraeten dated 29 April 2009. 277 AWDC documents sent to the enquiry committee, (Appendix 4) Report of the AWDC Board of Directors of 7 May 2009. 278 Interview of Mr Carl Devlies, 12 July 2017, CRIV 54 K052, p. 20. 279 Letter from the Office of the Prosecutors General at the Antwerp Court of Appeal to the enquiry committee dated 3 March 2017. 280 Interview of Mr Christiaan Nys, 15 March 2017, CRIV 54 K015, p. 11. 276

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the academic world (professors Raf Verstraeten and Axel Haelterman) and regional departments of the Finance SPF. This consultation platform was set up in response to an earlier proposal, law no. 52 739 on the seizure of company assets, which did not come to fruition."281 (translation) The presentation of the reasons also refers on several occasions to Mr Raf Verstraeten’s draft: "Unlike this draft, Professor Raf Verstraeten’s proposal provides for a prior opinion from the investigating judge (in particular concerning the status of the investigation and the updating of the facts), combined with a right of suspension." The presentation also gives two practical examples, both of them criminal investigations conducted by the Antwerp Ecofin department concerning the Antwerp Diamond sector. 377. According to Mr Yves Liégeois, the public prosecutor's office had no further involvement in discussions on an amendment of Article 216a of the Belgian Criminal Investigation Code, between July 2009 and the adoption of the extended plea bargain law by Parliament in 2011: "First General Counsel De Mond was also invited to the GTI meeting on 1 July 2009; after that everything stopped for the public prosecutor's office as far as I am aware, until approval was suddenly granted in March-April 2011 by the Finance and Budget Committee (...) It should be noted that after that the Public Prosecutor's Office heard virtually nothing for a long time, around two years.” (translation)282 378. Mr Raf Verstraeten told the committee: "After 2009, I may have had another telephone conversation with Ms Penne in order to see whether this proposal would still be taken up by one or other initiative, but she told me that for them the story stopped there. So, I note that in 2010 I indeed had no further correspondence other than in relation to the seizure issue. In March 2011 I learnt that a political agreement had apparently been reached. I found an email in which, at the beginning of March I must have contacted the office saying, "I see there has been a political agreement concerning this law". And I did not even have the text of it."

281 282

Document from Ms Hildegard Penne sent to the enquiry committee: preliminary draft of 14 May 2009. Interview of Mr Yves Liégeois, 15 March 2017, CRIV 54 K014, p. 9.

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3.4. Work at government level 379. On the basis of the text of the law forwarded by the Panel of Prosecutors General on 6 March 2009 and the draft presentation of the reasons of 14 May 2009 forwarded by Mr Flor de Mond, Mrs Hildegard Penne, advisor to the office of the former Minister of Justice Mr Stefaan De Clerck, drew up, in collaboration with Mr Steven Limbourg of the Justice SPF, a draft law with the aim of extending the plea bargain283. 380. Ms Hildegard Penne removed all references to the consultation with the diamond trade and the text of Mr Raf Verstraeten which served as a basis for the draft law, as well as real-life examples related to the diamond trade and the presentation of the reasoning behind the draft law because she believed that these were not appropriate as the proposal had a broader scope of application. She considered that the extended plea bargain should have a general scope of application. "I do not believe that we should introduce a specific procedure for certain offenders or offences and not for others. I consider that everyone should be entitled to the benefit of a procedure. The procedure is the same for all. I was also concerned that the Constitutional Court might reject the proposal due to a breach of the principle of equality284.â&#x20AC;? (translation) She removed the detailed real-life examples, modified the structure, included the extension as part of the history of the plea bargain and listed its benefits and drawbacks encountered by the Judiciary at the time before emphasising the restorative vision of the judiciary285. Mr Stefaan De Clerck told the enquiry committee about these deletions: "Generally speaking I believe that it is important to explain exactly what the general interest in a proposal for a law or a draft law is." (translation) The preliminary draft was ready on 23 June 2009286. 381. This preliminary draft had a variety of authors, which according to Ms Hildegard Penne was a good thing because it showed that this draft enjoyed widespread backing and that different bodies had worked on it. Ms Penne stated that the text brings together extracts from the text of Mr Raf Verstraeten, the draft submitted by the Public Prosecutor's Office and the contributions of the offices and the Justice SPF287.

Text forwarded from Ms Hildegard Penne, point 8. Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 5. 285 Ibid., p. 6. 286 Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 34. 287 Text forwarded from Ms Hildegard Penne, point 8. 283 284

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382. Mr Raf Verstraeten told the enquiry committee that the text that was finally adopted was fundamentally different from the one that he drafted. Mr Raf Verstraeten stressed that the scope of application proposed by the Panel was completely different from what he had proposed in his original text. The Panel’s proposal went much further than his. Secondly, Mr Raf Verstraeten mentioned the position of the investigating judge, who must be able to issue an opinion if the prosecutor is planning to offer a deal. This aspect did not appear in the text drafted by the Panel and the expert network working for it. Thirdly, he referred to a series of ad hoc draft laws.288 383. On 1 July 2009, a GTI met to discuss the preliminary draft law amending Article 216a of the Belgian Criminal Investigation Code concerning the ending of prosecution on payment of a sum of money289 290. Ms Penne monitored the legislative aspect and content, and Mr Bart van Humbeek of Mr Carl Devlies' office monitored the subsequent political discussions. Messrs Flor de Mond and Christiaan Nys were also invited to attend this GTI as technical experts291. They were both present292. 384. The report did not mention significant obstacles relating to the content. The conclusion of the GTI was that the preliminary draft law could be discussed at the meeting of the General Policy Directors (DPG), and even at the next Council of Ministers. The report also stated that the PS did not share this conclusion293. Ms Hildegard Penne transcribed this position as follows: "All parties were in agreement, except the Onkelinx office, which considered that the proposal should be discussed in Parliament as part of the parliamentary enquiry committee’s recommendations on major tax fraud cases294." The case was not on the agenda of any Council of Ministers in July 2009".295

Interview of Mr Raf Verstraeten, 7 June 2017, CRIV 54 K039, p. 8. Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 3. 290 The political staff of the Minister of Justice, the Prime Minister and deputy prime ministers were present: Ms Charline Desmecht for the Prime Minister’s office, Mr Didier Leemans and Ms. Maîté De Rue for the Onkelinx office, Messrs Gijs Boute and Frederik Peetermans for the De Gucht office, Ms Heidi Elpers and Mr Koen De Busser for the Vanackere office, Mr Luk Somers for the Milquet office, Messrs Bart Vandenberghe and Bart van Humbeeck for the Devlies office. The Reynders and Clerfayt offices were not represented. According to the minutes of this GTI, this absence was due to a misunderstanding. 291 Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 6: 292 Report of the inter-office working group. 293 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 3. 294 Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 6. 295 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 4. 288 289

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385. With regard to the preliminary draft, the Inspector of Finance of the Justice SPF did not raise any objections in his opinion of 28 July 2009. This opinion, requested by the Minister of Justice Stefaan De Clerck, referred to a budgetary impact as follows: "As the purpose of this extension is to ensure more effective punishment of a number of offences - especially tax and social security fraud - through the more effective levying of "fines" or of what replaces them here, namely the amount due to the Finance SPF in connection with the plea bargain, we should expect to receive additional revenues following the entry into force of the proposed measures, although we are unable to come up with an estimate of this.".296 386. In a second opinion dated September 11, 2009, the Inspector of Finance of the Finance SPF did not raise any objections to the preliminary draft. This second opinion, requested by State Secretary Bernard Clerfayt (Fraud prevention), referred to a budgetary impact as follows: "When so requested, on 10 September the Finance SPF, subject to the usual reserves, conservatively estimated the additional income at 45 million euros per year. The income from the abovementioned article 216a is currently more than EUR 50 million.â&#x20AC;? (translation)297 387. The preliminary draft law was mentioned again in October 2009, during the preparation of the 2010 budget. The decision of the Council of Ministers was as follows: "With regard to the plea bargain and the possible adaptation of the legal provisions relating to the collection of information from banks, the Government will examine in greater detail the various options for achieving the necessary progress. The return is PM (as a reminder). Which usually means: this will generate something, but we do not know how much or when."298 (translation)

Memo to Mr Stefaan De Clerck, Minister of Justice, FI opinion of 28 July 2009. Memo to Mr Bernard Clerfayt, State Secretary for the modernization of the Finance SPF, to Environmental Taxation and Tax Fraud Prevention, FI opinion of 11 September 2009. 298 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 4. 296 297

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4. Parliamentary enquiry committee tasked with investigating major tax fraud cases 388. On April 10, 2008, the House adopted a proposal to set up a parliamentary enquiry committee to investigate major tax fraud cases.299 Article 1 of this proposal instructed the enquiry committee to "to review the handling of major financial and tax cases of the last 15 years, with the task of highlighting the causes of the systematic failures in such cases and to suggest remedies for these failures.". 389. During the committee’s hearings on 6 October 2008, Mr Ghislain Vandercapellen of the Finance SPF, said: "That is why I am proposing that criminal prosecutions - i.e. the prosecution of fraudsters before a court - should be initiated mainly in cases of serious tax fraud, by which I mean cases in which the Treasury has been the victim of serious tax fraud. I believe that it could be interesting to "arm" the tax authorities so that they can themselves punish and eradicate other types of fraud, which could then be carried out by the Finance SPF itself. [...] I would moreover like to advocate the creation of a framework, a flexible framework whereby it would be possible to conclude deals with fraudsters ready to pay serious and fair compensation in reparation for the loss incurred by the State. [.] If such a framework was created, it would be important to ensure that the deals concluded are checked. We are talking about deals that would be concluded by the tax authorities themselves here. I believe that it would be appropriate therefore that the Court of Auditors perform ex post checks on any deals made."300 390. During the hearings of the 23 March 2009, Mr Peter Van Calster of the Antwerp prosecutor's office, said: "Last but not least - just to be clear: if my information is correct, the legislative work has already started - even in cases that are under investigation, it should be possible at this stage, through a form of amicable settlement, to put an end to public prosecution in a justifiable and fair manner for certain aspects of cases or

Proposal to set up a parliamentary enquiry committee tasked with investigating major tax fraud cases, tabled by Messrs JeanMarc Nollet, Stefaan Vanhecke, Thierry Giet, François-Xavier de Donnea, Carl Devlies, Christiaan Brotcorne, Luk Van Biesen and Ms Valérie Déom, Doc 52 0034/001. 300 See Parl. Doc., House, 2008-2009, Doc 52-0034/004, Appendix 2. 299

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for certain persons involved in these cases. Make no mistake; this must not result in class-based justice in any form. It goes without saying that we must work transparently, so that at the end of the day, all the parties involved that merit punishment as part of a major case nevertheless receive a fair penalty."301 391. During the hearing of 23 March 2009, Mr Christiaan Nys also said: "Lastly, another important point that has already raised by my colleague concerns the possibility of arranging a deal. In collaboration with First General Counsel De Mond of the Antwerp General Prosecutor's Office, we have drafted a text which is currently being reviewed at the office of the Judiciary and which, in my opinion, has already been approved by the Criminal Policy department. I hope that we will be able to think seriously about this possibility."302 392. The report containing the findings and recommendations of the parliamentary enquiry committee of 7 May 2009 did not discuss plea bargains in the chapter on "judicial procedures". The plea bargain is however mentioned in the "General guidelinesâ&#x20AC;? chapter, which moreover exclusively contains recommendations relating to tax procedures and to the tax authorities. According to the report, the hearings have shown the need to develop an effective system for reaching agreements under which the authorities may conclude agreements with taxpayers that put an end to any criminal prosecution. The findings mention that it would also be appropriate to examine in greater depth the possibility of introducing an amicable judicial settlement303. 393. The findings and recommendations contained in the final report, approved almost unanimously by the House, were as follows304: â&#x20AC;&#x153;21. Amicable settlement A. Findings In the field of direct taxation, when reaching an agreement, there is no legal framework in place for putting an end to prosecution.

See Parl. Doc., House, 2008-2009, Doc 52-0034/004, Appendix 2. See Parl. Doc., House, 2008-2009, Doc 520034/004, Appendix 2. 303 Report of the parliamentary enquiry committee on major tax fraud cases, 7 May 2009, Doc 52 0034/004, p. 243. 304 Ibid. 301 302

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The hearings have shown the need to develop an effective system for reaching agreements under which the authorities may conclude agreements with taxpayers that put an end to any criminal prosecution. The agreements must correctly set out the responsibilities of all the parties involved. It is the responsibility of the legislator to determine the conditions thereof. It would also be appropriate to examine in greater depth the possibility of introducing an amicable judicial settlement. If such a framework is created, it must of course also ensure, with regard to amicable settlements with the authorities, that any deals can be checked. We must ensure that all Belgians are equal before the tax laws. It would be appropriate that an independent public body such as the Court of Auditors perform ex post checks on any deals. At the present time, the Court of Auditors already monitors tax revenue, but only on a sampling basis (these checks are governed by a protocol agreed between the Court of Auditors and the Minister of Finance, published in the Moniteur Belge of 31 January 1996). The names of the taxpayers concerned are never mentioned in the course of these checks. B. Recommendations 36. Introducing a general amicable settlement and/or plea bargain system which, in practice would put an end to criminal prosecutions for tax fraud. 37. Record, from a certain amount upwards, instruments filed by the authorities in terms of amicable settlements in a register sent to the Court of Auditors, which will report annually to the House of Representatives in compliance with the principle of taxpayer privacy and anonymity." 394. Moreover, the report containing findings and recommendations also mentions banking secrecy305:

305

Ibid.

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“19. Banking secrecy306 A. Findings The committee has found that banking secrecy, such as it is organized in Belgium, constitutes a real obstacle to effective prevention of tax fraud. B. Recommendation From the point of view of the effectiveness of tax fraud prevention, adapting the laws and the tax rules that govern banking secrecy in our country in order to enable the authorities to question banks when it has one or more indications that income has not been reported. This adaptation will be made in the spirit of the European rules and will concern in particular all or some of articles 318, 322 and 323 of the CIR, without prejudice to the application of article 333 of the CIR (obligation in certain cases to warn the taxpayer that it is lifting the obligation of discretion).". 395. In terms of the follow-up to its work, the major tax fraud parliamentary enquiry committee recommended in particular that: “107. The committee recommends that a working group (composed of members of the of the Finance and Budget Committees and of the Judiciary) transcribe the recommendations that require legislative amendments into the text of the law".307

306 307

Ibid., p. 242. Ibid., p. 271.

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5. Outgoing government and current affairs (April 2010 - December 2011) 396. During 2010 and 2011, the Government presided over by Mr Yves Leterme had four successive terms of routine business, each in different circumstances. On 22 April 2010, the Prime Minister presented his governmentâ&#x20AC;&#x2122;s resignation to the King. On 26 April the King accepted and tasked the government with carrying on its routine business. The situation of the legislative Houses did not change to the same extent, except that they lost their usual interlocutor. On 7 May 2010, the Houses were automatically dissolved as a result of the adoption of a declaration on the revision of the Constitution (Moniteur Belge, 7 May 2010, 2nd ed., p. 25672). The outgoing government remained in place. It carried on its routine business knowing that it could no longer rely on the support of the Houses at that time. On 13 June 2010 the Houses were renewed. On 14 June the Prime Minister again presented his resignation to the King. The King accepted it once again. In application of the Royal Decree of 7 May 2010 on the convening of the electoral colleges for the election of the federal legislative Houses as well as the convening of new rooms federal legislative Houses, (Moniteur Belge, 7 May 2010, p. 25769), the new Houses were however not required to meet until Tuesday 6 July (article 2). The situation therefore remained identical to that described in the previous point. With effect from 6 July 2010, the House of Representatives undertook to verify the powers granted to its members. The Senate performs the same checks but must also accommodate community senators (senateurs de communautĂŠ) and appoint co-opted senators. Once these operations had been completed, the assemblies were able to perform their duties. For example, since 27 January 1988 the Conference of Presidents has authorized members of the House to ask members of the outgoing government oral questions at committee meetings and on 20 July 2010, in plenary session, the House of Representatives authorized members of the House to ask members of the government who may be in the same situation written questions. 397. The Houses are however dealing with an outgoing government that is only able to perform its duties within the limits permitted when carrying out routine business. It follows, for example, that challenges are unconceivable.

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This situation will persist until 6 December 2011 when the Government presided over by Elio Di Rupo takes office. In a period of routine business, an outgoing government frequently wonders about its capacity to table draft laws, to get the Houses to debate and adopt them, and then to sanction, enact and publish them. Forms of collaboration between the government and the legislative Houses were gradually introduced from 1988 onwards, and more so in 2007. Memos and then notifications from the Council of Ministers as well as the deliberations of the Conference of Presidents (to the House of Representatives) and the Bureau (in the Senate) report on these practices. As Prime Minister Verhofstadt wrote on 24 September 2007 to the Speaker of the House Herman Van Rompuy, "an outgoing government cannot table draft laws in Parliament". This prohibition does not apply, however, to "urgent projects that concern the continuity of the state (such as temporary loans with the exception of an unrelated provision (cavalier budgetaire) -, a finance law, armed forces, approval of treaties" (ibid.). The Conference of Presidents checks whether the issues dealt with in the draft law tabled can be categorised as routine business; on 29 April 2010 it felt that it should decide this issue â&#x20AC;&#x153;by consensus"; it recalled this practice at its meeting of 28 September 2010. If the answer is positive, the House committee entrusted with such a project is required to perform the same checks. 398. According to article 2 of the law of 5 May 1999 relating to the impact of the dissolution of the Legislative Houses in respect of draft laws and proposals referred to them, "in the event of the dissolution of the House of Representatives all draft laws and proposals referred to the legislative Houses are deemed invalid". They are null and void.

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399. On 13 June 2010 federal elections took place. In the Flemish constituencies, the first party was N-VA with 27.8% of the votes in the House of Representatives. In the Walloon constituencies, the PS won 37.6% of the votes. On 17 June 2010 King Albert II appointed Mr Bart De Wever, president of N-VA as ‘informateur’ (contact person). On 8 July 2010 Mr De Wever presented his report to the king. On the same day, the King appointed Mr Elio Di Rupo, President of the PS, as prime minister in waiting. Negotiations between seven political parties on the reform of the State began on 25 July 2010: PS, cdH, Ecolo, N-VA, CD&V, sp.a and Groen!. On 28 August 2010 the prime minister in waiting tabled a comprehensive proposal which was rejected by CD&V and N-VA. Mr Di Rupo then tendered his resignation to the King on 29 August 2010, who refused to accept it. 400. On 31 August 2010, Mr Bart De Wever met with a delegation from MR, led by Mr Didier Reynders. 401. On 3 September 2010 the prime minister in waiting presented a new memorandum on the reform of the State to the seven parties involved in the negotiations. N-VA and CD&V rejected these proposals. Mr Elio Di Rupo tendered his resignation to the King, who accepted it the next day. 402. On 4 September 2010 the King entrusted the Speaker of the House, Mr André Flahaut (PS), and the Speaker of the Senate, Mr Danny Pieters (N-VA), "with a mediation mission to revive negotiations with a view to forming a government". This mission was unsuccessful. 403. On 8 October 2010 the King entrusted Mr Bart De Wever with a 10-day clarification assignment to reconcile the various negotiators’ points of view on the reform of the State. October 17, 2010. Mr Bart De Wever sent them his report. The Francophone parties rejected it. 404. On 21 October 2010, Mr Johan Vande Lanotte was appointed conciliator by the King. Noting that two of the seven parties at the negotiating table were refusing to negotiate on the basis of his memo of 3 January 2011 on the reform of the State, on 6 January 2011 Mr Johan Vande Lanotte asked the King to be released from his assignment. 405. Mr Olivier Henin, head of Deputy Prime Minister Didier Reynders’ office, noted that by the end of 2010 the State was coming under increasing external pressure:

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“there were meetings of the Eurogroup and the Ecofin almost every week to discuss the sovereign debt crisis, and a number of countries (Ireland, Greece) were under pressure from the markets. According to Mr Olivier Henin, the question here was whether Belgium was going to be next on the list, in particular due to the fact that its routine business was still ongoing."308. 406. Mr Serge Govaert, expert at the CRISP (socio-political research and information centre), described the situation as follows: "The King is holding in abeyance his decision on the resignation of Mr Johan Vande Lanotte. Global economic pressures resulted, on 10 January 2011, in an exceptional decision: rather than forming a provisional government, the outgoing prime minister was tasked with preparing a budget for the year in view. The Palace press release explained that "the government carrying out routine business must prepare the 2011 budget with the aim of achieving a budgetary balance that is better than the one agreed with the European authorities".309. 407. On 11 January 2011, the King asked Mr Johan Vande Lanotte to continue his assignment "in a special dialogue with the two largest parties". Faced with an impasse in this task, Mr Vande Lanotte once again tendered his resignation to the King on 26 January 2011, which the King accepted. 408. On 27 January 2011 the King began a series of consultations, and for the first time since the beginning of the crisis, the leaders of the liberal parties were also invited to attend. 409. On 2 February 2011 the King appointed MR leader Mr Didier Reynders as ‘informateur’. "The same day, the King also tasked outgoing prime minister Mr Yves Leterme with presenting the 2011 budget in Parliament and carrying out with his government in routine business all necessary economic, social and financial measures to protect the well-being of our citizens"310. On 16 February 2011, the informateur presented his written report to the King, who extended his assignment.

308 309 310

Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, p. 3. Serge Govaert, "Community negotiations and forming the Di Rupo government (June 2010 - December 2011)", CRISP weekly circular, 2012/19 (no. 2144-2145), point 104. Ibid., point 124.

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410. On 1 March 2011 Mr Didier Reynders presented his final report to the King, who released him from his assignment. 411. On 2 March 2011 the King appointed CD&V leader Mr Wouter Beke as negotiator "to draw up an Institutional Agreement". The same day, Mr Wouter Beke announced that he would be working "in special consultation with the leaders of the two largest parties". He consulted with nine parties: PS, MR, cdH, Ecolo and Groen!, sp.a, Open Vld, CD&V and N-VA. On 12 May 2011, Mr Wouter Beke presented his findings to the King. 412. On 16 May 2011, after carrying out a round of consultations with the nine negotiating parties, the King appointed Mr Elio Di Rupo as 'formateur'. On 4 July 2011, the formateur sent his memo on forming a government to the other parties. On 7 July 2011 Mr Bart De Wever announced that he was refusing to negotiate on the basis of this memo. Mr Wouter Beke announced that negotiating without NVA was pointless. 413. On 8 July 2011 the formateur presented his resignation to the King, who held it in abeyance, saying that "in view of the seriousness of the political situation (...), all of our political leaders must take a few days to reflect and to assess the consequences of the political situation, and to find a way out of this impasse". 414. On 13 July 2011 Mr Wouter Beke asked the formateur to amend various points in his memo. On 14 July Mr Elio Di Rupo summoned the representatives of the seven parties that were willing to negotiate his memo to review the situation. Between 15 and 20 July 2011, the seven parties that had agreed to discuss the memo met, together with CD&V. In the evening of 21 July 2011, the outgoing formateur informed the King that negotiations between these parties could begin. N-VA was no longer involved in the negotiations. 415. These negotiations resulted in an institutional agreement between eight political parties (PS, sp.a, MR, Open VLD, CD&V, cdH, Ecolo, and Groen!) on 11 October 2011. Next, socio-economic negotiations resulted in the formation of a government comprising six parties (PS, sp.a, MR, Open VLD, CD&V, and cdH) on 6 December 2011. 416. This long period of routine business and of forming the government resulted in Parliament adopting various draft laws by various configurations of majority.

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Ms Gwendolyn Rutten told the enquiry committee about these various configurations of majority: "It was therefore also possible to vote on legislative texts, even if a new government had not yet been formed and there was therefore still no fixed majority. Among the examples of this parliamentary freedom, which I had no problem with, I gladly recall the asylum and migration rules drawn up developed at the time, quotas for women on boards of directors and the prohibition on wearing the burqa."311 (translation) 6. Initiatives of Antwerp World Diamond Centre (AWDC) during the current business period (September 2010 - January 2011) 417. In autumn 2010, the HSBC criminal case began in Antwerp312. The ISI obtained the HSBC list on 7 July 2010 under an exchange agreement with France313. Next, on 14 September 2010, the Antwerp prosecutor’s office also obtained a CD-ROM containing the names of Belgians that had accounts with HSBC. On 17 September 2010 Messrs Axel Haelterman and Raf Verstraeten requested a meeting with Mr Yves Liégeois to discuss the regulations applicable to deals in the HSBC cases314. This meeting took place on 5 October 2010315. Present at the meeting were: Mr Axel Haelterman for AWDC and Messrs Yves Liégeois, Herman Dams316 and Flor de Mond.317 Mr Raf Verstraeten told the enquiry committee: "The question raised at the time was the following. In the event that such a global approach to this matter turns out to be possible, how will the public prosecutor's office respond? In this situation, if there were such a tax deal, it is important to know whether it would be possible to ask the public prosecutor’s office how it would react or what approach it would take. I remember a meeting held on this subject with Mr Yves Liégeois and our colleague Mr Haelterman. Mr Liégeois politely but very firmly turned us away. He explained that it was a matter of individual customers and individual diamond dealers rather than an industry-wide issue. He said that he was sorry, but he did not wish to discuss it with us. That was the General Public Prosecutor’s point of view. If indeed that was the Prosecutor General’s point of view, we felt in any case that no tax crime-related solution could be examined from this side. (translation)318

Interview of Ms Gwendolyn Rutten, 17 May 2017, CRIV 54 K033, p. 2. Interview of Mr Peter Van Calster, 22 March 2017, CRIV 54 K017, p. 5. 313 Oral Question no. 5052 of Mr Dirk Van der Maelen of 7 June 2011. 314 Supreme Council of the Judiciary, Report on the special investigation, "Diamond Wars” (la Guerre du Diamant), 27 March 2012. 315 Ibid. 316 Mr Herman Dams was public prosecutor for the district of Antwerp. 317 Fee notes of Mr Raf Verstraeten and letter from AWDC to the parliamentary enquiry committee. 318 Interview of Mr Raf Verstraeten, 7 June 2017, CRIV 54 K021, p. 36. 311 312

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418. At his interview on 22 March 2017, Mr Peter Van Calster put forward his own hypothesis: â&#x20AC;&#x153;The HSBC case began in Antwerp in the autumn of 2010. Messrs Haelterman and Verstraeten requested deals almost immediately. (...) For the investigating judge, the investigation into the Monstrey case was completed during the first quarter of 2011. The investigation into the Omega Diamonds case was also completed during this period. This case was forwarded to the public prosecutor by the investigating judge. (translation)319 419. According to the documentation in the possession of the enquiry committee, on 12 October 2010 Mr Axel Haelterman submitted the proposal concerning the extended plea bargain to Mr Jan Jambon for inclusion in negotiations on the governmental agreement. Mr Axel Haelterman referred to his meeting with Mr Jan Jambon a week earlier320. Mr Axel Haelterman also contacted the FEB and asked it to back this proposal321. 420. Mr Axel Haelterman reported this to the AWDC in an email dated 22 November 2010322: "Servais Verherstraten (in consultation with Jan Jambon) will now set up a meeting with representatives of the PS, Spa and cdH to see whether both texts [on] extended amicable settlement and seizures, could be voted in Parliament (in the absence of a government). I have noticed that PS/Spa have introduced in Parliament a new proposal on amending rules of Belgian banking secrecy. This creates the opportunity to link all of this together in a package where each party finds something that it wants (quasi identical package as was on the table before the government fell away.)". Another mail of 22 November 2010 from Mr Axel Haelterman to AWDC included the following: "Well... now would be a good moment to try to find out whether Burgemeester Patrick Jansen would be willing to invite his Spa colleagues to view these proposals with some level of sympathy." The meeting between the AWDC and Mr Patrick Janssens was scheduled for 25 November 2010. The enquiry committee was not able to check whether this meeting actually took place.

319 320 321 322

Interview of Mr Peter Van Calster, 22 March 2017, CRIV 54 K017. Documents produced by AWDC, Appendix 1, Part III. Ibid. Documents produced by AWDC, Appendix 1, Part III.

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421. On 24 November 2010, in response to the question of Mr Stéphane Fischler as to whether there was any news on the HSBC case, Mr Axel Haelterman replied to him as follows by email: "No news. I sent an email to Frank Philipsen - Ed: ISI director general323 - at the beginning of last week. No reaction." In the same email he explained that he had just called the office of the Minister of Finance but that they don’t even pick up the phone anymore, but he would keep trying. Mr Axel Haelterman also stated the following: "I am going to invite Rudy Volders to a follow-up "bij-praat lunch" , and also to talk about his plans after the end of the Liberal cabinet"324 (translation). As to whether he discussed plea bargains with Mr Haelterman, Mr Rudy Volders325 told the enquiry committee that the meeting concerned the diamond trade’s 2020 plan.326 327 422. On 2 December 2010, a CD&V group staff member told Mr Axel Haelterman that CD&V’s draft law on the extended plea bargain had been forwarded to the House’s departments for testing. Mr Axel Haelterman forwarded CD&V’s email to AWDC of 3 December 2010, with the following comment: "for info, appended hereto are the final texts of this other draft law, which we also pushing for”328 (translation). The final draft of CD&V’s draft law on the extended plea bargain was presented on 24 February 2011 (see observation no. 534 below). In his email to AWDC of 3 December 2011, Mr Haelterman added: "N-VA is also willing to try to get seizures and deals accepted in exchange for their agreement on a change to the Belgian rules on banking secrecy" (translation). N-VA voted against the law on extending the plea bargain.

Taxpayers records, including diamond dealers, are currently being examined by the ISI in connection with the HSBC case, after a former HSBC IT specialist at this Swiss bank passed the French authorities a CD-ROM containing the names of the European customers who had deposited their savings with this bank. 324 Documentation produced by AWDC: Email from Fischler to Haelterman of 24 November 2010 at 9.33am; Email from Haelterman to Fischler of 24 November 2010 at 2.19pm. 325 Interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, p. 22 and 14 June 2017, CRIV 54 K040, pp. 10 to 15. 326 Interview of Mr Volders, 22 May 2017, CRIV 54 K034, p. 22: "No, discussions with Mr Haelterman concerned only the diamond trade’s 2020 plan. The diamond trade's 2020 Plan. You know that since the 1990s, a supervision method has been in place so that we can, shall we say, tax the diamond trade in a pragmatic manner. It was in this connection that he wished to contact me. This plan concerned not only the tax measures, the tax audit method which was somewhat outdated, but also securing the Jewish district and various other things. It was a global plan. In fact, this initial contact was to pave the way for the meeting with the Minister himself. But I would say that Mr Reynders also had a royal assignment at the time, and it became rather complicated towards the end. He simply no longer came to the office. We were in routine business and after 2011 we had other fish to fry. MR was then involved in the negotiations. The head of the Minister of Finance’s office therefore had to attend these negotiations, primarily for the tax component of the Di Rupo government’s agreement. As a result, things were not done. We were no longer able to prepare for the meeting with the minister, but if it was a question of the diamond trade, it was part of the 2020 Plan of the organization concerned" (translation). 327 On 8 February 2012, the diamond trade's 2020 project master plan was published 328 Documents produced by AWDC, Appendix 1, Part III b). 323

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423. The first committee hearing by the Finance and Budget Committee was held on 8 December 2010. On that day the only speaker was Mr Axel Haelterman, who gave an additional response to the committee on 22 December 2010. During this hearing, Mr Axel Haelterman established a link with the plea bargain (as he had already suggested to AWDC on 22 November329: "It thus seems equally advisable that the improvement in investigation330 possibilities should go hand in hand with an improvement in the opportunities to settle tax cases in which the taxpayer and the tax authorities, whether supervised by the public prosecutor’s office or not, have finally agreed on levies or deals.”331(translation). 424. On 14 December 2010 Mr Axel Haelterman reported on the meeting in the House to AWDC (see observation No. 423). Concerning the plea bargain, Mr Axel Haelterman indicated that the members of parliament had accepted his initial idea, i.e., that it was a matter for the Government rather than Parliament. The enquiry committee did not know the identity of the members of parliament concerned.332 425. On 15 December 2010, the social security and tax fraud prevention Panel approved the text "Cornerstone for the next legislature", including the plea bargain. 426. On 21 December 2010 Mr Axel Haelterman reported to AWDC on the situation with the HSBC cases, and also with regard to the progress of the draft laws relating to seizures and the extended plea bargain333.

329 330 331 332 333

Email from Mr Axel Haelterman of 22 November 2010 from the documentation produced by AWDC, part III. Editorial Note: banking investigation. Doc. House, DOC 53 1312/001, p. 7. Email from Mr Axel Haelterman of December 14, 2010. Source: Appendix 2 to the letter of 4 October 2017 from AWDC’s lawyer to liaison magistrate Patrick Gaudius. Email from Mr Trisevgeni (AWDC) of 14 December 2010. Source: Appendix 2 to the letter of 4 October 2017 from AWDC’s lawyer to liaison magistrate Patrick Gaudius.

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427. At the beginning of January 2011, the ISI sent evidence of tax fraud to the taxpayers that it had identified from the HSBC list334 428. On 2 May 2011 Mr Axel Haelterman reported this to AWDC. He wrote: "If you read the texts, you will find that Van der Maelen (sp.a) again suggests that it was the intervention of the diamond trade that resulted in these texts being adopted very quickly. This point has not been raised since then but could come up again next week in plenary meeting, when this text will be definitively put to the vote. As you may have read in De Standaard, in my interview two weeks ago I said that my involvement in the drafting of this legislation stems in particular from the fact that I was acting as a Government expert in connection with the reworking of the Taxpayer’s Charter. This reference was a useful lightning rod.”335. (translation) 7. Initiatives by Armand De Decker and Catherine Degoul on the extended plea bargain (13 January 2011 - 20 February 2011)336 429. Several members of the committee questioned General Counsel Patrick De Wolf and Prosecutor General Marc de le Court with regard to the possibility of organising a meeting with Messrs Patrick De Wolf, Armand De Decker and Jonathan Biermann, which reportedly took place on 13 January 2011. This meeting was organised by Mr Marc de le Court. However, neither Mr Patrick De Wolf nor Mr Marc de le Court remember this meeting. Mr Patrick De Wolf said on this matter: "During hearings337, I was also told that he would come to me on 13 January. I know nothing about that, or simply do not remember that date at all."338 Mr Marc de le Court said on this matter: "For me, this chronology does not stack up. I did not see in the hearing minutes of the court sitting in chambers any mention of the lawyer De Decker.

334 335 336 337 338

Response of the Minister of Finance to question No. 293 by Mr Dirk Van der Maelen of 2 March 2011, see https://www.dekamer.be/ QRVA/pdf/53/53K0030.pdf. Documents produced by AWDC, Appendix 1, Part IIIb). See Part II below. Application of the “extended plea bargain” law until the entry into force of the amending law of 11 July 2011. Findings n° 774. Editorial Note: judicial hearings. Interview of Mr Patrick De Wolf, 10 May 2017, CRIV 54 K030, p. 20.

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I therefore think that when Mr De Decker claims to have contacted my office well before the order of the Court sitting in chambers and the appeal court that was commencing proceedings, from the moment where there were appeals against this order, this allegation seems false to me. All I can say is that it was false."339 430. Probably on Thursday 17 February 2011, Mr Armand De Decker met with Mr Stefaan De Clerck, Minister of Justice while they were at the plenary meeting. Mr Armand De Decker asked to see Mr Stefaan De Clerck about an urgent case, without specifying which340. Mr Stefaan De Clerck replied that he would only be able to examine this case the following weekend in Courtrai. Mr Armand De Decker confirmed that he had no problem with that and asked whether Sunday evening suited him.341 Mr Stefaan De Clerck told the enquiry committee: "When asked to see me, he did not mention that he wanted to see me in his capacity as a lawyer. That happened on a Thursday afternoon, during parliamentary question time in the House and in the Senate and I was coming and going. It was very busy. He told me he needed to see me urgently about a case but did not specify which one"342. Mr Stefaan De Clerck then said: "If he had told me that it concerned an individual case or Chodiev, I would have told him immediately that I was not interested"343. 431. On 18 February 2011 the Brussels court sitting in chambers decided to refer Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch to the criminal court. According to Mr Patrick De Wolf, that morning, after the decision of the court sitting in chambers, Mr Armand De Decker turned up at his office without making an appointment. Mr Armand De Decker was wearing his gown and introduced himself as Mr Patokh Chodiev’s lawyer344. Mr Armand De Decker inquired as to the intentions of the prosecutor’s office now that his client had been referred to the criminal court345.

Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047, p. 12. Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 4. 341 Ibid., p. 2. 342 Ibid., p. 4. 343 Ibid., p. 8. 344 Interview of Mr Patrick De Wolf, 10 May 2017, CRIV 54 K030, p. 15., interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045, p. 8 345 Interview of Mr Patrick De Wolf, 10 May 2017, CRIV 54 K030, p. 19. 339 340

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An imminent change to the plea bargain legislation was also mentioned.346 During his first testimony, Mr Patrick De Wolf told the enquiry committee on this matter: "As far as I remember, I also said that during my interview. I believe that it was indeed me who said there might be a change. In any case, what is important is that we were working on obtaining a deferred sentence. Even up until 9 March, the judge of first instance had agreed, in the court sitting in chambers, for the sentence to be deferred. But if there was still a possibility of a change on their side, we could still talk."347 In his second testimony, Mr Patrick De Wolf said that in February 2011 he was totally unaware of the change to the draft plea bargain law at the political level. He said during his second testimony before the enquiry committee that if he mentioned any change, it concerned the 2008 proposal to extend the scope of application of the plea bargain, as provided for in the 2008-2009 action plan. On this matter he told the enquiry committee: "But in any event, I can categorically state that I was not aware of any developments at the political level in February".348 Mr Patrick De Wolf stated that this was the first and the last time he met Mr Armand De Decker in his capacity as a lawyer in connection with the court case involving Mr Patokh Chodiev.349 The name of Mr Armand De Decker does not figure on any of the procedural documents to which the enquiry committee had access, except in a letter sent to him on 22 February 2011 by Prosecutor General Marc de le Court, informing him of the call from the public prosecutor's office against the order of the court sitting in chambers. 432. According to Mr Stefaan De Clerck, Minister of Justice, on Sunday, 20 February 2011, Mr Armand De Decker and Ms Catherine Degoul visited him at his home in Courtrai.350 Mr Stefaan De Clerck said on this matter: "To my great surprise, he was accompanied on that evening by a French lawyer. He stated that he had started working as a lawyer again and that he had been consulted in connection with an ongoing court case, a fact of which I was of course unaware when he made this appointment.

Ibid., p. 20. Ibid. 348 Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045, p. 9. 349 Ibid., p. 25. 350 Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 2. 346 347

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It turned out that it concerned the Chodiev case, which I knew nothing about at that time. Once it became clear that he wished to speak to me about an individual criminal case in respect of which he had been appointed, I made it clear to him that any intervention on my part was out of the question and that as Minister of Justice I could not and would not intervene in individual cases and that the Minister of Justice had only a right of positive injunction, i.e., the right to demand an investigation and prosecution in a case, and therefore certainly not the contrary. The conversation then turned to the possibility of a future legislative change, more specifically with the aim of extending the options in the case of a plea bargain. As I had hitherto had no involvement whatsoever in this matter, I cut the conversation short, saying that I needed to consult my office head, Jo Baret. Not long before that, the Council of Ministers had indeed received a notification, of which I neither the origin nor its effect. I also learned that the restricted office (cabinet restreint) had concluded an agreement on this subject at a meeting at which, quite rightly, I was not present.” (translation) 433. According to Mr Stefaan De Clerck’s staff, on 22 February 2011 Mr Armand De Decker turned up at the office of the Minister of Justice just before midday, accompanied by Ms Catherine Degoul. Mr Armand De Decker turned up at the reception without an appointment, introducing himself as Speaker of the Senate. Mr Jo Baret, head of the Minister of Justice’s office, received the two lawyers. When Mr Armand De Decker indicated that he had come to present him with a court case, office deputy head and magistrate Ms Paule Somers was called to the rescue. Mr Armand De Decker then explained that he was contacting them as lawyer for the Élysée, while Ms Catherine Degoul introduced herself as Mr Patokh Chodiev’s lawyer. The two lawyers requested the members of the office to intervene and to ensure that the Prosecutor's Office of Brussels would accept a plea bargain settlement in favour of their client, Mr Patokh Chodiev351. According to the information forwarded to the enquiry committee, at this meeting the lawyers Mr Armand De Decker and Ms Catherine Degoul made a connection between the case involving Mr Patokh Chodiev et al. and the commercial interests of France and Kazakhstan in connection with an "aerospace deal".

351

Interview of Mr Jo Baret and Ms Paule Somers, 7 June 2017, CRIV 54 K038, p. 3.

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At his interview with the enquiry committee, Mr Jo Baret said on this matter: "I remember that Ms Somers and I looked at each other with astonishment. We then immediately indicated that it was out of the question for the Minister of Justice to become involved in this type of business, that this issue was not within the remit of the minister and also that, by definition, the minister never interfered in individual court cases, and that they should contact the office of the prosecutor general of Brussels. I believe that they insisted, saying that they had already contacted the prosecutor’s office. In any event, they carried on insisting. I remember that at one point Mr De Decker added that the Elysée regarded this as a matter of great importance: "I have to tell you that the Elysée is taking a close interest in this". We then referred once again to the separation of powers and to the distinction between positive injunctions and negative injunctions, but I have to say that to be honest I have no idea why Mr De Decker made this request. During my many years at the Ministry of Justice and its office I had never encountered an approach of this nature. I also remember thinking that he was a lawyer and that he should therefore know that this was impossible, but I also suspected that he was trying to impress his lawyer colleague. The meeting did not last long. And ended at that point.".352 (translation) 434. After Mr Armand De Decker and Ms Catherine Degoul visited the office of the Minister of Justice, according to their testimony Mr Jo Baret and Mrs Paule Somers informed the Minister of this visit. Mr Stefaan De Clerck told the committee: "I had never told them about the approach made by Mr De Decker over the weekend. They told me about this visit immediately afterwards, and their position was that it was of course unthinkable that we take any action in connection with that case. They added somewhat scornfully that the approach had been made at the request of the Élysée and that Mr De Decker was rather proud of having been asked by the Élysée to act on its behalf. Apparently this is what he said to Ms Somers and Mr Baret. After that, the case was closed as far as we were concerned. No intervention or initiative resulted from these two meetings. Of course, I could not have done anything anyway. No initiative was therefore taken. I never mentioned it to anyone. It was out of the question that I do anything in response to such an inappropriate and unacceptable proposal."353 Mr Stefaan De Clerck said: "As far as the Élysée is concerned, the Chodiev case was certainly clearly presented. It seemed to me that he understood that this French lawyer had been appointed, inter alia, at the request of the Élysée.

Interview of Mr Jo Baret and Ms Paule Somers, 7 June 2017, CRIV 54 K038, p. 3. Ibid., p. 3. 353 Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, pp. 2-3. 351 352

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My understanding was that De Decker had been approached by Degoul. That is how understood it, that he was some sort of rather special lawyer tasked with liaising with Belgium. The way I see it, he was acting in the Chodiev case both on behalf of Degoul and with Degoul as Chodiev’s lawyer rather than as the Elysée’s lawyer. Nobody has actually said this, but the word "Elysée" probably came up in Degoul’s proposal, who was acting one way or another in connection with a major case in France".354 "As I saw it, he was clearly making contact in his capacity as a lawyer. I clearly understood that France had an interest in the case. Degoul was in charge and De Decker had been signed up for Degoul’s team.(...) As I see it, the interests of the French State were not the heart of the matter. It was a Belgian case, and it was a lawyer who came to talk about it. It was therefore a legal issue about a case that was being handled by the Belgian courts."355 (translation) "The case was with the public prosecutor's office. The case was being processed. The case was therefore known to and being processed by the public prosecutor’s office. The case was reviewed. Giving explanations to the public prosecutor made no sense as he was already reviewing the case. I cannot say what happened at the prosecutor’s or the General Prosecutor’s offices. I would have contaminated them by telling them that there had been interference in the current proceedings, which is strictly prohibited. I also said that I would not do it and that I did not wish to intervene. I would like to add that we were emerging from a period during which the discussion on the separation of powers in the Fortis case had had a lot of fallout. I had joined the government because there had been a major discussion about whether it was the Prime Minister or the Minister of Justice who had been in contact with the Judiciary about a case. So, there was no question that this would happen again. The separation of powers is obvious. I have not spoken to Yves Leterme again. I did not tell him. I kept it to myself. I never mentioned it to anyone. I wanted to ensure that this had no effect on anyone. That was my responsibility, and that was my choice. The request was unacceptable, and I would not and could not agree to it. Nor did I want to involve anyone else in this story.” 356 (translation)

Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 5 Ibid., p. 10. 356 Ibid., pp. 5-6. 354 355

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435. The Honorary General Prosecutor at the Brussels Court of Appeal, Mr Marc de le Court, told the enquiry committee that he would have intervened immediately if he had known that Mr Armand De Decker had been appointed by a foreign State: “So, when a lawyer came to me, saying or suggesting - we are still constructing hypotheses here - that he has been appointed by a foreign head of state, I immediately assailed him with questions as to why a foreign State or foreign Head of State would be interested in the case. And as I deduced from the explanations given to me that there was attempted interference by a foreign power in the Belgian decision-making process in this case, [the Belgian judicial decision-making process], rest assured that I immediately had a report sent by hand to the Head of State Security.” 357 He continued, saying: “ It is therefore clear that if (which he did not) Mr De Decker had told me thus, in so far as a lawyer introduces himself or might introduce himself in connection with this case, saying that he is the counsel of a foreign head of state who has nothing to do with the case, it is still, and I apologize to the person concerned, extremely curious and intriguing. There is a provision somewhere in the Belgian Criminal Investigation Code (art. 29), which provides for this type of case. This case is provided for by law.” 358 436. According to information provided to the enquiry committee, Ms Catherine Degoul met Messrs Ibragimov, Machkevitch and Chodiev on or around 23 February 2011. At this meeting Ms Degoul referred to a law that was examined in the Belgian parliament and which could help them find a solution to their legal problems. 8. Domestic pressures 437. At her interview, Ms Sophie Heuskin, former MR staff member on the Finance and Budget Committee in the House of Representatives, recalled that on 18 January 2011 the Finance and Budget Committee conducted an assessment of the implementation of the 108 recommendations of the parliamentary enquiry committee on major tax fraud cases. She added that it was important for Mr Bernard Clerfayt's office to have an accurate record of the implementation of these recommendations, with the report to be drawn up by the Court of Auditors in mind359.

Interview of Mr Marc de le Court, 21 July 2017, CRIV 54 K047, p. 7. Ibid., p. 23. 359 Interview of Ms Sophie Heuskin, 22 May 2017, CRIV 54 K034, p. 3. 357 358

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Mr Bernard Clerfayt confirmed that both he and Mr Carl Devlies were questioned by the committee about the implementation of these recommendations by various members of parliament who felt that they were not being implemented quickly enough360. The Finance and Budget Committee’s working group on Tax Fraud, which was responsible for monitoring the implementation of the recommendations of the parliamentary enquiry committee on major tax fraud cases, considered that the Finance Minister361 was responsible for implementing recommendation 36 on the plea bargain. 438. Recommendation 106 of the report of the parliamentary enquiry committee on major tax fraud cases stipulates that: "The Committee recommends that the competent ministers report annually to the House on the implementation of the Committee's recommendations. This report will be submitted to the Court of Auditors for analysis before it is reviewed by the competent committee.”. On 15 December 2010 the Court of Auditors began its task by asking the various offices for a progress report on the implementation of the recommendations. The Court of Auditors' analysis of 4 May 2011 mentions, in the chapter on measures currently being implemented: “Recommendations 34 and 36. With regard to the legal rules on banking secrecy and amicable settlements, one should refer to the recent review by the House of the draft miscellaneous provisions law”362 .” 9. Banking secrecy 9.1 Proposals to the House of Representatives for a law on banking secrecy (24 November 2010 16 February 2011) 439. During the 2007-2010 legislature, on 16 October 2009 the sp.a and PS political groups, and on 22 October 2009 Ecolo-Groen, submitted proposals on banking secrecy under DOC 52 2205 and 52 2216 respectively. No objections to these proposals were received from Council of State (DOC 52 2205/002 and DOC 52 2216/002) and the Privacy Committee (DOC 52 2205/003 and DOC 52 2216/003). These proposals lapsed following the collapse of the government in April 2010.

Interview of Mr Bernard Clerfayt, 12 July 2017, CRIV 54 K052, p. 23. Source: Table sent to members of the Working Group on Tax Fraud and their staff tasked with following up the enquiry committee’s recommendations. 362 Analysis by the Court of Auditors approved by the General Meeting of 4 May 2011: “Implementation of the recommendations of the parliamentary enquiry committee on major tax fraud cases, Analysis by the Court Of Auditors of the report of the competent Ministers, Implementation of Recommendation 106”, p. 6. 360 361

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440. During the 2007-2010 legislature, the Open Vld group tabled a draft law amending the Belgian Criminal Investigation Code with regard to plea bargain settlements and the release declaration under number DOC 52 1817363 (16 February 2009). This proposal lapsed following the collapse of the government in April 2010. 441. On 24 November 2010, the Finance and Budget Committee of the House of Representatives began reviewing proposals for the general or even total lifting of banking secrecy (lifting of internal banking secrecy): Proposal Ecolo/ Groen (DOC 53 0095), tabled on 6 September 2010, proposal sp.a/PS (DOC 53 0130), tabled on 10 September 2010 and Proposal cdH (DOC 53 0665), tabled on 22 November 2010. These proposals were intended to address the enquiry committee’s recommendation 34, “Major Tax Fraud” contained in its report of 7 May 2009. 442. On 24 November 2010, the committee decided to organize hearings on these draft laws. (see DOC 53 1312/001). 443. In an email reply dated 1 December 2010, for the attention of member of parliament Damien Thiéry, who questioned him about the approach to be adopted following these discussions, Mr Bernard Clerfayt said that Mr Didier Reynders had recalled on 24 November “his wish to link progress on banking secrecy to the “Una via” and “plea bargain” issues.364 When asked about this email, Mr Bernard Clerfayt365 said that “in general, “the plea bargain issue, banking secrecy, and Una via” were cases on which we, i.e., MR in the broadest sense, wished to move forward concurrently. So, the wish to link the cases was a way of advancing the priorities of some at the same time as the priorities of others. But I do not remember, even if this email and this date establish a formal link between the three cases, whether this link began on that date or on a date close to that, if that is the question. As far as I am concerned there was a link. I have always known that.”

363

Sponsors of the draft law: Ms Carine Van Cauter, Mr Luk Van Biesen and Mr Herman De Croo.

364 Email of 1 December 2010 from Mr Bernard Clerfayt to Ms Guyot Caroline with Messrs. Degrève Emmanuel and Smets François

copied in. 365 Interview of Mr Clerfayt, 12 July 2017, CRIV 54 K052, pp. 4 and 5.

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444. The first committee hearing by the Finance and Budget Committee was held on 8 December 2010. On that day the only speaker was Mr Axel Haelterman, who gave an additional response to the committee on 22 December. During this hearing, Mr Axel Haelterman established a link with the plea bargain (as he had already suggested to AWDC on 22 November366: "It thus seems equally advisable that the improvement in investigation possibilities should go hand in hand with an improvement in the opportunities to settle tax cases in which the taxpayer and the tax authorities, whether supervised by the public prosecutor’s office or not, have finally agreed on levies or deals.”367(translation). 445. In an email sent to various members of parliament (Messrs Servais Verherstraeten and Jan Jambon, Ms Veerle Wouters, Ms Gwendolyn Rutten and Mr Dirk Van der Maelen) Mr Axel Haelterman referred to the reservations he expressed to this committee regarding banking secrecy: “in my speech, I also stressed the need to examine the text of banking secrecy in the context of other measures, which are also advocated by the Fraud Enquiry Committee and the government’s Working Group on the Taxpayer’s Charter, with at the top of the list the Una via approach and the need to decriminalize certain tax offences for reasons of effectiveness, and also the extension of the plea bargain system.” 368 (translation) 446. The second committee hearing by the Finance and Budget Committee was held on 19 January 2011. The speakers were Ms Martine Milliet-Einbinder, Center for Tax Policy and Administration (OECD); Ms Michèle Perolat, Senior Director, Taxation and Customs Union General Directorate (European Committee); Mr Michel Vermaerke, Managing Director (Febelfin); Mr Philippe Lambrecht, Deputy Secretary-General (FEB); Mr Christophe Quintard, trades union representative. Feb, OECD, Febelfin and the European Committee subsequently provided additional replies on 28 January, 31 January and 21 February 2011 respectively.

Email from Mr Axel Haelterman of 22 November 2010 from the documentation produced by AWDC, part III. DOC House 53 1312/001, p. 7. 368 Hearing of Mr Servais Verherstraeten, 17 May 2017, CRIV 54 K033, p. 14. 366 367

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447. Following a review of these draft banking secrecy laws and the hearings devoted to them, Ms Sophie Heuskin, co-worker of the MR Group in the House of Representatives who was monitoring the case at the time, said “there is already pressure from the authors of the various proposals to promote their texts, and an alternative majority threat that could be done without MR”369. Following these hearings, Ms Sophie Heuskin contacted the office of the Minister of Finance, Mr Didier Reynders, and the Tax Fraud Prevention Office of State Secretary Bernard Clerfayt, to determine what position the MR group in the House should adopt with respect to the various draft laws. 448. On 20 January 2011 a meeting was held between several members of the MR Group in the House of Representatives, the Finance Office and the Tax Fraud Prevention Office. At this meeting, the Tax Fraud Prevention Office indicated that it is finalizing a draft law for the controlled lifting of banking secrecy, which can be tabled in the House so that the MR is involved in the debate. “It proposes to include a section on plea bargains in the draft bill. In an email dated 20 January 2011370 summarising this meeting, Mr Emmanuel Degrève wrote to Mr Nicolas Lagasse regarding the bank investigation: “we must sound out our “ministers” and, with regard to the plea bargain: “There is “historically” a draft from Devlies (which I attach hereto). So, it is not a text by our firm, but we were associated with its signature. This text could never be tabled in the Government due to socialist opposition.”371 This is the text of the Panel of Prosecutors General372. This text had been sent on 31 July 2009 by Mr Bart Van Humbeeck (office of Mr Carl Devlies) to Mr Emmanuel Degrève (office of Mr Bernard Clerfayt) so that, in accordance with the request of the Finance and Justice Inspector, the opinion of the finance inspector is obtained by Mr Bernard Clerfayt's office. This email was sent to Messrs Rudy Volders (office of Mr Reynders), JeanFrançois Smets (Clerfayt office) and Bart Vandenberghe (Devlies office).

Interview of Ms Heuskin, 22 May 2017, CRIV 54 K034, pp. 2-3. Documents produced by Mr Jean-François Smets. 371 ibid. 372 Documents produced by Mr Jef Smits. 369 370

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In an email reply on the same day, Mr Jean-François Smets reiterated to Mr Bart Van Humbeeck the wish of Mr Bernard Clerfayt to co-sign this text. Mr Jean-François Smets sent this text to Mr Emmanuel Degrève and Ms Satoko Nakayama again on 20 January 2011373. He told the enquiry committee that he had never been invited to look into the Chodiev case during the period when he was Secretary of State and had never heard of any particular issues about problems specific to the plea bargain for any cases whatsoever374. At his hearing, Mr Bernard Clerfayt 375 explained the linkage operated by his office by the fact that he was seeking partners to promote his vision of the “banking investigation”. However, Open Vld and CD&V both have a text on the plea bargain. According to Mr Bernard Clerfayt, this is a political tactic. 449. By email of January 24, 2011, “the draft law incorporating the two texts (banking investigation and plea bargain), in accordance with the Minister's decision (Ed: Mr Didier Reynders)”, was sent by Mr Emmanuel Degrève to Mr Nicolas Lagasse, with various members of the Reynders and Clerfayt offices and the MR group of the House of Representatives copied in. He asked him to determine who should contact who for the co-signature of the text, “for which the Minister (Ed: Mr Didier Reynders) suggested co-signing by CD&V and/or N-VA?” 376. On 25 January 2011, Mr Lagasse replied that he had contacted CD&V to suggest that they table together the texts on the lifting of banking secrecy and the plea bargain. He wondered whether it was better to submit one text or two separate texts. The next day, Mr Jean-François Smets told his colleagues in the Clerfayt office that “if one splits it into two texts, CD&V will obviously sign the plea bargain but not the bank investigation”377.

Documents produced by Ms Sophie Heuskin. Interview of Mr Bernard Clerfayt, 12 July 2017, CRIV 54 K052, p. 2. 375 Interview of Mr Bernard Clerfayt, 12 July 2017, CRIV 54 K052, p. 6. 376 Documents produced by Mr Jean-François Smets. Email dated 24 January 2011 from Mr Bernard Degrève to Mr Nicolas Lagasse. 377 Documents produced by Mr Jean-François Smets: Email dated 26 January 2011 from Mr Jean-François Smets to Ms Satoko Nakayama and Mr Bernard Degrève. 373 374

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450. On 25 January 2011, the CD&V’s Political Secretary received from his cdH colleague a draft a law by Messrs Josy Arens and Christian Brothorn “amending Articles 322 and 374 of the Belgian Income Tax Code of 1992 and inserting Article 333/1,” in order to relax the conditions for the lifting of banking secrecy in relation to income tax378. He asked whether the CD&V group wanted to co-sign this proposal. 451. On the same day, 25 January 2011, the MR Political Secretary informed the CD&V Group that the MR Group had prepared a text including a regulation for both banking secrecy and the plea bargain, but that the MR had not yet decided whether it would table this text in the form of a single draft law or two separate draft laws379. The MR group invited the CD&V group to co-sign this text. The Political Secretary of the CD&V replied that he would submit the text to his group. The next day, on 26 January 2011, the MR Political Secretary told the CD&V political Secretary that his group would rather the text was tabled as a whole, i.e., as a single draft law encompassing banking secrecy and the plea bargain380. The same day, the Political Secretary of CD&V replied to the Political Secretary of MR that his group would have an internal consultation on this issue the following week and that he would keep him informed. On 27 January 2011, the Political Secretary of CD&V indicated to the Political Secretary of MR that this internal consultation would take place on 1 February 2011, after which the Political Secretary of MR insisted on being informed as soon as possible of CD&V's position, as the Finance and Budget Committee was meeting on 2 February 2011 to discuss draft laws on banking secrecy, inter alia. The Political Secretary of the CD&V replied that MR may ask for its draft law to be considered, regardless of whether CD&V co-signed it. On the same day, 27 January, MR tabled the draft law on both banking secrecy and the plea bargain anyway, which reproduces verbatim the 2009 text (see observation no. 379 above) on the plea bargain.

378

DOC 53 0665/001.

379 Interview of Mr Jef Smits, 17 May 2017, CRIV 54 K033, p. 4; Documents produced by Mr Jef Smits, Part 1; Documents produced

by Ms Sophie Heuskin. 380 Documents produced by Mr Jef Smits.

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452. As MR had still not received a response from CD&V to its request to co-sign its proposal by 31 January 2011, it contacted the Open Vld group and asked it to co-sign the text. Open Vld advised that it had its own proposal on the plea bargain, namely the draft law tabled in 2009 by Ms Carina Van Cauter, and that it had already been filed again with the Legislative Secretariat 381. In the email sent the same day to her Open Vld colleague, Mr Stefan Knaepen, Ms Sophie Heuskin wrote: “as i told you, we want to table a single text that covers both aspects (banking secrecy and the plea bargain). We need to see whether it is compatible with your text on the plea bargain. If it is not, we could always rework our text. The aim is to be in a strong position as regards the other parties and their proposals”382. 453. On the initiative to table a draft law by both Open Vld and MR, Ms Carina Van Cauter, Open Vld Group member of parliament, told the enquiry committee: (...) I can tell you spontaneously that they came looking for me at a meeting of the committee on sexual abuse, whose work was ongoing during the same period. The office, or at least somebody claiming to be an employee of the Reynders office, asked me whether he could combine our text with the draft law on the lifting of banking secrecy. This was the case, because as you know, the text was tabled in Parliament and debated.” (translation) Later on, she said: “(...) I don’t recall exactly the date when we had contact with a person from the Reynders office. It was someone I didn't know personally and who claimed to be a member of the Reynders office.” (translation)

381 382

Interview of Ms Sophie Heuskin, 22 May 2017, CRIV 54 K034, p. 3. Documents produced by Ms Sophie Heuskin for the enquiry committee.

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In the course of its work the enquiry committee tried, by questioning various interlocutors and in particular members of the Reynders office, to find out who the person was who contacted Ms Carina Van Cauter but was unable to obtain this information. 454. On 2 February 2011, the day after the internal consultation, the CD&V Political Secretary informed his colleague from MR that his group would itself table “a draft law”, by which he meant a draft law on banking secrecy, because CD&V group383 tabled a draft law on banking secrecy on 3 February 2011, and it was printed on 9 February 2011. CD&V's draft law on the plea bargain had already been tabled, on 13 December 2010. It reproduces the text of the preliminary draft law of July 2009 (see observation no. 380 above). On 9 December 2010, Ms Hildegard Penne of the Minister of Justice's Office had indeed informed her colleague that she had forwarded the proposal for the extended plea bargain to Mr Servais Verherstraeten “so that he could table it as a draft law”384. (translation) One week earlier, on 2 December 2010, the CD&V group employee had informed Mr Axel Haelterman385 about the tabling of this draft law, who then reported it to AWDC on 3 December 2010. The CD&V draft law on the extended plea bargain (DOC 53 1252) was printed on 24 February 2011. Mr Servais Verherstraeten said on this matter: “Out of loyalty to our Minister of Justice and our State Secretary for Fraud prevention, we waited before giving permission to print.” 386 (translation) 455. On 2 February 2011, various emails were exchanged between the offices of Mr Bernard Clerfayt, Mr Didier Reynders and MR members of the House of representatives to determine which text was to be tabled or co-signed by MR387. Initially, Mr Nicolas Lagasse wondered whether it was not inappropriate to table their draft law while the plea bargain part was a CD&V text. Mr Rudy Volders replied that he had no problem with tabling the text with the “plea deal” part and recommending contacting the Open Vld, which he said was prepared to co-sign the proposal and was in contact with N-VA, which was also willing to sign the text. Mr Rudy Volders concluded that it would be a good thing if the joint text was tabled by the three parties.

Documents produced by Mr Jef Smits. Interview of Mr Tom Van Wynsberghe, 21 June 2017, CRIV 54 K044, p. 2 385 Documents produced by AWDC, Appendix 1, Part IIIa). 386 Interview of Mr Servais Verherstraeten, 17 May 2017, CRIV 54 K033, p. 3. 387 Documents produced by Ms Sophie Heuskin. 383 384

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Secondly, Mr Nicolas Lagasse, after learning that CD&V had tabled the draft law containing Mr Carl Devlies' plea bargain bill, wondered whether it was appropriate for MR to co-sign it, which would then involve MR tabling a proposal limited to the “banking secrecy” part. Mr Rudy Volders replied “To avoid one being dealt with before the other, I propose that we keep both subjects in a single proposal”. At the end of the day Mr Nicolas Lagasse announced that MR would table the proposal containing a banking secrecy part and a plea bargain part the next day. Mr Nicolas Lagasse explains: “the remaining question is whether the second part will consist of the “Devlies” or the “Van Cauter” text, Open Vld (which goes less far than the CD&V text. Using the Open Vld text leaves the option open for a deal with CD&V on the “banking secrecy” part: you accept our guidelines on banking secrecy, we accept your text. We thus form a united front on the political right (mutual understanding)388”. He also indicated that he had warned Open Vld that it would be politically awkward for MR to co-sign this text by N-VA. “I argued that this was a secondary issue: NVA will not support PS texts, so in theory they will be on our side.” Mr Rudy Volders replied that they should use Ms Carina Van Cauter’s text. “The political balance between MR and Open Vld would thus be guaranteed.” In the evening, Mr Jean-François Smets stated that Ms Carina Van Cauter’s text did not have the same scope CD&V’s text. He explained that this was not a plea bargain, but a specific judicial arrangement reserved for voluntary settlements. It did not apply to cases that are referred to an investigating judge, as was the case with the CD&V draft law. 456. Also in the evening of the same day, Mr Bernard Clerfayt sent an email to Mr Emmanuel Degrève, copying in Mr Nicolas Lagasse and Mr Rudy Volders, saying: “All of this is in line with the advice I gave at noon today. 1. a common banking secrecy + plea bargain text

388

Ibid

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2. a common MR + Open Vld text, without co-signature but backed by N-VA. 3. The Van Cauter text if it is good. 4. Next we will look to create WGs on each topic by offering to back CD&V on the plea bargain in

exchange for reciprocity on banking secrecy.

5. I will be joining the group meeting tomorrow at noon and we can talk about it then.”

457. This ultimately lead to the joint MR-Open Vld draft law (DOC 53 1185/001)389, which was printed on 8 February 2011 and which included a section on the supervised lifting of banking secrecy, as prepared by MR, and a section on the plea bargain, as prepared by Open Vld. Mr Clerfayt390 recalled at his interview that MR’s final draft law did not apply to crimes and was therefore not applicable to the case of Mr Patokh Chodiev et al. since in this case, one of the accusations was forgery, which is a crime. 458. On 16 February 2011, the draft banking secrecy laws - of which there were now five - were reviewed by the Finance and Budget Committee. No decisions were taken. The proposals will be reviewed again later. 9.2. External pressure regarding banking secrecy (2010)

459. After the 2008 financial crisis, countries were called upon by the G20 and the OECD to exchange financial data when so requested in order to combat capital flight and tax fraud.391 The G20 meeting held in London on 2 April 2009 resulted in the participants taking particularly firm positions. The need for transparency and international cooperation in tax matters was reaffirmed and countries reluctant to sign up to the OECD standard were threatened with sanctions. On the same day, the OECD released a document naming the eighty-four States participating in the Global Forum on Transparency and Exchange of Information (hereinafter the Global Forum) in three lists, based on the progress made by each country in implementing the OECD standard. The first, the white list, listed those States that had already substantially implemented this standard.

Sponsors of the draft law: Mr Philippe Goffin (MR), Mr Damien Thiéry (MR), Ms Gwendolyn Rutten (Open Vld), Ms Carina Van Cauter (Open Vld) and Ms Marie-Christine Marghem (MR). 390 Interview of Mr Bernard Clerfayt, 12 July 2017, CRIV 54 K052, p. 26. 391 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 4. 389

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The second, the grey list, introduced an intermediate category of States which, although they had signed up to the OECD standard, have not yet implemented it to a degree deemed sufficient. The third, the blacklist, included those States that had not yet committed to applying the OECD standard. Belgium was on the grey list. For a State to be included in the White List, it must have signed at least twelve agreements providing for administrative assistance that meets the requirements of the OECD Standard. In early April 2009, however, Belgium could only point to its signing of the Convention with the United States.392 460. Mr Chris Delaere said the following about this international pressure: “They (the Americans) imposed this measure at the G20. It was immediately clarified on this occasion that this would put a stop to capital flight and cross-border tax fraud, etc., which were also in equal measure largely responsible for the 2008 financial crisis. They went to the OECD and the Global Forum, which is an offshoot of this organization, to announce that they wanted to see results by the next G20 meeting. (.) Belgium was on the grey list and even risked getting on the black list if, within a specific time limit, it did not conclude twelve tax agreements that clearly stipulated that banking secrecy was no longer applicable.”393 (translation) The government then signed, within a very short period, twelve agreements394 for administrative assistance that met the requirements of the OECD standard. As a result, on 17 July 2009 Belgium was added to the OECD White List.395 461. In September 2009, the Global Forum on Transparency and the Exchange of Information decided to introduce a system for evaluating the effectiveness of the implementation of OECD standards by participating States. This system, called “peer review”, introduces two review phases for each State under supervision. The first peer review phase, which runs from 1 July 2010 to the end of February 2011 for Belgium, consists of an analysis of the legal and regulatory framework set up by the relevant State for the exchange of information.396 The Office of the Minister of Finance is regularly informed of developments in the case.397

Senate Doc, n° 5-969/1, 2010-2011, pp. 6-7. Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 26. 394 With the following countries: Monaco, Australia, Netherlands, Finland, United Kingdom, Norway, France, San Marino, Andorra, Denmark, Singapore and Luxembourg (Senate Doc, nos. 5-961/1 to 5-972/1, 2010-2011). 395 Senate Doc, n° 5-969/1, 2010-2011, p. 7. 396 Ibid. 397 Letter of 3 May 2017 from Mr Hans D'Hondt, Chairman of the Management Committee, Federal Public Finance Department, to the enquiry committee. 392 393

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462. In March and April 2010, the Council of State issued an opinion on the twelve double taxation treaties.398 The Council of State specified in particular: “The conclusion of such treaties is governed by the above-mentioned cooperation agreement of 8 March 1994. According to this cooperation agreement, communities and regions must in this case be associated with the act within the framework of the InterMinisterial Conference on Foreign Policy and with the signing of the treaty, which apparently did not take place. The combined nature of this also means that the Community and regional parliaments will still have to give their consent to the treaty.” 399 Mr Chris Delaere said this about these opinions: “But we must have been very disillusioned: we had problems with the Council of State, which suddenly pointed out that, with regard to the special financing law and the division of powers, all the double taxation treaties would have to be submitted to the six Parliaments, which would all have to ratify them. All of this resulted in a lengthy delay and a considerable administrative burden. The twelve treaties were therefore not ratified in time, which drew attention to our country when it came to the peer review. The first indications published in mid-2010 were very negative.”400 (translation) 463. As a result of the peer review, Belgium came under pressure to review its legislation on banking secrecy. Mr Chris Delaere said the following about this pressure: “Diplomatic interventions and negotiations (...) have helped reduce it significantly in the second draft401 - it was more towards the end of 2010 - but we were nevertheless informed that Belgium would not get off so easily. They saw on the one hand that our banking secrecy legislation had not been amended and that there were still obstacles to this, and on the other hand, the ratification of the double taxation treaties was dragging on.

Senate Doc, n° 5-961/1 à 5-972/1, 2010-2011. Senate Doc, n° 5-961/1, 2010-2011, p. 41. 400 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, pp. 26-27. 401 Of the report prepared by the Global Forum’s assessors as part of the peer review”. 398 399

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We could point to the twelve agreements signed through a protocol, but they were still not in force. In other words, we had a score of 0 rather than 12. I assume that it was at that point that the Minister of Finance changed tack, perhaps due to pressure from the administration. I read aloud a passage (see next recommendation) from a memo in which the administration clearly states that it cannot see how we are ever going to get off the blacklist if we do not change anything as regards banking secrecy. And I can imagine that as pressure grew, the Minister of Finance had to understand at some point that his light version would not be sufficient.”402 (translation) 464. In the second half of 2010, the Tax Authorities warned Finance Minister Didier Reynders that an adjustment to banking secrecy was necessary to avoid being added to the list of tax havens. The warning was repeated more clearly in these terms in an email dated 22 January 2011: “that is why I strongly emphasize the need to submit to Parliament the urgent provisions draft law containing my proposal to amend article 318 of the Belgian Income Tax Code.” 465. The draft Belgian report prepared by the Global Forum assessors was examined by the Peer Review Group (hereinafter “PRG”) of the Global Forum at the meeting of this group during the week of 28 February to 3 March 2011, in the presence of members of the Finance SPF administration, and approved on1 March 2011403. 466. In an email dated 1 March 2011404, the Finance SPF administration informed the offices of the Deputy Prime Minister, the Minister of Finance and the State Secretary for Tax Fraud, inter alia, that on that day, phase 1 of the peer review had taken place in Paris at the OECD’s offices. This email mentioned, inter alia, that:

Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 27. Letter of 3 May 2017 from Mr Hans D'Hondt, Chairman of the Management Committee, Federal Public Finance Department, to the enquiry committee. 404 Attachment of the letter of 3 May 2017 from Mr Hans D'Hondt, Chairman of the Management Committee, Federal Public Finance Department, to the enquiry committee. 402 403

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“3. The result of this phase 1 was that Belgium needed to improve the situation, i.e.: — Either quickly implement agreements with major partners: France, Germany, Netherlands and the United Kingdom; — Or amend Article 318 CIR 92 (to allow at least the international exchange of banking information) (…). 4. It is clear that this outcome (in itself unsatisfactory) must be a stimulus for the decision to amend Article 318 CIR 92, for the implementation of the signed agreements entails referral to the regional and community parliaments and delays incompatible with the requirement for a rapid solution.” 467. The supplementary report on Phase I of peer review was discussed during the week of 18-22 July 2011 and approved on 19 July 2011.405 468. On 19 July 2011 the Finances office was informed by the Finance SPF that “the supplementary report concerning Belgium (which follows the publication of the law of 14 April 2011 and the lifting of banking secrecy for the purposes of the international exchange of information) was adopted by the PRG at the meeting of the Global Forum on Transparency and Exchange of Information currently being held in the Cayman Islands. All components of Belgium’s legal framework are now considered to be in place. Belgium has therefore successfully completed Phase 1 of the peer review.”406 9.3. Introduction lifting of international banking secrecy in the miscellaneous provisions law (October 2010 - 3 February 2011) 469. It was in this general context that, at the inter-office working group on the preliminary draft law implementing necessary miscellaneous provisions that had been in preparation since October 2010, the office of the Minister of Finance asked to introduce a provision to relax banking secrecy in the event of a request from abroad (lifting of international banking secrecy).

Letter of 3 May 2017 from Mr Hans D'Hondt, Chairman of the Management Committee, Federal Public Finance Department, to the enquiry committee. 406 Ibid. 405

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This provision was referred to the meeting of the Directors of General Policy407 - intended to prepare the meeting of the Council of Ministers of 19 November 2010 because the office of Deputy Prime Minister Laurette Onkelinx was opposed to it. The PS408 feared that if the lifting of international banking secrecy was adopted in the necessary miscellaneous provision law, the PS proposal on the lifting of bank secrecy which had an internal scope, currently under discussion in the House of Representatives, could then not be adopted: “If the PS members of parliament vote on the proposed text, all the OECD-related pressure factors will disappear: the OECD will no longer be able to accuse Belgium of blocking access to information.” The PS Group also considered that “as agreements the agreements adopted by the government and parliament had provided for it”409, this case, like the plea bargain, should be discussed in parliament since it was the part of the implementation of the recommendations of the enquiry committee responsible for examining major tax fraud cases. In addition, he rejected the argument of the urgency of the peer review, considering that in time it could be achieved through proposals debated in parliament, as there was a broad consensus on the internal lifting of banking secrecy if the committee's recommendations were followed. 470. In the absence of an internal consensus, the Council of Ministers decided to send the preliminary draft law to the Council of State with the contested provision while continuing to seek an agreement.410 The notification of the Council of Ministers of 19 November 2010 stated that “with regard to article 47, A “Policy Coordination” working group, which will meet on the initiative of a representative of the Minister of Finance and will moreover be composed of representatives of the members of the restricted cabinet and the Minister of Foreign Affairs, will consider, for a second reading, the existing opinions of the Council of State on draft laws assenting to the conventions concluded in the field of the exchange of banking data, as well as the OECD’s peer review timetable.”411 412 (translation).

407

Directors of Deputy Prime Ministers' Offices.

408 Memo prepared for Ms Laurette Onkelinx, Minister of Social Affairs and Public Health for the Council of Ministers of 3 February

2011 by her advisers, Ms Florence Lepoivre and Mr Didier Leemans, pages 3 to 5. 409 Interview of Mr Hervé Parmentier, 5 May 2017, CRIV 54 K028, p. 2. 410 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028. 411 Memo from Mr Chris Delaere, to the enquiry committee, page 3. 412 Notification of the Council of Ministers of 19 November 2010.

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471. On January 18, 2011, the miscellaneous provisions draft law (provisions that are no longer considered necessary as was the case in the title of the preliminary draft)413, was once again discussed in IWG after receiving the opinion of the Council of State. The provision concerning the lifting of international banking secrecy did not garner the approval of the PS, CD&V and cdH.414 According to Mr Chris Delaere, their objections were as follows: “1) the administration is not sure that the proposed measures will actually work, 2) it is expected that the OECD, too, considers that they are just window dressing, 3) these measures short-circuit the discussion in Parliament, where the Monitoring Committee of the parliamentary enquiry committee on major tax fraud cases was seeking a more widespread lifting of banking secrecy, 4) because blatant discrimination between foreign nationals and Belgians is created, as a result of which 5), Belgian banks are in practice preferred over foreign banks, leading to fears that the EU might deem this situation unacceptable.” 472. Again with regard to this meeting of 18 January 2011, Mr Chris Delaere415 said that the PS felt that the proposed text did not go far enough, since the adaptation would only allow the transfer of Belgian information abroad and would not enable the Belgian tax authorities to obtain information from abroad about Belgian taxpayers. CD&V and cdH also were convinced that the exchange of financial data was advancing rapidly, to the extent that (in view of, inter alia, the Savings Directive, the fight against the financing of terrorism, the agreement with the United States, and G20 and OECD actions) fiscal banking secrecy such as it existed then was untenable in the long term.

Chronology by the Chancery concerning the miscellaneous provisions draft law. Opinion issued by Mr Chris Delaere to the Prime Minister on the necessary miscellaneous provisions draft law for the Council of Ministers meeting on 3 February 2011. 415 Memo by Mr Chris Delaere, p. 4. 413 414

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473. The preliminary draft was once again discussed in IWG on 31 January 2011. According to Mr Chris Delaere, it was during this IWG that the linkage with the plea bargain was made by the office of the Deputy Prime Minister and Minister of Finance Mr Didier Reynders416 (observation no. 489 e.s. below). 474. Mr Henin and Mr Volders testified at their interview that they had not received any instruction from Mr Reynders417 to create a linkage with the plea bargain, nor had they had any contact with Mr De Decker418 or the diamond trade 419 in connection with this case. 475. The preliminary draft was again discussed at a final IWG on 1 February 2011420. 476. According to Mr Chris Delaere, it emerged from the three inter-office meetings held on 18 and 31 January and 1 February 2011: “that the Finance office, too, is aware of the need to go beyond a mere window-dressing policy visà-vis the OECD, that MR wishes to link a fundamental extension of the plea bargain to more comprehensive restrictions on fiscal banking secrecy (even though this point is not included in the draft law); that CD&V and cdH are not opposed to this deal and that the PS now accepts that fundamental initiatives are to be taken in this regard; that there is no consensus on the text on banking secrecy, but views are already converging; that it should be noted that several draft laws on banking secrecy and the plea bargain have already been tabled in the House; that Parliament has full powers but the government does not: the government is in routine business and the composition of the future government is now very uncertain.”421 (translation).

Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 10: “however, I informed the Prime Minister by email on 31 January or 1 February that the banking secrecy case had been linked politically to the plea bargain case. I assume that this was done on January 31 by the office of Deputy Prime Minister Didier Reynders”. 417 Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, p. 18; interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, pp. 11 and 18. 418 Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, p. 40; interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, pp. 22 419 Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, p. 41; interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, pp. 22 and interview on 14 June 2017, CRIV 54 K040 pp. 12 and 14. 420 Ibid., p. 5. 421 Memo from Mr Chris Delaere, to the enquiry committee, page 4. 416

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477. This inspired Mr Chris Delaere to write a draft notice for the attention of the members of the Deputy Prime Ministers' representatives, later presented at the meeting of the General Policy Directors (DPG) of the federal government members' offices on 2 February 2011: “the Council has taken note of the fact that at present, a number of draft laws relating to possible changes to “fiscal banking secrecy” are being examined by the competent committee of the House. When parliament reviews the draft, the government will submit to the House’s competent committee a draft law intended to comprehensively and definitively resolve the issue of fiscal banking secrecy and to extend the plea bargain system as part of the criminal prosecution of fraud. In this regard, he will propose that the provisions resulting from this solution be tabled in the form of amendments to the draft. It would therefore be appropriate to determine whether the current provisions of Chapter 1, Section 4, of the preliminary draft (Ed: which deal with banking secrecy) will be maintained or deleted pending the parliamentary discussions.” 478. After the meeting with the DPG, which did not result in an agreement, Mr Eric Kirsch asked Mr Chris Delaere to try to reach an agreement with his colleagues in the Tax IWG.422 “In these circumstances, it was unacceptable for me to find ourselves in a situation where our country must publicly recognize, before an OECD forum, its inability to fulfil its international commitments owing to the powerlessness of a government in routine business." (translation)423. 479. At his interview, Mr Olivier Henin noted that the linkage was never mentioned in DPG. As far as he was concerned it was never a problem. He added that the only problem was the scope of the lifting of banking secrecy and the place where it was to be dealt with.424 480. After further consultation with PS representatives, and another consultation with PS and MR representatives on 2 February 2011 late in the evening, a new version of the draft notification was sent to the Council of Ministers. (see observation no. 504 below)425.

Interview of Mr Eric Kirsch, 5 May 2017, CRIV 54 K028, p. 2. Ibid., p. 2. 424 Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, p. 17. 425 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 6. 422 423

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481. The memo drafted by Mr Rudy Volders, head of the Minister of Finance office, to his Minister in advance of the Cabinet of Ministers meeting of 3 February 2011 mentions that the provision contained in the draft law that avoids Belgium being on the grey list does not go far enough for the PS and cdH, who refer to the broader debate on banking secrecy taking place in House of Representatives. “To break the deadlock, I suggested that MR agree to a broadening of banking secrecy, provided that progress was also made on the plea bargain.” (translation)426. 482. Mr Hervé Parmentier427, head of the office of Ms Laurette Onkelinx, Deputy Prime Minister and Minister of Social Affairs and Public Health, explained that the PS had always opposed the introduction of the provision on the lifting of international banking secrecy in the necessary miscellaneous provisions law because this provision did not apply to internal banking secrecy and did not provide for a central register of accounts. In the distribution of work between the government and Parliament, Parliament had to deal with both the banking secrecy issue and the plea bargain, which depended on the implementation of the recommendations of the Committee on Tax Fraud. The political reasoning of Ms Laurette Onkelinx's cabinet was that proposals had been tabled in Parliament for a lifting of banking secrecy broader than that proposed by the Minister of Finance in the necessary miscellaneous provisions law. In addition, they wanted to go beyond the recommendations of the Major Fraud Committee by introducing a central register of bank accounts. They concluded: “In any event, from our perspective, the government was not the right place to discuss banking secrecy. I also recall that we were in routine business at the time; ‘routine business’ also meant a possible alternative majority of any kind.” This possibility of an alternative majority was mentioned in an internal memo to Mrs Laurette Onkelinx in preparation for the Council of Ministers meeting on 3 February 2011: “according to my contacts with the CD&V advisor at the first: CD&V is very keen on the plea bargain in judicial matters” (...) “The CD&V advisor also gave me the impression that they were not ruling out an agreement on the three components (banking secrecy, plea bargain and central register). With or without MR’s agreement.428”.

Document sent to the enquiry committee by Mr Rudy Volders. Interview of Mr Hervé Parmentier, 5 May 2017, CRIV 54 K028, p. 2.; Memo drafted for the Minister of Social Affairs and Public Health, Ms Onkelinx, for the CM on 3 February 2011 prepared by her advisers, Florence Lepoivre and Didier Leemans, pages 3 to 5. 428 Memo drafted for the Minister of Social Affairs and Public Health, Ms Onkelinx, for the CM on 3 February 2011 prepared by her advisers, Florence Lepoivre and Didier Leemans, page 5. 426 427

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483. According to Mr Chris Delaere, this was also explicitly mentioned in CD&V’s electoral programme. “It was also in Carl Devlies’ action plan. These same intentions were reflected in Jo Vandeurzen’s 2008 general policy memo. There was therefore no surprise that MR would let us know that they were putting this case on the table. Let’s say that it was certainly not unexpected. In fact, we did not wonder why they were making this proposal or ask what it was concealing. It was on the cards. We had been kicking this project around for years.” 484. Mr Chris Delaere said that the plea bargain was a point on which CD&V wanted to move forward, as did MR and Open Vld, “but mainly MR”429. 485. Mr Emmanuel Degrève said: “I can be categorical on this point. It was not only MR that was demanding on one thing, on both things or on a link. The plea bargain was a case that was first and foremost the will and wish of CD&V. It was Devlies and the judiciary who were behind this case. Yes, it was the judiciary, but it was in particular Devlies and Bart Vandenberghe who were pushing this case and they always pushed this case openly and publicly. It was a reality both for them and us, we had a concrete plan for banking secrecy. Our aim with banking secrecy was to lift it, but in a certain context. Because everyone wanted to lift banking secrecy. Some wanted to lift the banking secrecy without lifting it and then there were those who wanted to lift it by eliminating it completely. On our side we had a position that was balanced. That was our primary concern, just as CD&V was primarily concerned about the plea bargain.”430

429 430

Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 23. Interview of Mr Emmanuel Degrève, 10 May 2017, CRIV 54 K030, p. 11.

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486. At his interview Mr Yves Leterme denied the statement that the De Morgen daily newspaper had attributed to him in an article on 22 November 2016, on how Mr Reynders was approaching the plea bargain issue, i.e.: “this was a very important political issue. He took a very active interest in this matter and has taken this law very seriously. It was one of his pet projects. There was nothing unusual about it. He was also Minister of Finance.” (translation) Mr Yves Leterme said: “The reason I responded spontaneously that my colleague Mr Reynders had taken a firm interest in it, was primarily because it was crucial to prevent our country from appearing on the OECD grey list.” (translation)431 To the question of what he meant by “the financial plea bargain law was a very important political case for Reynders, in which he took a very active interest”, Mr Leterme replied: “This concerned the banking secrecy as a whole and the financial plea bargain law, and in the last phase it was logical that when it came to making a decision at the second reading, just as other ministers were deeply concerned about the other articles of the miscellaneous provisions law, he was very interested in what would be decided at the Council of Ministers in this area. We really shouldn’t read anything else into it. If you were to ask me other questions about my colleague Mr Reynders’ involvement – which you are not, of course – I would have to say that at no time did I feel that there was anything other than the perfectly normal concern of a department head, the head of a political field, to ensure that the measures that had been proposed and which related to his field should finally be approved as part of a miscellaneous provisions law, for example.” (translation) At his interview Mr Didier Reynders read the SMS sent to him by Mr Yves Leterme on the day of this article was published: “Hello Didier, Yesterday I was at the ULB and was asked about the Chodiev case by RTL. There was also a journalist from De Morgen on this case. I see that this morning, De Morgen is trying to interpret my answers as to the processing of the draft law at the Council of Ministers. I am of the opinion that what they are insinuating about you is unjustified. It is simply a journalistic method to try and liven up the subject (...)”.

431

Interview of Mr Yves Leterme, 12 July 2017, CRIV 54 K053, p. 3.

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Mr Reynders' answer was: “Hello Yves, Knowing De Morgen as I do, and in view of our relationship, I didn't doubt it. Thank you for your message, please let me know if you are asked any questions (...)432. 487. Mr Didier Reynders stated at his interview that he was not aware of any of the individual cases that may have been being processed at the time433, that he was not aware at the time of the role played by Mr Armand De Decker in the judicial case involving Mr Patokh Chodiev and his partners434 and that he only learned about it from the press. He also indicated that he had not had any contacts with the diamond trade in connection with this case435. 488. The notification was approved by the Council of Ministers on 3 February 2011 (see observation no. 504 below). 9.4 Political linking of banking secrecy and plea bargains 489. Some witnesses testified at their interviews that the political linkage of the issues of easing banking secrecy and extending the plea bargain, as documented in the notification of 3 February 2011, dated back a long time (Ms Hildegard Penne, adviser to Mr Stefaan De Clerck, Mr Didier Reynders and his adviser Mr Rudy Volders, and Mr Bernard Clerfayt and his adviser Mr Emmanuel Degrève - see observations nos. 490, 491, 493, 494, 495, 496 and 502) while others say that this linkage occurred at the IKW on 31 January 2011 (Mr Yves Leterme and his advisor Mr Chris Delaere, Mr Carl Devlies and his advisor Mr Bart Vandenberghe, - observations nos. 473, 499, 500 and 501). 490. Ms Hildegard Penne, advisor to the Minister of Justice Mr Stefaan De Clerck, said that the two cases were linked from 2009 onward. In a debriefing given to her Minister on 29 January 2010 on the development of the preliminary draft law on the extended plea bargain, Ms Hildegard Penne wrote that the proposals had been linked as a result of the 2009 budget conclave: “The project was also discussed in relation to the preparation of the budget, without being retained either (linkage by the PS to banking secrecy).

Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, pp. 20 and 21. Ibid., p. 6. 434 Ibid., p. 2. 435 Ibid., p. 15. 432 433

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The Devlies office never submitted the case to the Council of Ministers, preferring to conduct bilateral discussions with the PS (Onkelinx office) to outline the project and to convince them to dissociate it from banking secrecy.” (translation)436 Ms Hildegard Penne told the enquiry committee that she was not personally present at the budget conclave, her debriefing was therefore based on the information she had been able to collect. 491. The Minister, Secretary of State and Heads of Cabinet of the auditioned MR explained to the Committee that the plea bargain is a matter related to the removal of banking secrecy historically, on issues of political balance, pragmatically and budget 437. As far as they are concerned these cases have been linked for a long time438. Mr. Didier Reynders and Mr. Rudy Volders considered that when, at the IWG on 1 July 2009, the PS refused to move forward on the plea bargain by linking this case with other measures relating to major tax fraud cases, they became linked. Like Mr Rudy Volders 439, Mr Didier Reynders explained at his interview that: "(...) during a meeting on 1 July 2009, in the absence of my political party, apparently due to a communication problem, everyone agreed to move forward on the plea bargain, with the exception of the socialist party, which called for this dossier to be integrated into a broader vision of tax fraud - it was therefore already linking it to a broader view on tax fraud - and, above all, whether it should be handled by Parliament. Personally, I always felt that one way or another these cases were running in parallel.” 492. The minutes of this IWG meeting on 1 July 2009 do not indicate that the PS would have asked to link the extended plea bargain to the lifting of banking secrecy (see observation no. 491 above). According to Ms Hildegard Penne and Mr Bart Vandenberghe, who were both present at the July 2009 IWG meeting, the PS did not link the extended plea bargain dossier to the dossier on the lifting of banking secrecy at that meeting.440 (translation)441

Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 7. Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, p. 20; Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, p. 3. 2Interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, p. 7 and 12 June 2017, CRIV 54 K052, pp. 9Interview of Mr Volders, 10 May 2017, CRIV 54 K029, p. 22: 6 and 7. 438 Interview of Mr Servais Verherstraeten, 14 May 2017, CRIV 54 K055, p. 14-15; interview of Mr Jan Jambon, 12 May 2007, CRIV 54 K052, p. 5; interview of Mr David Rombouts, 10 May 2017, CRIV 54 K029, p. 11. 6 and 7. 439 Interview of Mr Didier Reynders, 14 July CRIV 54 K055, p. 6; interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, p. 7. 440 Interview of Mr Bart Vandenberghe, 10 May 2017, CRIV 54 K030, p.9. 441 Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54K015, p.7. 436 437

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493. At his interview, Mr Bernard Clerfayt explained how he perceived the political linkage of the two dossiers: “I remember that in general, the “plea bargain, banking secrecy, and Una via issues were cases that we, i.e., MR in the broadest sense, wanted to move forward concurrently. Bearing in mind that the “banking secrecy” dossier was primarily a request from the socialist partners, and to a lesser extent cdH, and that it was mostly them who were blocking the “plea bargain” component. You know how a government works. (...). So you know that in general, when partners have different priorities, they agree to share priorities. So the wish to link the cases was a way of advancing the priorities of some at the same time as the priorities of others”. And moreover: “As far as I am concerned there was a link. I have always known this”. 442 Mr Emmanuel Degrève refers to a series of cases, mentioning that: “the consensus has always been that banking secrecy is linked to the ultimate success of the plea bargain. This is nothing new.”443” 494. Mr Bernard Clerfayt444 also explained - as did Ms Carina Van Cauter445 - that from a practical point of view it made sense to work simultaneously on the relaxing of banking secrecy, the one-off voluntary declaration and the plea bargain. He justified the link between the relaxing of banking secrecy whereby we obtain more information and more fraud tip-offs, the one-off voluntary declaration that allows taxpayer to put their affairs in order voluntarily “and the plea bargain” to fast track the prosecution of cases that may arise.

Interview of Mr Bernard Clerfayt, 12 July 2017, CRIV 54 K052, p. 4 and 5. Interview of Mr Emmanuel Degrève, 10 May 2017, CRIV 54 K029, p. 8. 444 Interview of Mr Bernard Clerfayt, 12 July 2017, CRIV 54 K052, p. 5. 445 Interview of Ms Carina Van Cauter, CRIV 54 K032, p. 5. 442 443

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Moreover, Mr Bernard Clerfayt added that Belgium was dropping cases such as the KB Lux dossier, in which, “firstly because of the numerous proceedings, we would seek to clarify things by setting the Una via procedure in one of the two ways, and propose solutions that would result in a good deal rather than a bad trial.” 495. Mr Bernard Clerfayt also said446 that as far as he recalled, at each budget meeting, both the lifting of banking secrecy and the plea bargain were on the list of cases and on the table on purely budgetary grounds. 496. At her interview Ms Gwendolyn Rutten said that447: “In terms of content, it had always made sense for us Liberals to deal with these two issues at the same time. This was nothing new. It goes back much further in time, but, in terms of both content and in political and budgetary terms, it seemed reasonable to examine these cases together.” (translation) 497. At her interview Ms Joëlle Milquet explained that “I never detected anything irregular in the political discussion process, which we regarded as straightforward, nor did we perceive undue pressure from any of my fellow ministers. In fact for me it concerned two long-standing political demands, linked as is often the case in with the aim of achieving a straightforward compromise, and finalized in a political agreement that seemed to us to be entirely logical and balanced”448. She added: “There was no surprise at the systemic link between the two issues and the problem of combating tax and social security fraud, because we were also looking at two more sensitive proposals, one for the government’s “left” and the other more for the “right”, going beyond the return that a Budget Minister may seek, moreover, which we still refer to from time to time in the context of our budget meetings, as is still the case today.”

Interview of Mr Bernard Clerfayt, 12 July 2017, CRIV 54 K052, pp. 3 and 9. Interview of Ms Gwendolyn Rutten, 17 May 2017, CRIV 54 K033. 448 Interview of Ms Joëlle Milquet, 10 July 2017, CRIV 54 K051, p. 4. 446 447

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498. Ms Laurette Onkelinx told the enquiry committee: “The proposal to enshrine in law the possibility of a plea bargain has been around for a long time. As far as I remember, in the various budget years, when both sides were tabling the most original ideas for balancing the budget, this proposal was tabled by the Liberals.”449 499. According to Mr Chris Delaere, the “plea bargain” and “banking secrecy” cases were first mentioned together at the October 2009 budget conclave, but at that point there was no question of linking them. According to him, there is no explicit indication that these two cases were politically linked at that time450. He explained this as follows: “I said that they had actually been examined together, but I also said that it cannot be inferred that they have actually been linked politically. By “actually been linked politically” I mean that one party declares that one is inseparable from the other. At that point, to my knowledge there was no clear indication of this in the discussions and in the texts in our possession on this subject. In so doing, I did not say that it was only in the minds of certain parties. I know nothing about that. The two cases were examined together but to the best of my knowledge were not in fact politically linked.451” (translation) 500. Mr Devlies confirmed this view in almost the same terms: “It was at that point, in October 2009, that the plea bargain and the lifting of banking secrecy were first mentioned in the same breath. At that time, however, no political link was established between the two files.” (translation) According to Mr Carl Devlies, these cases were not linked until the end of January 2011: “At the end of January, MR hinted that it wanted to examine a restriction on fiscal banking secrecy, provided that it was linked to an extension of the plea bargain.”452 (translation) 501. As his tax advisor also said (see observation no. 473 above), former Prime Minister Yves Leterme also said that MR linked the two cases at the IWG on 31 January 2011: “it was at the end of January, in preparation for the second reading of what was draft legislation at the time, that there was an explicit request to link the two cases after a few conversations with the MR representative or the office of the MR deputy leader.”453

449

Interview of Ms Laurette Onkelinx, 10 July 2017, CRIV 54 K051, p. 1.

450 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 4. 451 Ibid., 21.

452 Interview of Mr Carl Devlies, 12 July 2017, CRIV 54 K052, p. 5.

453 Interview of Mr Yves Leterme, 12 July 2017, CRIV 54 K053, p. 7.

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502. With regard to the linkage of the plea bargain to the lifting of banking secrecy in the miscellaneous provisions law of 2011, Mr Reynders454 said that like all of his political party he had always been in favour of the plea bargain, ever since the request of the Panel of Prosecutors General, which resulted in the general policy memo by the Minister of Justice, Mr Vandeurzen, in November 2008. He said his colleagues knew that MR was ready to move forward on this issue. In 2011, following internal and external pressures (see points 8 and 9.2 above), MR had to accept the lifting of banking secrecy. Mr Olivier Henin explains: “I totally accept that for MR the momentum had changed in terms of lifting banking secrecy. There was no change at all as regards the plea bargain. The momentum in terms of lifting banking secrecy had probably changed for others as well, and I imagine that they would not have lifted this impediment otherwise”455.

454 Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, pp. 3 and 5. 455 Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, p. 13.

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According to MR, regardless of whether these cases had been linked for a long time, putting the plea bargain issue back on the table made it possible to “not come out empty handed”456 from the discussion on the lifting of banking secrecy and to keep control of its implementation457 by placing a bargaining chip before the various parties around the table, while there was a risk of alternative majorities458 given that government was in routine business. With regard to the PS, Mr Rudy Volders459 noted that as we have to move forward on banking secrecy, politically it was interesting for MR to come back with the plea bargain case, to which the PS was not a party.

456 Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, in particular pp. 30 and 32. As for the choice of accepting the plea bargain as

linked to the lifting of banking secrecy, Ms Heuskin explained: “We have an internal meeting with the people you mentioned. We are talking to the MR group about the impasse we are facing with the three "banking secrecy" proposals; we are feeling the pressure of an alternative majority on these three proposals; we are wondering what we can contribute to the debate on banking secrecy. The Clerfayt office thus contributed something and, at some point, we thought that we would perhaps be able to put forward one of the 108 recommendations, one which we are most concerned about. I remember that during this period we were very keen on Una via but it was not very far advanced, whereas for the voluntary plea bargain there was already the Devlies project, which had already been discussed in 2009 and which was in place. I believe it is a discussion that we had at some point; the others want that and we are going to try to get something in return. What could we get in return? Una via may have been more advanced, perhaps it could have been Una via, and we would not be where we are now. (interview of Ms Sophie Heuskin, 22 May 2017, CRIV 54 K034, p. 19). 457 Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, pp. 6 and 7; Interview of Mr Bernard Clerfayt, 12 July 2017, CRIV 54 K052, p. 6; Interview of Mr Olivier Henin, session of 10 May 2017, CRIV 54 K029, p. 4.; Interview of Mr Emmanuel Degrève, 10 May 2017, CRIV 54 K030, pp. 7, 8, 11, 13 and 14. 458 Interview of Mr Didier Leemans, 5 May 2017, CRIV 54 K028, p. 2. 459 Interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, pp. 16 and 26; see also Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, pp. 1, 2 and 16.

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In addition, MR460 did not want the PS to emerge as the sole winner from this deal. With regard to CD&V and Open Vld, the plea bargain was a bargaining chip as regards these two parties, which had a draft law on the matter and therefore wanted the case to succeed (see observation no. 506 below). Mr Bernard Clerfayt recalled that “(...) as part of the political game we had to offer CD&V something satisfactory in returning for toeing the majority line, especially as the Prime Minister was theirs. Lastly, they were a partner we could not do without, a key partner461”. Mr Emmanuel Degrève likewise added: It was a balancing act, especially for us where we had to convince the PS to accept our law subject to conditions, we needed the backing of CD&V as well. We thus knew that by linking the cases we would have solid backing from within CD&V.462”. Mr Emmanuel Degrève concluded at his interview that “what carried the agreement on banking secrecy was probably the fairly clear political will of CD&V primarily, but also Open Vld, to obtain an agreement on the plea bargain.”463. 503. The MR Minister, State Secretary and office head finally stated that this “linkage” should be considered from a budgetary perspective464. On 10 January 2011, the King asked the outgoing Prime Minister to prepare the budget, and on 2 February 2010 to table it (see observation no. 409 above). However, the FI had already issued opinions on this measure (see observations nos. 385 and 386 above). Mr Olivier Henin said that “the plea bargain appeared to be a simple way to generate substantial income, in this instance €50 million, which was moreover “painless”, and which avoided their having to adopt a number of more restrictive tax regulations for taxpayers.”

Interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, p. 26 “In the international context, we had no option other than to lift banking secrecy. We, and certainly not the Minister of Finance, could not appear on the grey list. However, the PS saw a victory in this and wanted to move forward. However, we also know what is bothering the PS. There are measures that benefit everyone. We both have to live. If you hurt us, we'll hurt you too. What should be done in this case? We're trying to do as little harm as possible. This is how the deal came about. But this can also be seen as political reasoning, no?”; see also interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, pp. 1 and 2, 16. 461 Interview of Mr Bernard Clerfayt, 12 July 2017, CRIV 54 K052, p. 10. 462 Interview of Mr Emmanuel Degrève, 10 May 2017, CRIV 54 K030, p. 7. 463 Ibid., p. 2. 464 Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, pages 6 and 8; Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, pp. 4 and 5; Interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, p. 10 460

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And to add that “for MR, tax revenue from plea bargains was politically much easier to swallow than tax revenue from company cars or notional interest, or on any other measure of this type”465. At his interview Mr Didier Reynders defended this view by saying that when he was Minister of Finance, he “always preferred bringing in money from abroad, or money from fraud generated by a deal, rather than increasing the taxes paid by citizens”466. 9.5 Notification of the Council of Ministers of 3 February 2011 and consultation between political groups with a view to tabling an amendment (3 February 2011 -2 March 2011) 504. The Council of Ministers of 3 February 2011 approved a notification whereby the majority groups in Parliament were given the task of tabling amendments to the miscellaneous provisions law relaxing banking secrecy and introducing the extended plea bargain: “When the preliminary draft is discussed in Parliament, the government will ask the competent committee of the House to find a joint, definitive solution to the issue of fiscal banking secrecy and the extension of a plea bargain system as part of fraud prevention. In this context, the Government will ask the competent committee to include the provisions resulting from this solution as an amendment in this preliminary draft.”467. The Prime Minister, as well as the following Deputy Prime Ministers, Ministers and Secretaries of State were present at the Council of Ministers: — for CD&V: Ms Inge Vervotte, Mr Steven Vanackere, Mr Stefaan De Clerck, Mr Pieter De Crem, Mr Etienne Schouppe, Mr Carl Devlies;

Interview of Mr Olivier Henin, 10 May 2017, CRIV 54 K029, page 9; see also the interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, p. 9. 466 Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, p. 5. 467 Notification, point 47, of the Council of Ministers of 3 February 2011. 465

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— for the MR: Mr Didier Reynders, Mr Charles Michel, Mr Olivier Chastel and Ms Sabine Laruelle; — for the PS: Mr Michel Daerden, Mr Paul Magnette and Mr Philippe Courard; — for Open Vld: Mr Guy Vanhengel and Mr Vincent Van Quickenborne; — for cdH: Mr Melchior Wathelet. With regard to the draft miscellaneous provisions laws and programme laws, the usual practice is to ensure that it is always the Prime Minister who adds them to the agenda468. Mr Stefaan De Clerck, the Minister of Justice, was not involved in the preparation of this notification and told the enquiry committee on this subject: “Since I had not taken any personal initiative in this case - as the case is not mine, I was not responsible for it - I did not know how it was progressing.” Mr Stefaan De Clerck then said: “I was not responsible for drafting this legislation. Politically, it had always been agreed that this matter was within the remit of Carl Devlies469, who was in overall charge of his political leadership with a view to reaching political agreements. We used to provide top quality legal work with the help of Ms Hildegard Penne.” Mr Carl Devlies, at the time State Secretary for fraud prevention, told the enquiry committee: “On the basis of the texts provided, a final draft was prepared by Ms Penne, adviser to the Minister of Justice, in collaboration with the Legislation Department of the Justice FPS and Mr Bart Van Humbeeck, an employee of my strategic unit. Ms Hildegard Penne was responsible for the editing the final draft. I was responsible for coordinating the whole project.” (translation) However, Mr Carl Devlies, at the time State Secretary for fraud prevention, said at his interview that this case “had always been the responsibility of the office of the Minister of Justice.”470 Mr Carl Devlies also told the enquiry committee that: “Each minister and each State Secretary remained competent for his own field.” (translation)

Interview of Mr Yves Leterme, 12 July 2017, CRIV 54 K053, p. 2. Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, pp. 2 and 31. 470 Interview of Mr Carl Devlies, 10 July 2017, CRIV 54 K052, p. 13. 468 469

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505. On 3 February 2011, on the day of the decision taken by the Council of Ministers, Mr Chris Delaere asked the CD&V group, in accordance with the decision of the Council of Ministers, to initiate an ad hoc majority consultation.471 506. On the same day, Mr Emmanuel Degrève, office head of State Secretary Bernard Clerfayt, called for bilateral and prior consultation with the Devlies office. The consultation was scheduled for 8 February 2011 at the Clerfayt office. The draft law472 by MR and Open Vld was presented at this consultation, covering the plea bargain, the one-off declaration and banking secrecy473. 507. On 9 February 2011, an initial consultation took place in Parliament. This was a consultation between the five parliamentary groups of the government’s parties in routine business (CD&V, Open Vld, cdH, MR and PS) (hereinafter the majority consultation) and members of ministers’ offices. This meeting was chaired by CD&V MP Mr Raf Terwingen, as a member of the Prime Minister's political group. During this discussion, each party focused on the texts on banking secrecy. Each party presented its ideas again, and above all the differences between the parties were listed. According to Mr Chris Delaere, the plea bargain was barely discussed, if at all. He said that the PS did not mention it either. A new majority consultation was set for 15 February 2011474. 508. After the 9 February 2011 meeting, the Liberals asked the CD&V group for a bilateral meeting475. Almost at the same time, the Socialists, both PS and sp.a, also requested a meeting with CD&V. During the trilateral consultation between CD&V, MR and Open Vld that took place on Monday, 14 February 2011, a series of issues relating to banking secrecy were addressed.

Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 6. Draft law amending the Belgian Criminal Investigation Code with regard to plea deals and the one-off declaration, and aiming to introduce a bank investigation procedure for direct taxes by inserting in the Belgian 1992 Income Tax Code articles 322/1 and 338b, tabled by Mr Philippe Gofffin (MR), Mr Damien Thiéry (MR), Ms Gwendolyn Rutten (Open Vld), Ms Carina Van Cauter (Open Vld), Ms Marie-Christine Marghem (MR), dated 8 February 2011, DOC 53 1185/001. 473 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 6. 474 Ibid., p. 6. 475 Ibid. 471 472

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According to Mr Chris Delaere, however, the plea bargain issue476 was not discussed. 509. A consultation on banking secrecy between CD&V, PS and sp.a took place at 11:00am on 15 February

477

2011.

510. On the same day at 12:30pm, a second majority consultation was also held between parliamentary groups and members of ministerial offices. This meeting was again chaired by CD&V member of parliament Mr Raf Terwingen, According to Mr Chris Delaere, only the question of banking secrecy was discussed on the basis of the text prepared by the CD&V. The conclusion reached by the CD&V on the basis of the various meetings478 was that there was still a divergence to be resolved between, on the one hand, the PS and, on the other hand, the liberals. According to Mr Jef Smits, it was agreed at this meeting that a new majority consultation on banking secrecy would be held on Tuesday, 1 March 2011 in the afternoon. On 16 February 2011, he invited his colleagues from the five groups to this consultation. Mr Delaere said that he was struck by the fact that the meeting invitation only mentioned a consultation on the issue of banking secrecy. It did not mention the plea bargain479. 511. On 17 February 2011, the PS asked CD&V to reopen the banking secrecy consultation with sp.a on 22 February 2011. During this meeting, the PS offered to seek an alternative majority with sp.a for banking secrecy. The Socialists were planning to speed up discussions at the Finance and Budget committee meeting the following day, with the aim of getting banking secrecy accepted480. During this consultation on 22 February 2011, the Socialists again presented a series of amendments to the CD&V text on banking secrecy. However, these amendments went much further and, according to Mr Chris Delaere, they would probably be unacceptable to the Liberals481. Sp.a could even be in favour of the full lifting of banking secrecy and was clearly reluctant as regards the plea deal482. 512. On 18 February 2011, Mr Chris Delaere was invited by the head of the Clerfayt office, Mr Emmanuel DegrĂ¨ve, to attend a consultation on 22 February 2011. This meeting was eventually held on 25 February 2011.

476 Ibid.

477 Interview of Mr Jef Smits, 17 May 2011, CRIV 54 K033, p. 4. 478 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028. 479 Ibid., p. 6. 480 Ibid. 481 Ibid. 482 Ibid.

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In particular, their proposal states that the CD&V proposal on banking secrecy still needs to be somewhat strengthened on two points483. They want to use an alternative majority, but with N-VA rather than the Socialists. Things even went so far as calculating whether an alternative majority could be reached. Mr Bernard Clerfayt and Mr Emmanuel Degrève explained to the committee that the purpose of the discussion at N-VA was to put pressure on the PS484. 513. On 25 February 2011, a further consultation was held between CD&V, PS and sp.a. The Socialists suggested forming an alternative majority with Ecolo-Groen! to obtain the lifting of internal banking secrecy and the central register of accounts. According to Mr Chris Delaere, some have also calculated that an alternative majority would be difficult to achieve. As far as the texts relating to banking secrecy are concerned, they are, in his view, substantially closer to the CD&V text. On 25 February 2011, the CD&V group invited Ms Meyrem Almaci, Ecolo-Groen! member of the Finance and Budget Committee, to attend a consultation on 1 March 2011485. This consultation did not take place486. 514. On 27 February 2011, Mr Chris Delaere487 sent an email to the staff of the RM, N-VA and Open Vld offices and political groups, specifically in response to an earlier email from Mr Emmanuel Degrève, summarizing the agreements reached at the 25 February 2011 meeting on the lifting of banking secrecy and the plea bargain. With regard to the plea bargain, Mr Chris Delaere wrote: “As was indicated at the meeting, we are backing the “Verherstraeten” proposal. This proposal was prepared by a technical working group composed of magistrates and civil servants in the framework of the Devlies Action Plan and was also approved by the Panel of Prosecutors General. As you know, this Panel has considerable influence on the key to the success of a judicial measure.” (translation) Mr Chris Delaere continued “the plea bargain requires amendments under the procedure of article 77 of the Constitution, which must be reviewed by the Justice committee. It is therefore impossible to include it in the banking secrecy proposal (which comes under the procedure of Article 78 of the Constitution). However, we can have these proposals examined simultaneously, discuss the banking secrecy proposal and at the same time organize the final votes in plenary meetings of the House and the Senate.” (translation)

483 Ibid., p. 7.

484 Interview of Mr Bernard Clerfayt, 12 July 2017, CRIV 54 K052, p. 7. Interview Mr Emmanuel Degrève, 10 May 2017, CRIV 54 K029, p. 18. 485 Interview of Mr Jef Smits, 17 May 2017, CRIV 54 K033, p. 5.

486 Interview of Ms Meyrem Almaci, 17 May 2017, CRIV 54 K033, p. 6.

487 Documents produced by Mr Chris Delaere and Mr Jean-François Smets.

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515. On 1 March 2011, a new majority consensus meeting was held between parliamentary groups and office members. This meeting was once again chaired by CD&V member of parliament Mr Raf Terwingen. The discussion focused mainly on banking secrecy. According to Mr Chris Delaere, the representatives of Open Vld want to ensure that we return to a situation that complicates the lifting of banking secrecy488. According to the political secretary of the CD&V group, Mr Jef Smits, the 1 March meeting was interrupted for some time, as he indicated “resumption” in his notes. After that, Mr Jef Smits said that Open Vld had declared that there would only be an agreement if there was an agreement on everything, that a meeting on the plea bargain should also be scheduled and that Open Vld wanted to base the discussion on the draft law tabled by MR - Open Vld489. At the end of this meeting on 1 March, Mr Chris Delaere suggested holding another meeting on banking secrecy, but this proposal was rejected by Open Vld and MR, who considered that the plea bargain should be discussed first, after which banking secrecy might be accepted more readily490. A new meeting was scheduled for the following day, 2 March 2011491. 516. On the morning of 2 March 2011 Mr Emmanuel Degrève sent an email to Mr Rudy Volders in which he outlined the progress of the last consultation meetings and the meeting of 28 February 2011 between Mr Didier Reynders and Mr Bernard Clerfayt. In particular, in this email he said: “(...) 5. Yesterday's meeting (on Tuesday) once again showed a “left-right” split within the majority, with a “determined” defence by Gwendolyn Rutten, who wanted, as an imperative link between the lifting of banking secrecy and the plea bargain, that the plea bargain be negotiated first, which will be the subject of our meeting this morning. 6. On Monday, Bernard Clerfayt met Didier Reynders and asked him whether an agreement was required. The minister's position was as follows: an agreement must not be reached at all costs on the plea bargain at the cost of a ‘heavy’ lifting of bank secrecy”. It is theoretically possible to postpone the negotiation as part of a broader set of issues later on (thinking in particular of family reunification, and perhaps since Tuesday on the women's quota) and perhaps within the budgetary framework (in which banking secrecy might find its true vocation). (...)” 492

488 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028.

489 Draft law amending the Belgian Criminal Investigation Code with regard to plea deals and the one-off declaration, and aiming to introduce a

bank investigation procedure for direct taxes by inserting in the Belgian 1992 Income Tax Code articles 322/1 and 338b, tabled by Mr Philippe Gofffin (MR), Mr Damien Thiéry (MR), Ms Gwendolyn Rutten (Open Vld), Ms Carina Van Cauter (Open Vld), Ms Marie-Christine Marghem (MR), dated 8 February 2011, DOC 1185/001; 490 Interview of Mr Jef Smits, 17 May 2017, CRIV 54 K033, p. 5. 491 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028. 492 Inventory of documents forwarded to the parliamentary enquiry committee by M. Jean-François Smets. Email sent on 2 March 2011 at 9.06am by Mr Emmanuel Degrève to Mr Rudy Volders, Mr Jean-Paul De Marie and Mr Jean-François Smets, with a copy to Ms Sophie Heuskin and Mr Lagasse, Mr Wunsch and Mr Henin.

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517. The majority consultation between parliamentary groups and members of ministerial offices on Wednesday, March 2, 2011 was chaired by Mr Servais Verherstraeten, who was present for the first time at these majority meetings because Mr Raf Terwingen, who had chaired the previous meetings, could not attend493. 518. At this meeting on 2 March 2011, the first issue was the plea bargain, as proposed by the Open Vld and the RM at the previous meeting.494 519. Also during this meeting of 2 March 2011, according to Mr Jef Smits, Mr Servais Verherstraeten asked whether a compromise was possible on the basis of Ms Carina Van Cauter’s draft plea bargain law, i.e. DOC 53 1185/001 of RM and Open Vld. Ms Gwendolyn Rutten reiterated that everything was related. In the end it was decided to work on the text of the draft plea bargain law of Mr Servais Verherstraeten, which is the text of the Panel of Prosecutors General495. Ms Carina Van Cauter496 indicated that she had attended this meeting on 2 March 2011 believing that the MR-Open Vld plea bargain text would be used as a basis for discussion but that CD&V insisted that it should be based on their own draft law, the one introduced by Mr Servais Verherstraeten and Mr Raf Terwinghen. Ms Carina Van Cauter explained: “Knowing that the Panel of Prosecutors General was apparently involved, and that a text has been drawn up by the office, who are we members of parliament to carry on promoting our own text?” (translation) In the end it was decided to work on the text of the CD&V draft law.

493 Interview of Mr Jef Smits, 17 May 2017, CRIV 54 K033, p. 5; interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028; interview of Mr Servais

Verherstraeten, 17 May 2017, CRIV 54 K033, p. 3. 494 Interview of Mr Jef Smits, 17 May 2017, CRIV 54 K033, p. 5. 495 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028. 496 Interview of Ms Carina Van Cauter, 17 May 2017, CRIV 54 K032, p. 6.

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520. Also at this meeting on 2 March 2011 and at the request of Open Vld, the following changes were made to this text: Proportionality was explicitly included in the text of the draft law: “However, the public prosecutor must set a sum that is proportional to the seriousness of the offence when drafting a plea bargain proposal. The objective cannot be to propose a symbolic sum in cases of serious fraud, for example.” Secondly, the payment of taxes and interest is explicitly added to it. Thirdly, it was added that the opinion of the investigating judge could be sought at any time if a judicial inquiry was under way497. 521. Also at this meeting on 2 March 2011, during the discussion on the plea bargain, the PS proposed a series of changes to the text and stated that it would provide concrete proposals for text. The plea bargain was agreed upon fairly quickly498. 522. Next, still at this meeting on 2 March 2011, MR submitted a proposal to wrap up the issue of banking secrecy. However, this proposal raised some issues for the PS and CD&V with regard to new requirements related to the procedure for lifting bank secrecy. Lastly, there were still some differences of opinion with RM. At that moment the meeting was briefly suspended. There was a bilateral consultation between Mr Chris Delaere and Mr Rudy Volders. This discussion took place outside the meeting and Mr Chris Delaere reported on the remarks made to Mr Rudy Volders in the following terms: “We are a hair’s breadth away from a compromise. If you do not drop the last points, we will have nothing, both the plea bargain and banking secrecy will be put on the back burner and nothing will be done.” After a moment of reflection, Mr Rudy Volders indicated that he would drop the points under discussion, and an agreement was reached499.

497 Ibid., p. 7.

498 Interview of Mr Jef Smits, 17 May 2017, CRIV 54 K033, p. 5. 499 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028.

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523. Still at this meeting on 2 March 2011, it was decided that the texts would be adapted by the office staff present at the consultation between the parties of the majority, in line with what was agreed during the consultation, and that the appropriate texts on the plea bargain and banking secrecy would be merged into one document. In the afternoon of 2 March 2011, Mr Chris Delaere forwarded to Mr Jef Smits the full text on banking secrecy and the plea bargain, which, as agreed, were in the form of an amendment to the draft miscellaneous provisions law (DOC 53 1208/007). A little later, Mr Chris Delaere sent the amendment to those who had been present at the majority consultation in the morning500. 524. On 2 March 2011 at 7.37pm, this amendment was submitted to the Finance Committee501. 10. Draft miscellaneous provisions law: Debate and vote on the "Extended Plea Bargain" Act in the House (February 23, 2011 - 17 March 2011) 525. After the June 2010 elections, the Conference of Presidents of 28 September 2010 decided to consider on a case-by-case basis whether draft laws could be tabled while parliament was in routine business. (see observation no. 5. Outgoing government and current affairs (April 2010 - December 2011) This was the case at the Conference of Presidents of 16 February 2011, when the government announced that it had tabled a draft miscellaneous provisions law (DOC 53 1208/001) which it required to be processed urgently, on the basis of article 80 of the Constitution. Pursuant to the rules of the House, this text was referred to the various relevant committees, namely Economy, Finance, Infrastructure, Interior and Social Affairs.502 526. The Prime Minister argued, to justify the urgent processing of this draft law even though parliament was in routine business, that the various provisions contained in it were intended to comply with European law and to transpose various directives, in relation to which Belgium was at risk of a penalty.

500 Interview of Mr Jef Smits, 17 May 2017, CRIV 54 K033, pp. 5-6. 501 Ibid., p. 6.

502 Interview of Ms Emma De Prins, 15 May 2017, CRIV 54 K031, p. 2.

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As a result, the Conference of Presidents agreed that this draft law could be tabled and debated while parliament was in routine business503. 527. Articles 26 to 64 and 69 to 75 of the draft miscellaneous provisions law (DOC 53-1208/001), which comprised 85 articles, were examined the Finance and Budget Committee of the House at its meetings on 23 February and 2 and 3 March 2011. 528. The meeting on 2 March was held from 2.11pm until 5.45pm, then from 7.37pm to 11.15pm504, with a break allowed for members to read amendments 15 to 18505 tabled by the members of the majority506. 529. The articles analysed by the Finance Committee507 dealt with amendments to taxation of individuals, of legal entities, electronic tax returns, the exchange of bank information at the request of foreign countries, payroll tax, VAT, registration fees, death duties and customs and excise duties. 530. At the meeting on 2 March, several amendments were tabled to Article 50 of the draft concerning the lifting of banking secrecy, by Mr Dirk Vandermaelen (sp.a) (amendments 7 to 14 and 21), Mr Servais Verheeten (CD&V), Ms Gwendolyn Rutten (Open Vld), Mr Guy Coëme (PS), Ms Carina Van Cauter (Open Vld), Mr Josy Arens (CDH), Mr Raf Terwingen (CD&V) and Mr Philippe Goffin (MR), all of whom belonged to the majority “in routine business” (amendments 15, 16 and 17), Ms Meyrem Almaci and Mr Georges Gilkinet (Ecolo-Groen) (amendments 19, 23, 25 and 26) and by Ms Veerle Wouters and Messrs Steven Vandeput, Jan Jambon and Peter De Decker (N-VA) (amendments 27 to 30). The aim of these amendments was to broaden in various ways the possibilities of a banking investigation relating to Belgian depositors and to set up a Central Contact Point for bank accounts. 531. The amendments tabled by sp.a and by Ecolo-Groen had been the subject of an earlier opinion by the Council of State, having been tabled in the form of draft laws, on 10 September and 6 September 2010, respectively508.

503 Ibid.

504 Sheet for the Chairman of the Secretariat of the Finance and Budget Committee. 505 See below

506 Interview of Ms Muriel Gerkens, 17 May 2017, CRIV 54 K033, p. 2. 507 For the Committee’s report see DOC 53-1208/012.

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532. The text of amendments nos. 15, 16 and 17, tabled in Dutch, was based on the draft law amending the 1992 Belgian Income Tax Code with a view to lifting banking secrecy as part of effective fraud prevention (DOC53 1189/001), tabled by Mr Raf Terwingen and Mr Servais Verherstraeten509. 533. At the same meeting on 2 March, Ms Carina Van Cauter (Open Vld) then presented amendment no. 18510 in Dutch, signed by the same members as amendments nos. 15, 16 and 17. The text of this amendment had not been the subject of a prior opinion of the Council of State. No request had been made, so no decision had been taken to submit it to the Council of State for an opinion. 534. The text of Amendment No 18 corresponds broadly to the text of the CD&V draft law DOC 53 1252511 (which had been referred by the plenary meeting to the Justice Committee), reviewed on 24 February 2011, and, according to the information obtained by the enquiry committee from the House’s departments, to a text sent to the House’s legislative department (and processed by it) on 8 February 2011 by the MR group represented by Messrs Philippe Goffin and Damien Thiéry, but which was never signed off by the interested parties and has therefore not been examined by the plenary meeting of the House. (see observation no. 506)

508 Draft law on the lifting of banking secrecy (DOC 53-0095/001), tabled by Mr Georges Gilkinet et al. on 6 September 2010, and draft law

amending certain provisions of the 1992 Belgian Income Tax Code on the lifting of banking secrecy (DOC 53-0130/001), tabled by Mr Dirk Van der Maelen et al. on 10 September 2010. 509 Report prepared on behalf of the Finance and Budget Committee on the miscellaneous provisions law no. 53-1208/12, pages 22-24. 510 DOC 53-1208/007. 511 Draft law amending the Belgian Criminal Investigation Code with regard to the ending of prosecution on payment of a sum of money (DOC 53 1252/001), signed by Servais Verherstraeten (CD&V), Sonja Becq (CD&V) and Raf Terwingen (CD&V).

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535. This amendment no. 18 was mainly intended to: — make it possible to reach an amicable deal in certain cases (for a contravention, offence or crime

punishable by imprisonment)512;

— make a plea bargain possible even after a case has been brought before an investigating judge513.

536. Several members of political groups who are not involved in the government on routine business (Mr Georges Gilkinet, Ms Meyrem Almaci and Mr Dirk Vandermaelen) challenged the content of the amendment and the linkage of the debates on the lifting of banking secrecy and the plea bargain, while members of the majority in routine business defended the text (inter alia Ms Carina Van Cauter, Mr Servais Verherstraten and Ms Christiane Vienne). Thus, for example: Mr Georges Gilkinet (Ecolo-Groen) said that the inclusion of new loopholes in the law would benefit fraudsters by providing them with an additional safety net, on top of the tax settlement option already provided for in the law, and would somehow be an incentive to commit fraud, as it goes unpunished. Ms Meyrem Almaci (Ecolo-Groen) denounced the trade-off that had taken place within the majority, and also said that the plea bargain would encourage the practice of making partial settlements using money hidden abroad by some taxpayers, as they offer an additional opportunity to ultimately escape any sanction. Ms Christiane Vienne (PS) refuted these arguments, saying that this was a proportionate and pragmatic response to fraud, in line with the recommendations of the major tax fraud enquiry committee. Ms Carina Van Cauter (Open Vld) highlighted the effectiveness of the measure and the fact that it would free up investigative capacity for other cases, believing that there was no need to interfere in discussions on tax settlements and the plea bargain. Mr Servais Verherstraeten (CD&V) argued that the text was the result of a compromise, rooted in the Judiciary’s consultations, was discussed by the major tax fraud enquiry committee and was the subject of a consultation with the Panel of Prosecutors General. Referring to the same work of the enquiry committee, Mr Dirk Van der Maelen (sp.a) considered that an amicable deal is acceptable in the administrative phase of a case but not in its judicial phase, to avoid processing on the client’s initiative and to ensure that the most important cases result in a court decision.514

512 “If the public prosecutor considers that a contravention, an offence or crime punishable by imprisonment by the application of articles 1

and 2 of the mitigating circumstances law of 4 October 1867 require only a fine or a fine with confiscation, he may invite the suspect to pay a certain sum of money to the Finance PFS.” 513 “The option granted to the public prosecutor in paragraph 1may also be exercised if an investigating judge has already been charged with investigating the cases or if a court is already handling the case, if the suspect or the accused demonstrates his or her willingness to repair the harm caused to others, provided that no final judgement or ruling has been handed down.” 514 DOC 53 1208/012, p. 46, statement by M. Dirk Van der Maelen.

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537. Some members of the committee considered that the Justice committee was competent to decide on the aspects of the amendments relating to the plea bargain and therefore requested that the provisions relating to the amicable deal be dealt with by the Justice committee515 or, at the very least, be the subject of an opinion issued by it. 538. The Committee decided by 10 votes to 7 not to request an opinion from the Justice committee on this amendment no. 18 by Mr Servais Verherstraeten (CD&V), Ms Gwendolyn Rutten (Open Vld), Mr Guy CoĂŤme (PS), Ms Carina Van Cauter (Open Vld), Mr Josy Arens (CDH), Mr Raf Terwingen (CD&V) and Mr Philippe Goffin (MR). 539. Following a lengthy debate, the articles of the draft miscellaneous provisions law (DOC 53 1208) relating to the Finance Committee, supplemented in particular by amendments nos. 15 to 18, were adopted at the meeting on 2 March 2011. 540. Amendments nos. 15, 16 and 17 concerning the lifting of bank secrecy were adopted by 10 votes to 6 with 1 abstention, 12 votes to 4 with 1 abstention and 11 votes to 5 with 1 abstention respectively. Amendment no. 18 to insert article 75/1 on the plea bargain was adopted by 10 votes to 3 with 4 abstentions.

515 DOC 53 1208/012, p. 44, statement by Ms Meyrem Almaci.

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541. In accordance with 83 and 94 of the House’s regulations in force at the time, the articles adopted after the first reading had a second reading at the 3 March 2011 meeting following the plenary meeting on the same day, from 6.50pm to 7.39pm. All the provisions referred to the committee, as amended, were adopted by 10 votes to 6 with 1 abstention. 542. This draft miscellaneous provisions law (DOC 53 1208/009), was then debated in plenary session on Wednesday 16 March and approved by the House on 17 March 2011.516 11. 2011 Budgetary control (16 March 2011) 543. After the Council of Ministers of 3 February 2011, the plea bargain was again raised within the government during the 2011 budgetary control517. At the IWG meeting on March 16, 2011, an estimate of the potential return on the lifting of bank secrecy and the introduction of the plea bargain was requested. According to Mr Chris Delaere, specifically for the plea bargain, the Minister of Finance's office indicated that certain major cases had been referred to a criminal judge518. In 2010, 110 million euros had already been recovered in cases concerning cash companies. The budget conclave eventually estimated the additional revenue to be generated by plea bargains at EUR 50 million per year. This amount is included in the budget. The decision of the Council of Ministers was as follows: “Plea bargain: subject to the agreement of the authority concerned and subject to the payment of the taxes and/or social contributions due, including interest, this measure makes it possible to agree a deal in the context of an investigation with the aim of ending public prosecution”. (translation) Revenue of EUR 50 million has been entered in the budget table.

516 In the vote on the overall draft miscellaneous provisions law, members of the cdH, CD&V, MR, Open Vld and PS political groups voted in

favour of the draft law; the members of N-VA and VB voted against, and the members of Ecolo Groen! abstained. See Appendix to nominative vote 020, Annals of the plenary meeting of 17 March 2011, CRIV 53 PLEN 023, 136). 517 Interview of Mr Chris Delaere, 5 May 2017, CRIV 54 K028, p. 8. 518 Ibid.

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12. Draft miscellaneous provisions law: Debate and vote on the "Extended Plea Bargain" Act in the Senate (16 March 2011 - 31 March 2011) 12.1. The legislative procedure followed in the Senate 544. Prior to the sixth reform of the state, which included a major reform of the Senate that came into force in 2014, article 78 of the Constitution was drafted as follows: “Art. 78. In matters other than those referred to in sections 74 and 77, a draft law passed by the House of Representatives is forwarded to the Senate. At the request of at least fifteen of its members, the Senate debates the draft law. This request is made within 15 days of receipt of the draft law. The Senate may, within a period not exceeding sixty days: — decide that there is no need to amend the draft law; — approve the draft law after amending it.

If the Senate has not ruled within the time limit or has informed the House of Representatives that it has decided not to amend the draft law, the House of Representatives sends it to the King. If the draft has been amended, the Senate sends it to the House of Representatives, who shall take a final decision, either by adopting or rejecting, in whole or in part, the amendments adopted by the Senate.” Article 80 of the Constitution stipulated that: “If when a draft law referred to in section 78 is tabled the federal government requests an urgent response, the parliamentary consultation committee referred to in article 82 shall determine the time limit within which the Senate must make a decision. In the absence of an agreement within the committee, the time limit for referring the matter to the Senate shall be reduced to seven days and the time limit for its examination referred to in Article 78(3) shall be reduced to thirty days.”

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545. The usual fifteen-day discussion period and the sixty-day examination period may be shortened. On 24 February 2011, the parliamentary consultation committee came out in favour of the government's request for urgent processing of the miscellaneous provisions law. The Senate therefore had five days to refer the project and twenty days to examine it519. 546. On 15 and 16 March 2011 the draft miscellaneous provisions law was still being discussed in the House. Nevertheless, various Senate committees were beginning their review. This possibility is set out in Rule 27.1 of the Senate Regulations, which stipulates that “If the House of Representatives has before it a proposal or a draft law, the competent committee may, before the vote by the House, appoint its rapporteur and begin examining the text without a vote”. This is standard practice for miscellaneous provisions laws. “If it is an urgent matter, it is the only reasonable way to hold a debate on the merits of the case. This means that an early examination is initiated”520. 547. On 17 March 2011 the House of Representatives passed the miscellaneous provisions law. It was forwarded to the Senate on Friday, 18 March 2011 and was referred to on the same day by members of Open Vld, CD&V, PS and cdH, associated political groups in the government in routine business. 548. In practice, the application for discussion is a collective political act rather than an individual parliamentary act. The secretariats of political groups that wish to discuss a text deposit legislation forms signed by the group's members of parliament with the Senate.521 Officially, all political groups that have agreed to discuss a proposal do not necessarily request it. As soon as a quorum of fifteen signatures is reached, the discussion is confirmed, and the text is referred to the Senate.522 549. Although they have no intention of amending a draft law, majority political groups could still file a discussion request to accelerate the legislative process or to guard against delaying tactics. Indeed, referring a proposal on the first useful day helps to address the potential risk that the text will ultimately be discussed by the opposition on the last day of the referral period, which would automatically delay the adoption of the proposal by a few days.

519 Interview of Mr Gert Van der Biesen, 24 May 2017, CRIV 54 K035, p. 1. 520 Ibid.

521 Inventory of documents of Senate forwarded to the parliamentary enquiry committee. 522 Interview of Ms Virginie Defrang-Firket, 24 May 2017, CRIV 54 K035, p. 2.

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12.2. Review by the Justice Committee523 550. The Clerk of the Senate briefed the enquiry committee as to why, unlike what happened in the House, the article of the law concerning the plea bargain was handled by the Justice committee: “The draft law was split between the various Senate committees. Certain parts were handled by the Social Affairs Committee, others by the Finance Committee, others by the Interior committee and only one article, Article 84, was assigned to the Justice committee. In the Senate, this decision was made de facto by officials. The director of the plenary meeting decided on this allocation between the various committees, in consultation with the Clerk and the Committee Secretaries. This decision was of course taken under the supervision of the President, but as it does not usually lead to a debate, it is in practice purely a formality. In this instance, the decision to assign article 84 to the Justice committee did not result in a challenge in the Senate. This article made an amendment to the Belgian Criminal Investigation Code, a matter that, in the Senate, fell within the remit of the Justice committee. The scope of action of the Justice Committee has in fact always been interpreted broadly by the Senate. Assigning this article to another committee would undoubtedly have led to a challenge and perhaps a referral to the Justice committee in plenary, as well as being referred to the Justice committee.” (translation)524 551. The first meeting of the Justice Committee was held on 16 March 2011 from 10.15am to 11.45am.525 The minister of Justice Stefaan De Clerck is present. He was accompanied by Ms Hildegard Penne, an employee of the minister's office.526

523 Justice Committee Report, made by Mr Francis Delpérée and Peter Van Rompuy, Doc. Senate, N° 5-869/4. 524 Interview of Mr Gert Van der Biesen, 24 May 2017, CRIV 54 K035, p. 2.

525 Present at the meeting were Ms Christine Defraigne (MR), Chair of the Committee, Ms Inge Faes, Ms Helga Stevens and Ms Lieve Maes and

Mr Karl Vanlouwe (N-VA), Mr Philippe Mahoux (PS), Ms Sabine de Béthune and Mr Eric Van Rompuy (CD&V), Mr Guy Swennen (sp.a), Ms Martine Taelman (Open Vld), for Vlaams Belang, Mr Bart Laeremans (Vlaams Belang), Ms Zakia Khattabi (Ecolo) and Mr Francis Delperée (cdH). The following political group staff were present: Mr Grégory Matgen (MR), Mr Thomas Van Ongeval (CD&V) and Mr Kris Gysels (Open Vld). 526 Minutes of the meeting of the Justice Committee given to the enquiry committee by the Senate.

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552. From that day on, Minister Stefaan De Clerck and his cabinet staff, Ms Hildegard Penne and Mr Jo Baret, said they had joined forces again there: “With regard to subsequent legislative work, I can only repeat that my involvement only started when we were examining the miscellaneous provisions law at the Justice committee.”(translation)527 However, another member of the Justice office said that they were also already involved in the majority consultation that preceded the tabling of the amendments in the House: “in mid-February or perhaps at the end of February (...) we were invited to attend some meetings during which several things would be checked. We were told that these meetings would concern banking secrecy, but that the plea bargain may also be discussed.” (translation)528 553. It is up to the Minister of Justice to introduce the draft law amending the Belgian Criminal Investigation Code in order to extend the scope of plea bargains. The minister emphasised that the provision under review was a major step forward. He set out the arguments of the sponsors of the amendment tabled in the House of Representatives. He explained that the practice of the plea bargain was characterized by a constant extension of its scope and described the proposed new extension. 554. According to the Minister, offences that are currently excluded such as forgery, even though, like the plea bargain, they are often taken into consideration for an alternative way of resolving of disputes, are covered by the proposal and the procedure under review will be ideal for tax offences. The measure “will provide a solution to the current situation, which is particularly problematic due to the unreasonable delays in handling in financial and tax cases”. The purpose of the proposal under review is to allow the correctional courts to devote more energy to hearing of disputed cases, to contribute to quick and effective collection of monies and to provide an additional opportunity for the public prosecutor to speak about the development of a criminal policy. It is also part of the development of a justice system focused on consensual, restorative justice”529. He added that the proposal may also earn the Treasury a lot of money. Very large amounts may be collected in this way.

527 Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 3.

528 Interview of Mr Tom Van Wynsberghe, 21 June 2017, CRIV 54 K044, p. 5 529 Committee Report, Senate, N° 5-869/4, p. 3.

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555. According to Minister Stefaan De Clerck, the call for an extension of the scope of the plea bargain is nothing new. He explained: “For example, it was mentioned before in the document entitled “Justice Dialogues” by Fred Erdman and Georges de Leval, in the proposal of the Panel of Prosecutors General on the outlines of a strategic plan for the modernisation of the public prosecutor's office and in the report of the parliamentary enquiry committee on major tax fraud cases. Extending the scope of the plea bargain was also one of the action points included in the Panel's tax and social security fraud prevention proposals submitted by State Secretary Carl Devlies and approved by the Ministerial tax and social security fraud prevention committee. There were therefore recommendations in favour of extending the use of the plea bargain, and draft laws were also tabled to this end. The text under review was prepared by a working group of the tax and social security fraud prevention panel, implementing the recommendations of the parliamentary committee on tax fraud and the subsequent action plan, in consultation with the “Criminal Procedure” expert network of the Panel of public prosecutors530. Minister Stefaan De Clerck added two arguments, which were not put forward by the sponsors of the amendment tabled in the House of Representatives: “Various bodies, some of which are outside the judicial world, have been involved, and professors have been consulted. The text was also submitted to the Panel of prosecutors general, which approved it”531. 556. Lastly, the Minister recalled that the provision under review had been linked to the text relating to the lifting of banking secrecy. The associated political parties in the government in routine business tabled both provisions in the form of an amendment to the draft miscellaneous provisions law.

530 Ibid., p. 4. 531 Ibid., p. 4.

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557. The discussion focused first of all on the conditions for the review of the text. Mr Bart Laeremans protested that Parliament had been forced to rush through the result of a political trade-off. Several members were surprised that such an important amendment to the Belgian Criminal Investigation Code had been discussed at the Finance and Budget Committee in the House of Representatives. Ms Zakia Khattabi noted that the amendment of the plea bargain arrangement was part of an overall compromise on the lifting of banking secrecy. However, she regretted that the political price to be paid in order to obtain it had been so high. 558. Several members then expressed concerns about the scope of the extension of the plea bargain. They pointed to a change in its scope in the nature of the offences, and to the point in time when it may apply. This was the case with Mr Philippe Mahoux and Ms Christine Defraigne. Ms Martine Taelman saw the great benefits of the proposed system above all, particularly in the area of tax and social security fraud. 559. Mr Francis Delperée wondered whether the proposed change was a matter of routine business and questioned the government's authority to approve such a change in criminal law in the current political context, without an emergency or the need to legislate on the matter. Minister Stefaan De Clerck argued that the text under consideration was a parliamentary initiative by way of amendment in the House. Mr Francis Delperée was of the opinion that the extension of the plea bargain system also raised the issue of the purpose and method of “miscellaneous provisions” laws: “Until now, Parliament has always agreed to discuss and vote on these draft laws, which cover various areas of law, within the framework of the action of the political majority. However, in this case, the reform was inserted by an amendment tabled by a member of parliament and does not deal with to the main subject.”532 Mr Francis Delperée was therefore concerned about the validity of the parliamentary right to take the initiative in such cases. Mr Philippe Mahoux believed that the result was the same, regardless of whether the parliamentary initiative was tacked on to a draft law or was exercised separately. Mr Francis Delperée did not share this view because the vote may be different, depending on whether the proposed reform is contained in a “miscellaneous provisions” law or in a stand-alone draft law.

532 Ibid.,

p. 4.

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12.3. Interview of 22 March 2011 560. The decision was not included in the minutes of the meeting of the Justice Committee of 16 March 2011, but according to the Senate report, “following this first exchange of views, the committee decided to go ahead with interviewing representatives of the academic world”533. They were Professor Adrien Masset of the University of Liege and Professors Axel Haelterman and Raf Verstraeten of KU Leuven. 561. It was evident from the testimonies taken by the enquiry committee that the Francophone expert, Mr Adrien Masset, had been put forward by one or more members of parliament of the same linguistic group534. It is not disputed that the Dutch-speaking experts, Messrs Axel Haelterman and Raf Verstraeten, had been put forward by Dutch-speakers, as is often the case. The enquiry committee interviewed several former senators to identify which senator or political group had suggested interviewing Messrs Axel Haelterman and Raf Verstraeten. The enquiry committee also asked the Senate’s departments the same question. These steps did not help to determine more accurately who made the suggestion. 562. According to the memo535 on the drafting of the law on the extended plea bargain, which Ms Hildegard Penne drafted for the attention of the enquiry committee, the “professors consulted”, to which the Minister536 refers in his introductory presentation to the Senate were Messrs Axel Haelterman and Raf Verstraeten. 563. At his interview with the Senate Justice Committee, Mr Raf Verstraeten, who is also a lawyer, was acting on behalf of his client the ANTWERP WORLD DIAMOND CENTRE (AWDC). In this connection, Mr Raf Verstraeten's 537 fee notes mention the following services: “Voorbereiden Senaatscommissie Justitie”, “Bijwonen en toelichten in Senaatscommissie” et “Nabespreking kabinet minister van Justitie”.

533 Ibid., p. 14.

534 Ms Christine Defraigne or Mr Francis Delpérée.

535 Timeline and order of discussions on the proposed extended plea bargain - overview of work, Hildegard Penne. 536 See observation no. 365 above.

537 These fee notes were given to the enquiry committee by AWDC.

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Ms Hildegard Penne said on this subject that immediately after the interview she met with Mr Raf Verstraeten on the issue raised during the interviews: “Yes, I had an exchange of views on the matter with him. In his capacity as a professor, I should add. To avoid any mistakes.”538 (translation) In his testimony539 before the enquiry committee, Professor Raf Verstraeten explained that all the work he did on developing legislation on the extension of the plea bargain was paid for by AWDC. At his interview before the enquiry committee, Mr Axel Haelterman said he was surprised to be summoned by the Senate in 2011 because he was not a specialist. At the time, he sent an email to member of parliament Servais Verherstraeten, asking what was expected of him540. 564. After deciding to hold interviews, Mr Rudy Volders contacted Mr Grégory Mingen, an MR staff member in the Senate. At his interview, he indicated that this was the first time that he had been called directly on his mobile by someone from the office of the Minister of Finance, as he did not handle Finance cases, only those relating to the Justice committee. He said that Mr Rudy Volders' message was that the law on the extended plea bargain had to be passed without amendment in the Senate, and that the procedure needed to move forward. “The recommendation - and this was the message that was subsequently passed on - was to say “look, we understand that you are asking for interviews, but the package has to be approved in its entirety”. According to Grégory Matgen, Mr Rudy Volders “spoke to him about the risk of cases being time-barred, but did not specifically identify it”, adding that ‘'What was certain is that there was at least one case that was going to be time-barred in a relatively short time, so it was necessary to act.”541

538 Interview of Ms Hildegard Penne, 22 May 2017, CRIV 54 K034, p. 9.

539 Interview de Mr Raf Verstraeten, 19 April 2017, CRIV 54 K021, p. 14

540 Interview of Mr Axel Haelterman, 7 June 2017, CRIV 54 K039, p. 3. “Mr President, Ms De Wit, I have looked again for the Senate’s invitation

email. I couldn’t find it, but I did find an email that I sent the same day to Servais Verherstraeten, with whom I had numerous contacts, in which I told him that the Senate had summoned me and asked him what they were expecting from me. So, the Senate must have summoned me, no doubt by email. I was surprised by that. I was surprised to be summoned. I am not a criminal procedure specialist. I specialize in a variety of subjects but definitely not in criminal procedure. I therefore presumed that the Senate had invited me because they knew that I had been following and contributing to the draft law since 2008, and I had done so in the capacity of adviser and counsel to the diamond trade. This information had been published in the press.” 541 Interview of Mr Grégory Matgen, 24 May 2017, CRIV 54 K035, p. 14.

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Mr Rudy Volders542, said that as far as he was concerned, he called to ensure that the two cases were voted on together, as he was surprised that interviews had been requested on a text drafted by justice system specialists and approved by the Panel of prosecutors general. In addition, according to him, the budget forecast of EUR 50 million for the new plea bargain procedure was based on the annual report of the Finance SPF. Delaying the vote on the provision would undermine any guarantee of obtaining this amount. The longer the vote on the law was delayed, the lower the guarantee of obtaining this amount: "At that point, I think the most important point was that the more we delayed the vote on the law, the more the guarantee of getting those EUR 50 million euros per year was undermined. It was an annual amount, and it was March already.” (translation) However, he never confirmed that he had mentioned “the risk that at least one case would be time-barred”. (translation) With regard to the case of Mr Chodiev et al., Mr Jean-Michel Verelst, alternate in charge of this case, said at his interview that according to his calculations, the case was time-barred on 28 February 2013543. Mr Grégory Matgen also stated at his interview that, “these are being discussed in the aisles of the Senate, with staff members and senators wondering what is the real issue behind all this and why we have to act quickly,”544 and added: “So, between the rumours and the discussions, shall we say, in the aisles of the Senate, the fact is that we were talking about Antwerp society and the diamond traders”545.

542 Interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, p. 13; Interview of Mr Rudy Volders, 14 June 2017, CRIV 54 K040, pp. 2 and 3. 543 Interview of Mr Jean-Michel Verelst, 21 June 2017, CRIV 54 K044, pp. 5 and 6. 544 Interview of Mr Grégory Matgen, 24 May 2017, CRIV 54 K035, p. 8. 545 Ibid., p. 12.

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The existence of these discussions in the aisles was denied by the senators and staff members questioned on this subject546. 565. The interviews547 were held at the second meeting of the Justice Committee 548, which was held on 22 March 2011, from 2.20pm to 4.30pm. The minister of Justice Stefaan De Clerck is present. He was accompanied by Ms Hildegard Penne, an employee of the minister's office. The State Secretary responsible for coordinating fraud prevention was present and accompanied by Mr Jurgen Jordaens, an employee of his office. 566. For Mr Axel Haelterman, the purpose of the law is to respond to a need for legal effectiveness and security in cases where the prosecution of the case by a judge does not add any value because the public authorities, the victim and the perpetrator have all reached an agreement that meets the interests of all. He drew attention to the various conditions of application of the plea bargain option provided for in the text.549 567. Mr Raf Verstraeten placed the discussion on the plea bargain in the wider context of a review of the arrangements for alternative dispute resolution outside the traditional criminal trial. He set out what he regarded as the most important arguments in favour of extending the plea bargain, including cases in which an investigating judge or a trial court has already become involved. He then noted that the position of the investigating judge is a delicate point in the arrangement of this deal.550

546 Interview of Mr Philippe Mahoux, 24 May 2017, CRIV 54 K035 p. 4: “really, in no way.”; Interview of Ms Anne Karcher, 24 May 2017, CRIV

54 K035 p. 6: “No. Absolutely not”; Interview of Mr Peter Van Rompuy, 24 May 2017, CRIV 54 K035, pp. 2 and 6; Interview of Thomas Van Ongeval, 24 May 2017, CRIV 54 K035, p. 6: “Ik kende de link die u hier aanhaalt met de diamantsector niet. IK was daar niet op de hoogte.”; Interview of Ms Martine Taelman, 31 May 2017, CRIV 54 K036, pp. 3 and 4: “Nee, dat kan ik met stelligheid zeggen.”. 547 Justice Committee Report, Senate, N° 5-869/4. 548 Present at the meeting were Ms Christine Defraigne (Mr), Chair of the Committee, Ms Inge Faes, Mr Frank Boogaerts and Mr Karl Vanlouwe (N-VA), Mr Hassan Bousetta (PS), Mr Peter Van Rompuy (CD&V), Ms Güler Turan (sp.a), Ms Martine Taelman (Open Vld), Mr Bart Laeremans (Vlaams Belang), Ms Zakia Khattabi (Ecolo), and Mr Francis Delperée (cdH). The following political group staff were present: Ms Ann Karcher (PS) Mr Grégory Matgen (MR), Mr Thomas Van Ongeval (CD&V) and Mr Kris Gysels (Open Vld). 549 Justice Committee Report, Senate, N° 5-869/4, p. 25 e.s. 550 Ibid., p. 27.

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568. Mr Raf Verstraeten also made a remark that he described as “editorial” concerning its actual scope of application. According to him, “paragraph 1er, subparagraph 1er, in its current form, will be difficult to apply. Indeed, if a crime is punished, Article 80 of the Penal Code requires a minimum custodial sentence of one month. The text should stick more closely to the idea set forth in article 216b, i.e. that the prosecutor's office considers that it would require a custodial sentence of up to two years if the case was brought before the court.”551 569. According to Mr Adrien Masset, the text under review would result in certain classic principles of our criminal procedure law being overturned. The reform poses a problem of balance of power and constitutionality, “if the solution is imposed by a court.(...) A court is effectively obliged to decide on the dispute before it, either at the request of the prosecutor or by a referral order. It seems strange that a court handling a dispute would have to accept that a public prosecution has been dropped as a result of an agreement that was made without its involvement”.552 570. Mr Adrien Masset also thought that “a fundamental problem arises regarding the scope of the plea bargain system such as it is proposed in the text under review. It makes sense under the proposal to extend the system to include punishable crimes. The offence of forgery is indeed involved in every criminal business law case. However, our Penal Code categorises forgery as a crime (articles 196 and 214 of the Belgian Penal Code: a custodial sentence of 5 to 10 years and a fine of between 26 and 2,000 euros). In the event of punishment admitting mitigating circumstances, the minimum penalty is a one-month custodial sentence and a fine (articles 80 and 83 of the Belgian Penal Code). Unless an illegal penalty is required, the public prosecutor cannot simply request a fine in such a case. However, the plea bargain system is only possible if the public prosecutor considers it need only request a fine or a fine with confiscation. As a result, the system put in place will not achieve its objective because in major social and tax affairs there are almost always forged documents.”

551 Ibid., p. 29. 552 Ibid., p. 35. 553 Ibid.

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571. Amendment No. 18, tabled at the Finance and Budget Committee at the House of Representatives on 2 March 2011 was indeed intended to apply to punishable crimes. Although the justification of the amendment states that “Concerning the ratione materiae, scope of application, we rely on the existing mechanism of article 216a of the Belgian Criminal Investigation Code, for which there is also a general scope of application. However, it is necessary to extend this scope so that crimes that have always been punished, such as forgery and the falsification of documents, may also be the subject of a plea bargain”554. The text of the extended plea bargain law of 14 April 2011 did not provide for this extension of the scope of application. 572. On 22 March 2011, The Senate Legislation Assessment Department555 wrote a memo556 to members of parliament on the amendment of the Belgian Criminal Investigation Code contained in section 84 of the draft miscellaneous provisions law.

554 Amendments to the draft miscellaneous provisions law, DOC 53 1208/007, p. 29 and also pp. 23 and 30; idem for the draft law amending

the Belgian Criminal Investigation Code with regard to the ending of prosecution on payment of a sum of money, DOC 53 1252/001, p. 12 and also pp. 5 and 14; idem for the draft legislation amending Article 216a of the Belgian Criminal Investigation Code concerning the ending of prosecution on payment of a sum of money, P. 13 and also pp. 4 and 16. 555 In the memo, the contact person is Mr Jan Beckers. The department head was Mr Gert Van Der Biesen. 556 At his interview with the parliamentary enquiry committee, the Clerk of the Senate Gert Van Der Biesen explained: “This is a permanent rule in the Senate, which was introduced in 2000 by the Senate office: all texts adopted by the House that are subject to discussion proceedings must be subject to linguistic, forensic and legal quality control by the Senate legislation assessment department. This use was subsequently extended to entirely bicameral draft laws transmitted by the House (the “77”) and eventually to all texts on the agenda of a committee. Ordinary draft laws tabled in the Senate are therefore also subject to quality control by the Senate legislation assessment department. It is simply a matter of information made available to senators. In fact, it cannot even be granted the legal status of an opinion: it is straightforward information, factors that might possibly play a role in the decision to 'refer to or not, or to subsequently correct or not correct the proposed text.’ (translation)

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The memo included three remarks: 1. Changing the plea bargain system would also change the mediation system referred to therein. 2. The draft law does not take into account an amendment made by the law of 6 June 2010 introducing the Belgian Social Criminal Code, which had not yet entered into force. 3. The notion of “competent judge” should be clarified. 573. Alongside the meetings of the Justice Committee, the senators and political group staff of the government in routine business were planning to amend the law. According to Ms Christine Defraigne, “after the interviews, a few of us met in a room to prepare amendments. I had prepared amendments. We had been working on them. I remember that I had my sheet of paper, and I had about five amendments. I say that from memory. So the amendments dealt with the scope of the law, the judicial review and mainly with the issue of forgery. So the senators were there. As far as I remember, the representative of the minister, Ms Hildegard Penne, was also there. So we debated the amendments. So we are in this room. Don't ask me for the date or time. We have our amendments in front of us. At that point, I know that Mr Philippe Mahoux left the room and that, obviously, things were heating up. We were told: “No, it will not be possible to make any amendments. Otherwise the text will have to go back to the House”. That is how I understood it, rather than moral pressure; there was a political deal that had been signed and sealed.”557 574. Before the enquiry committee, Ms Hildegard Penne summarised the situation: “An urgent consultation had taken place following the comments made at the hearing. I remember it was around noon, but I don't know for sure whether it was 22nd or 23rd March. It was one of those two days. The members of the IWG and the members of parliament were present at this meeting. The key point that was discussed at that time was the scope of application. It was decided to use a formulation similar to that applied in the context of criminal mediation, i.e. to set a fixed penalty. During this meeting, Maïté De Rue, from the office of Minister Onkelinx, also provided for an exclusion from the scope of application for the actions that cause serious bodily harm”558. (translation)

557 Interview

of Ms Christine Defraigne, 24 May 2017, CRIV 54 K035, p. 11.

558 Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 8.

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575. On Wednesday, 23 March 2011, at 9.29am, the Senate’s CD&V group staff member sent on behalf of Senator Peter Van Rompuy two amendments prepared by the offices of the Minister of Justice and the State Secretary to respond to the remarks of the Law Assessment Department. Further to the (previous day’s) discussions, he intended to send two other amendments to article 84 of the miscellaneous provisions law. A translation was requested from the Senate departments so that the committee could discuss the amendments.559 576. According to emails given to the enquiry committee by Deputy Prime Minister Guy Vanhengel's office head, a majority meeting was held prior to the committee meeting. An email written by the Open Vld staff member Mr Gijs Boute stated: “The PS is playing the party-pooper; it wants the text to be adopted as quickly as possible without another “shuttle” (referral) to the House. Onkelinx has requested another one-hour break to confer on the matter, but in the absence of an agreement, De Clerck may take the initiative to convene the office heads this afternoon”560 (translation) To recap, by “shuttle” it is understood that in the event of an amendment in the Senate, article 78 of the Constitution provided that the draft would be returned to the House of Representatives so that it could examine the amendments and decide definitively, either by adopting them or by rejecting them in whole or in part. 577. The third meeting of the Justice committee561 was held on 23 March 2011 from 11.30am until 12.50pm. The minister of Justice Stefaan De Clerck is present. He was accompanied by Ms Hildegard Penne, a staff member in the minister's office. Carl Devlies, State Secretary for the coordination of fraud prevention was also present.

559 Email and attachment given to the parliamentary enquiry committee. 560 Email of 23 March 2011 at 11.24am from Mr Gijs Boute to Mr Fons

Borginon, presented to the enquiry committee by Mr Borginon. 561 Present at the meeting were: Ms Christine Defraigne (Mr), Chair of the Committee, Ms Inge Faes, Ms Lieve Maes and Ms Helga Stevens and Mr Frank Boogaerts (N-VA), Mr Hassan Bousetta, Mr Ahmed Laaouej and Mr Philippe Mahoux (PS), Mr Peter Van Rompuy (CD&V), Ms Güler Turan and Mr Ludo Sannen (sp.a), Ms Martine Taelman (Open Vld), Mr Bart Laeremans (Vlaams Belang), Ms Zakia Khattabi (Ecolo) and Mr Francis Delperée (cdH). The following political group staff were present: Mr William Wevers (N-VA), Ms Ann Karcher (PS) Mr Grégory Matgen (MR), Mr Thomas Van Ongeval (CD&V) and Mr Kris Gysels (Open Vld).

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578. The discussion on the enlargement of the plea bargain resumed. Parties that are not part of the government in routine business opposed the adoption of the text. The Minister of Justice and the State Secretary responsible for coordinating fraud prevention replied. Ms Zakia Khattabi began by lamenting “that they want to force the adoption of a text whose knock-on effect for criminal proceedings was not known. (.) She believed that the government in routine business was organising the work of the committee by conducting a breakneck speed review of an extension of the plea bargain that merited a lengthy debate.” 562 She added that the draft law “opens the back door to class justice”563. This view was shared by Ms Güler Turan564. 579. Minister Stefaan De Clerck replied that “the text had been the subject of lengthy discussions, preparations, studies and consultations within the government and in the House of Representatives”565. For the Minister, “the extension of the plea bargain meets a requirement of the public prosecutor, who is looking for additional tools in the fight against crime. The complexity of society, and tax and social legislation, makes such a tool indispensable. Circulars will be issued regarding the implementation of the plea bargain by the public prosecutor's office. The public prosecutor will be taking on greater responsibility as he will have to determine the most appropriate way to deal with each case.(...) We will have to trust that the public prosecutor will use the plea bargain procedure correctly, in accordance with the circulars to be issued.” Minister Stefaan De Clerck said that the same specialists had drawn up the regulation on banking secrecy and the regulation on the plea bargain.566 He argued for “rapid adoption of the proposal under review”.567 Mr Stefaan De Clerck told the enquiry committee: “It was of course requested that we not block the whole of the miscellaneous provisions law by these amendments or by any amendments to that law”.568 (translation)

562 Justice Committee Report, Senate, N° 5-869/4, p. 14. 563 Ibid.

564 Justice Committee Report, Senate, N° 5-869/4, p. 18. 565 Ibid.

566 Justice Committee Report, Senate, N° 5-869/4, p. 20. 567 Justice Committee Report, Senate, N° 5-869/4, p. 15.

568 Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 23.

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580. For State Secretary Carl Devlies, “the provision under review is clearly intended to promote the effective functioning of the justice system. The plea bargain is clearly recommended in cases where the public prosecutor wishes to impose a financial penalty. It also allows for faster processing of cases and guarantees collection of monies, while leaving the court room for manoeuvre in cases that are complex or disputed”569. 581. The State Secretary referred to the tasks of the prosecutor's office in relation to the extended plea bargain. According to him, “Article 151 of the Constitution refers to the independence of both the magistrates and the public prosecutor in the performance of their tasks”570. Moreover, he added that “the Panel of prosecutors general has always worked very closely in the area of criminal policy and, in particular, in the fight against tax fraud. We have to respect both the sitting judges and the public prosecutor, and to trust their decisions.571 The State Secretary also argued that the “proposed measure should be adopted as soon as possible”572. 582. Members of the political groups that are not associated with the government in routine business wished to interview the representatives of the investigating judges and to request the opinion of the Council of State, in order to respond to the remarks made by Mr Adrien Masset concerning the constitutionality of the new system. These requests were rejected.

569 Justice Committee Report, Senate, N° 5-869/4, p. 16. 570 Ibid.

571 Ibid., p. 21. 572 Ibid., p. 17.

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583. According to Ms Zakia Khattabi, “several outgoing majority committee members did not hide their lack of enthusiasm for the extension of the plea bargain procedure”573. At her interview with the enquiry committee, Ms Khattabi spoke of “the spontaneous attitude of some of my colleagues in the current majority in routine business who have been perturbed by what is happening. Some queried the form of the measure, questioning the desirability of such a debate as part of a miscellaneous provisions law. That was the case of my colleague, Mr Delperée. Others were concerned about the substance of the measure, for example Ms Defraigne, who wondered and expressed concern about the fact that the provision that was being debated raised serious questions about our criminal procedure.” 574. 584. From Parliament, the Minister of Justice asked his office head, Mr Jo Baret, to inform other government offices that a majority consultation meeting would be held at 1pm to 4pm, rue de la Loi, about the proposed plea bargain texts. 585. At 12.35pm, in a “very urgent” email, Mr Jo Baret invited the heads of the other offices. 586. At the end of the meeting, it was no longer a matter of amendments, but of a new draft law that included amendments to be made to article 84 of the Miscellaneous provisions law. 587. Ms Hildegard Penne said: “during this IWG meeting in the afternoon, I actually took part in drafting the legislation. I probably took part in handwritten or oral form. However, in my opinion, the draft amending law was drafted by colleagues of the members of parliament. The draft legislative text was tabled as a draft law on 23 March 2011, and the proposal was signed by senators Christine Defraigne, Francis Delperée, Philippe Mahoux, Martine Taelman and Peter Van Rompuy”. 588. Ms Hildegard Penne gave the enquiry committee the following explanations: “Amendments were discussed, and the text was finally approved in spite of the error. I was told that the programme law and the miscellaneous provisions law could not be amended because they were urgent, and the miscellaneous provisions law relied on a delicate political balance that could not be changed.

573 Ibid., p. 14.

574 Interview of Ms Zakia Khattabi, 31 May 2017, CRIV 54 K036, p. 2.

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The necessary legislative amendments were to be the subject of a separate amending law.”575 589. At 2.47pm, the Justice staff member of the CD&V group in the Senate sent the future signatories the text of the draft law amending articles 216a and 216b of the Belgian Criminal Investigation Code and article 7 of the law of 6 June 2010 introducing the Belgian Social Penal Code.576 (see the chapter on the amending law below.) 590. The fourth meeting of the Justice Committee577 was also held on 23 March 2011, from 2.45pm until 3.20pm. The minister of Justice Stefaan De Clerck is present. He was accompanied by Ms Hildegard Penne, an employee of the minister's office. The State Secretary responsible for coordinating fraud prevention, Mr Carl Devlies, was also present and accompanied by Mr Jurgen Jordaens, an employee of his office. 591. The session was spent discussing and voting on amendments tabled by the opposition. Ms Zakia Khattabi tabled an amendment to delete article 84 of the draft miscellaneous provisions law, on the extension of the plea bargain. Ms Güler Turan tabled an amendment with the same object. The amendment was rejected by 9 votes to 4, with 4 abstentions. Ms Inge Faes tabled two amendments, which were also tabled by N-VA in the House. The first provided that the public prosecutor would loses the option of compromise if a custodial sentence had already been handed down. The second stipulated that the amount of the deal could not be less than the amounts, charges and confiscations that an accused had been ordered to pay by the court or the court of appeal. The amendments were rejected by 9 votes to 5, with 3 abstentions.

575 Interview of Ms Hildegard Penne, 15 March 2017, CRIV 54 K015, p. 8.

576 Email and attachment given to the parliamentary enquiry committee.

577 The following were present: Ms Christine Defraigne (Mr), Chair of the Committee, for N-VA, Ms Inge Faes, Ms Lieve Maes and Ms Helga

Stevens, Mr Frank Boogaerts and Mr Patrick De Groote, for the PS, Mr Hassan Bousetta, Mr Ahmed Laaouej and Mr Philippe Mahoux, for MR, Mr François Bellot, for CD&V, Mr Peter Van Rompuy and Mr Dirk Claes, for Sp.a, Ms Güler Turan and Mr Guy Swennen, for Open Vld, Ms Martine Taelman, for Vlaams Belang, Mr Bart Laeremans, for Ecolo, Ms Zakia Khattabi and for cdH, Mr Francis Delperée. The following political group staff were present: Mr William Wevers (N-VA), Ms Ann Karcher (PS) Mr Grégory Matgen (MR), Mr Thomas Van Ongeval (CD&V) and Mr Kris Gysels (Open Vld).

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592. Article 84 as a whole was adopted by 9 votes to 8. 593. The fifth meeting of the Justice committee578 was held on 24 March 2011 from 2.45pm until 2.55pm. The minister of Justice Stefaan De Clerck is present. The report by Messrs Peter Van Rompuy and Francis Delperée was approved by 13 votes in favour, with 1 abstention. 12.4. Review in plenary meeting579 594. The Senate met in plenary session on 24 March 2011 at 3pm. After oral questions, the general discussion on draft miscellaneous provisions law no. 5-869 opened with the reading of the report on the work by Messrs Francis Delperée and Peter Van Rompuy. 595. Senator Johan Vande Lanotte then took the floor to point out that, together with a few colleagues from N-VA and Vlaams Belang, they had introduced a motion to request an opinion from the Council of State. In fact, they were looking to postpone the review of the draft miscellaneous provisions law. Otherwise, a request for an opinion from the Council of State would be submitted by a majority of the Dutch language group on an amendment tabled during the session. 596. Amendments to the draft law were tabled at the Justice committee meeting. They were intended to amend the draft provision concerning the extended plea bargain. They were all rejected. However, further to the work at the committee on 23 March 2011, five senators representing majority parties in routine business tabled a new draft law to amend the Belgian Criminal Investigation Code on this subject. It was a matter of correcting the draft law, but only when it had become law.580

578 The following were present: Ms Christine Defraigne (Mr), Chair of the Committee, for N-VA, Ms Inge Faes, for the PS, Mr Hassan Bousetta,

Mr Ahmed Laaouej and Mr Philippe Mahoux, for MR, Mr Alain Courtois, for CD&V, Ms Sabine de Bethune and Mr Peter Van Rompuy, for Sp.a, Ms Güler Turan and Mr Guy Swennen, for Open Vld, Ms Martine Taelman, for Vlaams Belang, Mr Bart Laeremans, for Ecolo, Ms Zakia Khattabi and for cdH, Mr Francis Delperée. The following political group staff were present: Mr Grégory Matgen (MR) and Mr Thomas Van Ongeval (CD&V). 579 Senate, Ann. 5-17, pp. 26 and s. 580 See Restorative Law.

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597. Senators who threatened to request the opinion of the Council of State requested that the amending law reviewed on the same day be examined promptly by the committee so that it could be adopted by the Senate at the same time as the miscellaneous provisions law, a week later581. 598. After a break between 5.20pm and 5.45pm, the sp.a and N-VA groups undertook not to ask the Council of State for any opinion if the discussion on the draft miscellaneous provisions law was postponed by one week and draft law no. 5-893 was examined in the meantime. The president of the Senate suggested debating the miscellaneous provisions law on Thursday, 31 March 2011, in the morning. The meeting agreed to this.582 13. Restorative Law583 599. When it discusses a draft law, the Senate may exercise its right of amendment. In this case, the proposal is referred to the House of Representatives, who shall take a final decision, either by adopting or rejecting, in whole or in part, the amendments adopted by the Senate.” 600. Nevertheless, the issue is particularly sensitive when it comes to examining a programme law, as the Clerk of the Senate pointed out during his interview with the enquiry committee. Firstly, referring the proposal to the House is a waste of time. If a project contains more than a hundred articles that regulate dozens of topics, which may or may not be urgent. Referral entails deferring the entry into force of the whole law. Secondly, it is quite possible that the political agreement that we may have reached in the House during the first vote is no longer there. Once agreement has been given, the draft law is confirmed. We have passed the course of the House. At least in theory, returning is always a risk.584

581 Senate, Ann. 5-17, p. 38. 582 Senate, Ann. 5-17, p. 44.

583 Proposal of the law amending Articles 216a and 216b of the Belgian Criminal Investigation Code and Article 7 of the Law of 6 June 2010

introducing the Belgian Corporate Criminal Code by Ms Christine Defraigne, Mr Francis Delpérée and Mr Philippe Mahoux, Ms Martine Taelman and Mr Peter Van Rompuy. (Senate n°5-893/1). 584 Interview of Mr Gert Van der Biesen, 24 May 2017, CRIV 54 K035, p. 4.

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601. Since the 2014 reform, the Senate's right of initiative has been limited to the subjects referred to in article 77 of the Constitution over which the House of Representatives and the Senate have authority on an equal footing (the “perfect” bicameral procedure.585 The amendment of the Belgian Criminal Investigation Code was an “optional” bicameral procedure, but in 2011 the Senate still had the right of initiative in these matters. Consequently, on 23 March 2011 a draft was tabled in Senate amending Articles 216a and 216b of the Belgian Criminal Investigation Code and Article 7 of the Law of 6 June 2010 introducing the Belgian Corporate Criminal Code by Ms Christine Defraigne, Mr Francis Delpérée and Mr Philippe Mahoux, Ms Martine Taelman and Mr Peter Van Rompuy. It was taken into consideration on 24 March 2011 and sent to the Justice committee.586 602. According to its developments, the draft law was intended to follow up on certain technical remarks made during the review by the Senate's Justice Committee of the miscellaneous provisions law (Senate, No. 5-869/1) which alters Article 216a of the Belgian Criminal Investigation Code. The articles were commented on as follows: “At the interview of Professors Haelterman, Verstraeten and Masset on 22 March 2011 with the Senate's Justice Committee, it appeared that the proposed amendment to article 216a, paragraph 1, did not comply with Article 80 of the Belgian Penal Code. This article stipulates that if a crime is punished by the admission of mitigating circumstances, a custodial sentence of at least one month is required. In order to remedy this situation, the extension of the scope of application is carried out, by analogy with Article 216b of the Belgian Criminal Investigation Code, in that a deal can be offered if the public prosecutor believes that the crime is not of the type that must be punished by a primary custodial sentence of more than two years or a heavier sentence, or a primary custodial sentence of more than two years or a heavier sentence with confiscation.

585 Article 75 of the Constitution.

586 See above for the origins and drafting of the law.

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As is the case with Article 216b on criminal mediation, the criterion for granting a deal is not, for a punishable offence, the penalty set by law, but the primary penalty that appears to be specifically required, possibly after the admission of mitigating circumstances. If the public prosecutor believes that a custodial sentence, a community service order or an additional sentence such as the deprivation of civil and political rights is required, it goes without saying that he will not offer a deal. In the light of article 151 of the Constitution, the trial judge, when confirming that public prosecution is to be dropped, to examine beforehand whether the formal conditions for agreeing a deal are fulfilled. This control concerns only the formal conditions. It is therefore not in any way an examination of the merits of the case or an examination to determine whether a deal would be appropriate or proportional. This assessment is the exclusive remit of the public prosecutor, again in accordance with article 151 of the Constitution. When reviewing the draft miscellaneous provisions law (Senate, No. 5-869/1), the Senate’s legislation assessment department asked whether the legislator’s intention was to extend the new regulation to include criminal mediation. The aim was indeed not to extend the criminal mediation procedure referred to in article 216b of the Belgian Penal Code, until the investigation stage and the trial proceedings. Article 3 ensures this. When reviewing the draft miscellaneous provisions law (Senate, no. 5-869/1), the Senate’s legislation assessment department pointed out that article 7 of the law of 6 June 2010 introducing the Belgian Social Criminal Code also made changes to article 216a of the Belgian Criminal Investigation Code.

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As article 216a, paragraph 1 was amended by the law of 6 June 2010 introducing the Belgian Social Criminal Code and this law only came into force on 1 July 2011, the provision in question of said law had to be revised accordingly.”587 13.1. Review by the Justice Committee 603. The meeting of the Justice committee588 was held on 29 March 2011 from 2.25pm until 4.35pm. The minister of Justice Stefaan De Clerck is present. He was accompanied by Ms Hildegard Penne, an employee of the minister's office. Mr Jurgen Jordaens, a staff member in the office of the State Secretary responsible for fraud prevention, was also present. 604. Ms Zakia Khattabi and Ms Helga Stevens were designated as rapporteurs by the Commission. Ms Christine Defraigne, the first signatory, oversaw the work. Mr Francis Delperée introduced the proposal. The draft law under review arose in response to remarks made during the committee’s debate on the miscellaneous provisions law. The discussion of the miscellaneous provisions law in plenary meeting was postponed to another plenary meeting. It was not resumed in the Justice committee. The work of the committee concerned solely the new draft law tabled by Ms Christine Defraigne et al., which is referred to as the “amending law”589. 605. Ms Inge Faes acknowledged that the draft amending law was in response to a series of remarks made by the Professors who were interviewed in the course of the review of the draft miscellaneous provisions law but considered that some issues had not been resolved.590 606. Ms Zakia Khattabi also considered that the tabling of an amending law showed the relevance of the substantive remarks that had been made during the discussion on article 84 of the draft miscellaneous provisions law.

Doc. Senate, N°5-893/1, comments on the articles. The following were present: Ms Christine Defraigne (MR), Chair of the Commission, for N-VA, Ms Inge Faes, Ms Lieve Maes and Ms Helga Stevens, for the PS, Ms Fatiha Saïdi, Mr Hassan Bousetta and Mr Philippe Mahoux, for MR, Mr Alain Courtois, for CD&V, Ms Sabine de Bethune and Mr Peter Van Rompuy, for Sp.a, Ms Güler Turan and Mr Guy Swennen, for Open Vld, Ms Martine Taelman, for Vlaams Belang, Mr Bart Laeremans, for Ecolo, Ms Zakia Khattabi and for cdH, Mr Francis Delperée. The following political group staff were present: Ms Ann Karcher (PS) Mr Grégory Matgen (MR), Mr Thomas Van Ongeval (CD&V), Mr Ben Segers (s.pa), Mr Kris Gysels (Open Vld) and a person from NV-A. 589 Justice Committee Report, Senate, N°5-893/3, p. 3. 590 Ibid. 587 588

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According to Ms Zakia Khattabi, the authors of the text under review fulfilled their responsibilities where the government wanted to just push the text through. She noted that the draft amending law made a number of improvements to the plea bargain system. She nevertheless made various criticisms of the text. First of all, she lamented that this fundamental change in the criminal procedure was not preceded by a debate on a comprehensive overhaul of our prosecution system. She also denounced the fact that the competent judge’s control over the plea bargain was purely formal and did not relate to the merits of the case. Lastly, she feared that the system risked creating inequalities between accused persons, who would not be treated fairly.591 607. Ms Güler Turan thanked the outgoing majority for agreeing to table a draft amending law in response to several comments made during the review of the draft miscellaneous provisions law. She stated that her objections focused on the fact that offences involving serious bodily harm had not been excluded and that there was no guarantee of additional protection for the victim against coercion or unreasonable pressure. By excluding actions involving serious bodily harm, this shortcoming would be remedied. The person speaking said she was highly satisfied with this amendment.592 608. Several amendments were tabled by N-VA, VB and sp.a concerning the scope of the plea bargain option, in the course of the proceedings, as regards the offence prosecuted and the penalty incurred, on compensation for victims including the tax authorities and on the entry into force of the amending law. All the amendments were rejected. 609. Ms Zakia Khattabi said that she would abstain in the final vote. She welcomed the efforts of the committee members of the Committee who had agreed to reopen the debate to make changes to the plea bargain system as promoted by the government. However, she would not support the text because it did not go far enough.”593. 610. The whole proposal was adopted by 9 votes to 4 with 3 abstentions. By unanimous decision of the 17 members present, the rapporteurs were entrusted with drafting the report.594

Ibid., p. 5. Ibid., p. 6. 593 Ibid., p. 24. 594 Email and attachment given to the parliamentary enquiry committee. 591 592

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611. During the discussion of an amendment by Ms Inge Faes and Ms Helga Stevens intended to bring the miscellaneous provisions law and the amending law into force on the same day, the Minister of Justice told the committee that “the draft miscellaneous provisions law, which also contained other provisions, will be published once it has been approved by the Senate. The draft law under review must also be approved as soon as possible. In the meantime, the Panel of prosecutors general will be instructed to delay the application of the plea bargain until the amending law has been published. This delay will not be very long in any case”595. 612. On this matter, Mr Stefaan De Clerck told the enquiry committee: “On this matter, Mr Stefaan De Clerck told the enquiry committee: “Of course, everyone agreed to tell the committee that the miscellaneous provisions law would pass, but that the needful should be done immediately for this amendment. We wanted to go ahead with the amending law quickly as possible and, if possible, have it published together with the law. It was a proactive approach.”596 613. The public prosecutor at the Antwerp Court of Appeal, Mr Yves Liégeois, told the enquiry committee that the Minister of Justice could also have chosen - with the agreement of his colleagues - to postpone the publication of the miscellaneous provisions law in the Moniteur Belge so that it could be published at the same time as the amending law: “the minister could also have decided, in agreement with everyone, not to publish it”.597 13.2. Review in plenary meeting 614. On 31 March 2011, the agenda of the Senate’s morning session included both the draft miscellaneous provisions law (Doc. no. 5-869) and the draft law amending Articles 216a and 216b of the Belgian Criminal Investigation Code and Article 7 of the Law of 6 June 2010 introducing the Social Criminal Code (of Ms Christine Defraigne et al.; Doc no. 5-893)

Justice Committee Report, Senate doc, N°5-893/3, p. 23. Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 23. 597 Interview of Mr Yves Liégeois, 21 March 2017, CRIV 54 K043, p. 14 595 596

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615. Most of the political groups resumed the arguments put forward at the committee on the plea bargain. 616. For MR, Mr François Bellot recalled the contents of the discussion on article 84 of the draft law. He said of the one-week postponement: “the Justice committee has therefore fulfilled its responsibilities by adopting the amending law this week without hampering the essential adoption of the entire draft miscellaneous provisions law, while strengthening the legal certainty of the text. We have thus responded to the opposition's wish expressed in plenary meeting on Thursday, to make the adoption of the draft miscellaneous provisions law conditional on the joint adoption of an amending or remedial law, as some would put it.”598 617. The Minister of Justice, Mr Stefaan De Clerck, defended the principle of the plea bargain saying that it was an effective instrument that the public prosecutor will have to apply in practice on the basis of circulars and with the greatest circumspection. For the Minister, an immediate Senate review of an amending law is an intelligent approach. This second law actually improves the text on the plea bargain. With regard to the coming into force of the law, Minister Stefaan De Clerck said that: “Al die amendementen zijn al besproken. Wat de inwerkingtreding betreft, volgt elke wet best haar eigen logica. We kunnen dus de eigen logica van de diverse wetten waaraan wordt geraakt, beter ongemoeid laten.”599 618. No amendment to the miscellaneous provisions law was adopted in plenary meeting. The Senate adopted the proposal without amendment. Present at the meeting: 60, For: 33, Against: 15, Abstentions: 12.600

Ibid. Ibid., p. 23. 600 For: Marie Arena, Wouter Beke, François Bellot, Hassan Bousetta, Jacques Brotchi, Dirk Claes, Alain Courtois, Rik Daems, Sabine de Bethune, Alexander De Croo, Armand De Decker, Christine Defraigne, Francis Delpérée, Willy Demeyer, Guido De Padt, Gérard Deprez, Caroline Désir, André du Bus de Warnaffe, Jan Durnez, Dimitri Fourny, Cindy Franssen, Nele Lijnen, Philippe Mahoux, Richard Miller, Philippe Moureaux, Fatiha Saïdi, Louis Siquet, Martine Taelman, Muriel Targnion, Rik Torfs, Peter Van Rompuy, Fabienne Winckel and Olga Zrihen. Against: Frank Boogaerts, Yves Buysse, Piet De Bruyn, Patrick De Groote, Bart De Wever, Filip Dewinter, Inge Faes, Louis Ide, Bart Laeremans, Lieve Maes, Danny Pieters, Elke Sleurs, Helga Stevens, Anke Van Dermeersch, Karl Vanlouwe. Abstentions: Bert Anciaux, Marcel Cheron, Liesbeth Homans, Zakia Khattabi, Jacky Morael, Claudia Niessen, Freya Piryns, Ludo Sannen, Guy Swennen, Marleen Temmerman, Cécile Thibaut and Mieke Vogels. 598 599

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619. The draft law was forwarded to the House of Representatives for Royal Assent and promulgation on 14 April 2011. It was then granted Royal Assent and published in the Moniteur on 6 May 2011. It came into force on 16 May 2011. 620. No amendment to the draft law of Ms Christine Defraigne et al. (Doc. no. 5-893) was adopted in plenary meeting. The draft law was adopted. Present at the meeting: 61, For: 34, Against: 16, Abstentions: 11.601 Naturalization procedure in the House of representatives 13.3. Debate and vote on the Remedial Law in the House (26 April 2011 - 30 June 2011) 621. After its passing by the Senate the draft Law “amending Articles 216a and 216b of the Belgian Criminal Investigation Code and Article 7 of the Law of 6 June 2010 introducing the Belgian Corporate Criminal Code”, called “Restorative Law” was discussed in the House (Doc number 53-1344). 622. This time, the draft law was reviewed by the Justice committee on 26 April 2011602. 623. In accordance with the bicameral parliamentary procedure, the Minister of Justice presented and defended the text adopted by the Senate against members of the House.

601 For: Marie Arena, Wouter Beke, François Bellot, Hassan Bousetta, Jacques Brotchi, Dirk Claes, Alain Courtois, Rik Daems, Sabine

de Bethune, Alexander De Croo, Armand De Decker, Christine Defraigne, Francis Delpérée, Willy Demeyer, Guido De Padt, Gérard Deprez, Caroline Désir, André du Bus de Warnaffe, Jan Durnez, Dimitri Fourny, Cindy Franssen, Nele Lijnen, Paul Magnette, Philippe Mahoux, Richard Miller, Philippe Moureaux, Fatiha Saïdi, Louis Siquet, Martine Taelman, Muriel Targnion, Rik Torfs, Peter Van Rompuy, Fabienne Winckel and Olga Zrihen. Against: Frank Boogaerts, Yves Buysse, Piet De Bruyn, Patrick De Groote, Bart De Wever, Filip Dewinter, Inge Faes, Liesbeth Homans, Louis Ide, Bart Laeremans, Lieve Maes, Danny Pieters, Elke Sleurs, Helga Stevens, Anke Van Dermeersch, Karl Vanlouwe. Abstentions: Bert Anciaux, Marcel Cheron, Zakia Khattabi, Jacky Morael, Claudia Niessen, Freya Piryns, Ludo Sannen, Guy Swennen, Marleen Temmerman, Cécile Thibaut and Mieke Vogels. 602 See report prepared on behalf of the Justice committee by Ms Sabian Lahaye-Battheu on 6 May 2011 (DOC 53 1344/003).

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624. A request for interviews with members of the Judiciary, who had in the meantime responded in an open letter603 to the vote in the House on the principle of the plea bargain, as well as in the opinion of the Council of State was made from the outset by Mr Stefaan Van Hecke (Ecolo-Groen). 625. This request was backed by other members of the political groups not involved in the government on routine business (including Ms Kristien Van Vaerenbergh, N-VA) and, on the other hand, opposed by Ms Carina Van Cauter (Vld) and Mr Servais Verherstraeten (cd&V), Mr Rachid Madrane (PS), Christian Brothorn (CDH), and by the Minister of Justice, who considered that the limited scope of this “amending law” did not justify it and that sufficient debate had already taken place in the House and Senate discussions on the miscellaneous provisions law. Mr Servais Verherstraeten also pointed out that the draft law should be adopted immediately, so that the text of the amending law could come into force at the same time as the text that had to be corrected in this manner604. 626. The request to hold interviews and the request for a consultation of the Council of State were both rejected by the House Justice committee, by 10 votes to 6. 627. In the course of the general debate, among the opponents of the text, several members spoke in favour of: — regarding the plea bargain as tantamount to capitulation by the Justice system when it comes to certain

forms of crime;

— denouncing a system that creates a form of class justice, as it would allow those who have the means

to escape conviction;

Open Letter dated 22 April 2011 to the House of Representatives, concerning the extension of the plea bargain, signed by Messrs Karel Van Cauwenberghe, President of the Association of Investigating Judges, Hervé Louveaux, President of the Magistrates' Union Association, Jean-Baptiste Andries, President of the Professional Magistrates’ Union (UPM), Pierre Lefranc, President of Magistratuur & Maatschappij (M&M), Christian Denoyelle, President of The National Union of Magistrates of First Instance (UNM). 604 Justice Committee Report, Senate, by Ms Sabien Lahaye-Batteu, DOC 53 1344/003, p. 5. 603

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— noting that this was a particularly rapid amending law, amending a text not yet published by the

Moniteur Belge;

— stating that such a fundamental change in how justice is rendered required a far more systematic and

thorough consultation of officials in the judicial world.

628. It was the Minister of Justice and State Secretary Carl Devlies' employee, Bart Van Humbeeck, who were tasked with responding to criticism from the opposition. 629. Amendments were tabled by Mr Stefaan Van Hecke and Ms Juliette Boulet (Ecolo-Groen) to revert to the original version of the Belgian Criminal Investigation Code, and by Ms Kristien Van Vaerenbergh (N-VA) to block plea bargains in the event of psychological violence. These were rejected by the members of the majority. 630. In the end, the entire draft law, forwarded by the Senate, was adopted without amendment by 10 votes to 7. 631. The draft law was placed on the agenda of the plenary meeting of 12 May 2011. 632. At this meeting, Mr Stefaan Van Hecke (Ecolo-Groen) filed a request for an opinion with the Council of State, supported by more than 30 members of the meeting, representing N-VA and sp.a. in addition to his own group. 633. Several members spoke in favour of this request for an opinion: Ms Kristien Van Vaerenbergh (N-VA), Mr Georges Gilkinet (Ecolo-Groen) and Mr Dirk Van der Maelen (sp.a), but it was opposed on behalf of the majority by Mr Servais Verherstraeten (CD&V), who considered that the request did not relate to the right object (namely the miscellaneous provisions law). 634. In the end, 58 members backed the request for an opinion from the Council of State. 635. The president of the House refer a request to the Council of State, on 16 May 2011, for an opinion to be given within five business days. 636. In its opinion no. 49.702/2 of 23 May 2011, however, the Council of State deemed the request for an opinion inadmissible as the grounds of urgency not being admissible as it did not set out concrete evidence that it was necessary.605

605

DOC 53 1344/004.

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637. The president of the House again referred a request to the Council of State, on 1 June 2011, for an opinion to be given within five business days, this time providing valid evidence of its urgency. 638. In its opinion no. 49.792/2 of 7 June 2011, the Council of State noted only a risk that the text could be misinterpreted, which it asked the legislator to clarify.606 639. The plenary meeting of the House on 23 June decided to refer the text to the Justice committee. 640. The draft law was once again reviewed by the Justice committee on 28 June 2011607. 641. Amendments were tabled by Ms Kristien Van Vaerenbergh (N-VA) with the aim of responding to the opinion of the State Council. 642. The Minister of Justice and the members of the majority did not wish to make any amendments to the original text, believing that the provisions of the text were sufficiently clear or could be clarified through the circulars of the public prosecutors, and that it should be possible to assess dossiers on a case-by-case basis. 7.

643. The entire draft law was adopted without amendment by the House Justice Committee by 9 votes to

644. The draft law was placed one last time on the agenda of the plenary meeting of 30 June 2011, during which it raised no further discussions. The amending law was finally adopted by 82 votes for, 12 abstentions and 28 votes against608.

606 DOC 53 1344/005. 607 DOC 53 1344/007.

608 http://www.lachambre.be/doc/PCRI/html/53/ip042x.html.

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645. It was then submitted for Royal Assent on 11 July 2011 and published in the Moniteur Belge on 1 August 2011. It thus came into force on 11 August 2011609.

609 http://www.ejustice.just.fgov.be/eli/loi/2011/07/11/2011009542/ justel.

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II. — ASSESSMENTS 1. General comment 646. The law of 14 April 2011 was adopted according to the rules in force at the time, in a bicameral procedure. This bicameralism further limited the potential influence of one member of parliament in particular such that any initiative by such member can be neutralized in the other assembly. Although they may influence a decision, a member of parliament does not have the power to impose a legislative initiative on their own. A majority is always required. In addition, the Senate could in theory correct the House’s legislative initiatives in the House. However, the House always had the last word. Conversely, and still hypothetically, the House could also correct or block the Senate’s legislative initiatives. However, this amendment capacity was in reality particularly limited as regards the miscellaneous provisions law, which comprised a broad range of topics and numerous articles, so amending a single article would have resulted in a parliamentary back-and-forth and the delaying of numerous other provisions, some of them urgent or the result of a fragile political compromise. Moreover, in our parliamentary system, a member of parliament’s individual and autonomous freedom to act is in reality limited by the agreements concluded beforehand in the government. 647. It is normal for members of parliament or the government to come into contact with their constituents, citizens and interest groups. These citizens or groups frequently report problems to members of parliament or the government and ask them to find a solution for them. To find potential solutions to the problems reported, members of parliament and the government call on the expertise of party or office staff, professors, organizations, (external) experts in this field, and gather opinions. Sometimes legislative changes that have already been prepared are suggested by individuals, interest groups or organizations to members of parliament who, if they agree with them, table them as a draft law. It is not unusual for these individuals and/or organizations to be subsequently informed of developments in the legislative process or that they find out about the progress of the problems they have reported.

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648. Frequently, amendments and legislation that have been prepared at the government level, are submitted to the House with the signature of members of the parliamentary majority. 2. Appearance of the “extended plea bargain concept” 649. The processing times for tax or finance-related trials were particularly long in our country, which was formulated as follows at the enquiry committee: “we were confronted with an enormous volume of outstanding cases.” These were often complex cases that were at risk of being time-barred or were at risk of overrunning their reasonable deadline. This was also why members of the public prosecutor’s office called for an increase in the resources available to them to effectively combat this type of phenomenon, for which others wanted an extension of the legislation on plea bargains and were debating texts to that end. 650. Between 2006 and 2009, various individuals and jurisdictions promoted the idea of extending the options available to the public prosecutor for concluding a plea bargain. These included political parties, members of the public prosecutor's office and business sector organizations. More specifically, the avenues for reflection on such extension were included in CD&V’s 2007 electoral programme, the Antwerp general prosecutor's office (Mr Yves Liégeois) said that he was in favour of it at the Grand Franchimont parliamentary discussion in 2006 and in the public prosecutor’s Memorandum of May 2007, and AWDC mentioned the extension in the June 2007 Memorandum to political parties with a view to forming a government. A separate section on the extension of the options for an amicable agreement and plea bargain by the public prosecutor was included in Justice Minister Jo Verdeuzen’s policy memo of 5 November 2008. 3. Political decision-making 651. No new legal concept has been developed. On the other hand, the existing legislation (articles 216 and 216a of the Belgian Criminal Investigation Code) was developed with a view to broadening its substantive and procedural scope. 652. The enquiry committee noted that in 2008-2009, proposals to adapt article 216a of the Belgian Criminal Investigation Code were drawn up by three different working groups.

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This was the local consultation in Antwerp of the Plea Bargain working group within the framework of the 2008-2009 Action Plan of the tax and social security fraud prevention Panel and the public prosecutor's office (Criminal Procedure expert network). The Committee concluded that there was genuine demand for an extension of the plea bargain from the various bodies of the public prosecutor's office. 653. At the local consultation in Antwerp, Mr Raf Verstraeten was responsible for drafting the memo on the extended plea bargain. This memo by Mr Raf Verstraeten was also discussed at the plea bargain working group as part of the 2008-2009 Action Plan. Other texts were also discussed. Most of the members of this plea bargain working group were unaware that Mr Raf Verstraeten was participating in the local consultation in Antwerp as AWDCâ&#x20AC;&#x2122;s counsel. The enquiry committee considers that he did not display sufficient transparency. 654. The committee noted that the final text that served as the basis for drafting the draft legislation amending the extended plea bargain was the result of lengthy discussions (in which a variety of actors were involve), ultimately endorsed by the Panel of prosecutors general in 2009. 655. Article 216a of the Belgian Criminal Investigation Code as amended by the law of 14 April 2011 had a broad scope of application. Its application did not apply to a particular business sector or case. Moreover, its applicability was at the discretion of the public prosecutor. Lastly, it was an option - there was no obligation to use it - in addition to the panoply of conflict resolution options. 656. On 8 December 2010, during the interviews held in the House at the Finance and Budget Committee on banking secrecy, Mr Axel Haelterman suggested linking the cases relating to banking secrecy and the plea bargain. He had already mooted this idea with the diamond trade in November 2010. Mr Haelterman was invited to the Finance and Budget Committee as an expert on banking secrecy. It is not clear whether Mr Haelterman submitted this idea to Parliament as an expert or as an advisor to AWDC. By not clarifying his dual status, he failed to display sufficient transparency.

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657. On the basis of the interviews, and the letters and memos written at the time by the various advisers of the political groups and offices (see observations nos. 489-524), the commission considers that the linking of the lifting of banking secrecy and the plea bargain on 31 January 2011 was classic political linkage. The committee does not have information at its disposal that would determine whether this linkage was created with the intention of offering a plea bargain in a specific ongoing court case (trial of Mr Patokh Chodiev et al.). 658. The enquiry committee found that there was no evidence that contact between the Minister of Justice, Mr De Clerck, and Mr Armand De Decker and between Mr De Decker and two members of the office of the Minister of Justice influenced the legislative process. 659. An examination of the dossier revealed that the law on the plea bargain was drafted in accordance with the formal conditions laid down in the Constitution. The committee noted the involvement of the legislative actors - namely ministers, members of their offices, members of parliament and their staff. This action took the form of inter-office meetings and meetings between members of parliament and office members. The committee considered that these practices are consistent with usual political practice and contribute to the proper functioning of the State. 660. The process of drafting the law has become more complex since its principles of drafting were enshrined in the Constitution and in the Assembly Regulations. A set of institutions, groups and individuals are involved in pre-legislative operations. They do it openly or more confidentially, of their own initiative or because they have been consulted. During the parliamentary debate, each member is not necessarily aware of these pre-legislative operations. 4. Experts - Invited to hearings 661. Mr Raf Verstraeten attended the meeting of the Criminal Procedure expert network on 22 January 2009. When the expert network was set up, it was deliberately intended that it could include third parties who could contribute a certain expertise when the matter required it. Mr Raf Verstraeten billed AWDC for his involvement. Mr Raf Verstraeten lacked transparency by failing to mention that he was paid by AWDC for this meeting.

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662. During the interviews with the Senate’s Justice Committee, Messrs Axel Haelterman and Raf Verstraeten were specifically interviewed as experts. The enquiry committee noted that Messrs Axel Haelterman and Raf Verstraeten billed AWDC for these interviews. 663. Mr Raf Verstraeten and Mr Axel Haelterman lacked transparency by concealing from the Senators the fact that they were in a conflict of interest. They lacked transparency by failing to mention that they were paid by AWDC for this meeting. 664. Parliament is not always aware that there is a conflict of interest between the various activities of an expert, who may for example combine the capacities of university professor, lawyer and lobbyist. Parliament is not always aware of the fact that an expert is being paid by one or other principal at the time. 665. The committee considers that these situations risk discrediting the role of experts and parliamentary work in general. 5. Lobbying 666. Although AWDC was working toward an extension of the “extended plea bargain” law, the enquiry committee found that it had not influenced the legislative process in 2011. 6. The legislative process 667. When the Finance and Budget committee of the House of Representatives was reviewing the amendment to the extended plea bargain on March 2, 2011, most members of the committee refused to have an opinion requested from the Justice Committee. Although this refusal was not in breach of the rules of the House and was dictated by the desire not to hold up the miscellaneous provisions proposal as a whole, the committee considered that it was unwise to thus deprive itself of the expertise of the members of the Justice Committee of the House of Representatives.

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668. After the vote in the House, the draft miscellaneous provisions law was discussed by the Senate. The provisions relating to the extended plea bargain were attributed to the Senate Justice Committee, where they were the subject of a lengthy debate, which drew in particular on the interviews. 669. The enquiry committee found that the manner in which the text was examined both in the House and in the Senate was not in breach of the rules of both houses. The timeliness of the review was due to the fact that the provision was included in a miscellaneous provisions law that was to come into force imminently. 670. The legislative practice of bundling numerous unrelated issues into draft “miscellaneous provisions” laws harms the quality of the legislative work of the House of Representatives as it often does not allow enough time for a thorough review of each of the draft provisions. 7. Transparency and ethics 671. Mr Armand De Decker took advantage of his status as deputy president of the Senate to gain benefits in the exercise of his profession as a lawyer. This was the case when he visited the home and office of the then justice minister, Stefaan De Clerck, without first announcing that he was acting on behalf of Mr Patokh Chodiev, Mr Alijan Ibragimov and Mr Alexandre Machkevitch. 672. Despite a conflict of interest, Mr Armand De Decker, while on the team of lawyers of Mr Patokh Chodiev et al., participated in the legislative work that led to the adoption of the principle of the amicable plea bargain and the adoption of the amending law, but failed to report said conflict of interest.

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III. ¾ RECOMMENDATIONS

The work of this enquiry committee was concomitant with that of the Political Renewal Working Group, which filed its report on 18 July 2017 (DOC 54 2584/001). The work of this working group was limited to the remit of the House of Representatives. Its findings can be mainly executed at this level and transposed into legislative texts. 1. Transparency - Ethics 673. Article 163a, paragraph 1 of the Regulations of the House of Representatives stipulates that “each member of the House undertakes to comply with the Code of Conduct of the members of the House of Representatives, as appended to these Regulations.”610 The obligations set out in said Code (adopted in plenary meeting on 19 December 2013) should be circulated more effectively, and in particular its “general principles”. In particular, article 3 (“Members of the House may not use their position or their prerogatives for purposes other than those related to the exercise of their office. They may not present themselves, either in connection with or apart from their office, as a mediation service or as a complaints service”) and article 4 (“In connection with or apart from their actions in Parliament, and in their contact with citizens, groups and institutions, members of the House shall prioritise the general interest over special interests”). These requirements have been incorporated in the draft law amending the law of 6 January 2014 setting up a Federal Ethics Committee in order to include the Code of Conduct for Public Officials therein (DOC 54 2098/001). 2. Legislative procedure 674. The enquiry committee recommends that the Rules of Procedure of the House be amended so that an opinion on any amendment whose scope is other than purely technical is requested from the competent committee at the request of one third of the members present.

“For the purposes of this Code, actions performed on their behalf by their personal staff, employees of their political group or third parties acting on their behalf shall be deemed to be actions performed by Members of the House.” (Art. 1). 610

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675. From the point of view of processing legislative texts, the enquiry committee recommends that experts invited by an enquiry committee should issue a sworn statement of the interests they represent and in whose name they are speaking. 3. Lobbying 676. With regard to professional lobbyists, the House’s Political Renewal Working Group reached a consensus on the following three points: 1. The plan is to establish an effective (cost-effective) and practicable registry of lobbies, at least for the House of Representatives and the Senate. Several other European Union Member States already have such a system in place. The registry of lobbies is public, is published on a specific website and is managed by a department specifically designated for this task. Ideally we should use the same six categories as those used in the European Parliament. In the case of a company/institution/organization, in addition to the personal contact information of the lobbyist in question, the lobbies register contains their: • • • • • • • •

Name Legal form Head office address Telephone number Email address Company number Corporate object The names of the clients that are represented by this company/institution/organization

Parliament will evaluate the operation of the lobbies register each year and publish its findings and recommendations. 2. The plan is to create a code of conduct for lobbyists. Signing the lobbies register will automatically constitute acceptance of the Code of Conduct. With regard to the content of this code, we could draw on best practice developed abroad. The Code of Conduct will provide for a complaint and sanction procedure applicable in the event of non-compliance with its provisions.

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If changes are made to the Code of Conduct, a new signature of the lobbies register will be required. Parliament will evaluate the Code of Conduct each year and publish its findings and recommendations. 3. A feasibility study was conducted on the introduction of the section on lobbying. The idea of the lobbying section is that the authors of a proposal or draft law should mention, in the introduction or the arguments, the organizations they consulted when drafting their text (the “legislative footprint”). 677. The enquiry committee welcomed finding no. 14 of the Political Renewal Working Group of 18 July 2017 (see DOC No. 54 2584/001, p. 9), which partially implements Recommendation No. 673 above by organizing information sessions on parliamentary ethics, after new members take the oath, but also on a regular basis during the parliamentary term. The enquiry committee asked the House of Representatives to begin these briefings as soon as possible. 4. Expert hearings - invited guests 678. Speakers interviewed by the committee in the course of a review of a given legislative initiative who believe they have to varying degrees influenced - for a fee or free of charge - an earlier legislative initiative taken in the same field, must inform the chairman of the committee accordingly in writing beforehand. If a guest speaker is paid for attending parliament, he or she must report the person or organization that is paying him or her. The House departments will inform the speakers of this requirement when they invite them. 679. The enquiry committee welcomed recommendation no. 13 of the Political Renewal Working Group of 18 July 2017 (see DOC 54 2584/001, p. 9) requesting, for each parliamentary hearing, that speakers should clearly indicate (1) whether they are or have been involved in the legislation in question in any other capacity and (2) whether they are being paid for their contribution to the hearing and if so, by which body. The enquiry committee calls on Parliament to adopt as soon as possible draft law DOC 54 2818/001 implementing this conclusion.

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PART II A SETTING UP THE TEAM OF LAWYERS OF MR PATOKH CHODIEV’S LEGAL TEAM ON BEHALF OF THE ELYSÉE 1. Preliminary remark 680. The parliamentary enquiry committee has done everything possible to interview certain important witnesses in order to obtain information on the role they may have played in the drafting of the law on the extended plea bargain and its application to the case involving Messrs Patokh Chodiev, Alijan Ibragimov, Alexander Machkevitch et al. 681. However, the powers of an enquiry committee are not the same as those of the courts611, especially where it concerns foreign witnesses. Foreign witnesses can respond to the invitation of a parliamentary enquiry committee but are under no obligation to do so. More specifically, the penalties against any person who fails to respond to an invitation from a parliamentary enquiry committee, as provided for in paragraph 8 of article 8 of the law of 3 May 1880 on parliamentary investigations, can be difficult to apply.612 Thus, Maitre Catherine Degoul and her former colleague Mr Eric Lambert, former French Senator Aymeri de Montesquiou, former Elysée adviser Jean-François Etienne des Rosaies and former member of the Elysée diplomatic unit Damien Loras did not appear before the enquiry committee. These absences were due to a variety of reasons:

At the time of this work, the parliamentary enquiry committee tasked with investigating the circumstances that led to the Sabena bankruptcy, identifying the responsible parties, if any, and making recommendations for the future examined the option of performing certain investigative duties abroad. These possibilities were rather limited and required a demonstration of goodwill on the part of the foreign authority: See the “Sabena” report of the parliamentary enquiry committee, Doc. House, DOC 50 1514/003, p. 27 e.s. 612 "Any person summoned to be interviewed as a witness will be required to appear and to fulfil the summons, on pain of a prison sentence of between eight days and six months and a fine of between five hundred and ten thousand euros". It is stated that "the provisions of Book 1 of the Belgian Penal Code, without exception of Chapter VII and of article 85, are applicable" 611

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— Ms Catherine Degoul was invited on a number of occasions by email and by letter (18 April 2017, 4 May 2017 and 16 October 2017). A reply was received by email on 4 May 2017 from her former lawyer Maître Joel Blumenkranz: “I am forwarding immediately the invitation you have sent me for Ms Catherine Degoul. However, I must inform you, for the information of the enquiry committee, that I have not been the lawyer of Ms Degoul for several months, and she has not informed me that she has appointed another lawyer, she has resigned from the Bar and she no longer responds to telephone calls. I have therefore sent the invitation to her email addresses but cannot guarantee that she will receive it.” — Mr Eric Lambert was invited by letter on 25 September 2017. The enquiry committee did not receive a reply. — Mr Aymeri de Montesquiou was invited by letter on 18 April 2017. Master Alexandre Varaut, Mr Aymeri de Montesquiou’s lawyer, replied to the committee by letter on 25 April 2017: “Mr de Montesquiou is keeping the information he may be required to produce for the French judge handling this case, in strict accordance with criminal procedure.” — Mr Jean-François Etienne des Rosaies was invited on 14 April 2017 and 24 May 2017. Following this, in a telephone conversation with Mr Etienne des Rosaies’ lawyer, Mr Pierre Kopp, he indicated that his client has serious health problems and that he also was keeping the information he has at his disposal for the French judge. The enquiry committee did not receive any written replies. — Mr Damien Loras currently resides in Brazil, and the parliamentary enquiry committee was unable to obtain his exact contact details. No invitation could therefore be sent. 682. The Belgian lawyers for Messrs Patokh Chodiev, Alijan Ibragimov, Alexandre Machkevitch and et al., Véronique Laurent, Dirk Libotte, Jean-François Tossens and Jonathan Biermann appeared, but invoked their professional secrecy obligations613.

613 Interview of Ms Veronique Laurent and Mr Jean-François Tossens, 18 July 2017, CRIV 54 K056, p. 1; Interview of Mr Dirk Libotte, 5 July

2017, CRIV 54 K047, p. 1; Interview of Mr Jonathan Biermann, 5 July 2017, CRIV 54 K048, p. 1.

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683. Mr Armand De Decker appeared and invoked his professional secrecy obligation and his right of silence by virtue of the last paragraph of article 8 of the 3 May 1880 law on parliamentary investigations.614 684. For health reasons, Mr Patokh Chodiev testified by videoconference from the Belgian Embassy in Moscow on Wednesday 8 November 2017, in camera at his request. Following his introductory statement, he asserted his right to refuse to testify under the last paragraph of article 8 of the 3 May 1880 law on parliamentary investigations. 2. Background 685. Mr Claude Guéant, former Secretary-General of the Office of the President of the French Republic, told the enquiry committee that the Kazakh President had suggested, in the run-up to the State visit of October 2009, that it would be good for the trading relationship between Kazakhstan and France if the prosecution of Mr Patokh Chodiev in Belgium were interrupted or stopped: “What I can say and can repeat, as I have already said it, is that in 2009, from memory even before the President of the Republic went to Kazakhstan, we had been told that it would make things easier if we find a way to a positive judicial perspective.(...). In this instance it related to contracts with state-owned businesses. To my knowledge, ‘discussions involved trade agreements between these companies and the Kazakh government, concerning observation satellites, helicopters and railway equipment.’615 On this matter, Mr Claude Guéant then told the enquiry committee: “If I remember correctly, the first I heard of this matter was in the autumn of 2009, when President Sarkozy was preparing a trip to Kazakhstan. Damien Loras, the diplomatic adviser who monitored this region of the world, asked me whether it was possible to find a competent lawyer who would be interested in working on this case, and was of course registered with the Brussels Bar. He had mentioned it - because they knew each other, they were working in the same building - to Jean-François Étienne des Rosaies, who told him “I know someone, Maître Degoul.” He asked me if it was possible. I told him: “I do not know Maître Degoul at all. If she is up to the job and you think she would be interested, why not?” There you go. So that it was normal - since the first contact had been made under the aegis of the diplomatic unit of the Office of the President of the Republic - it was quite normal for me to follow up, not as Minister of the Interior, but as former Secretary-General.”616

614 Interview of Mr Armand De Decker, 7 July 2017, CRIV 54 K050, p. 2. 615 Interview of Mr Claude Guéant, 3 May 2017, CRIV 54 K025, p. 10. 616 Ibid., p. 4.

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At his interview Mr Claude Guéant also said on this matter: “In simple terms we were kept informed, that is true, because it was of interest to us, but it was clear that our role was limited to suggesting to Mr Chodiev a lawyer who seemed to us to have the qualities needed to best defend his interests. That’s it.”617. He has added: “(...), I confirm that there has been no initiative from France to amend Belgian legislation. I can say that categorically.”618. According to Mr Claude Guéant, Ms Catherine Degoul became the "team leader" of Mr Patokh Chodiev's legal team and Mr Etienne des Rosaies also began monitoring the case from that moment onward. Officially, Mr. Etienne des Rosaies was an adviser to the Elysée on equestrian matters. Mr. Claude Guéant said, about the manner in which Mr. Etienne des Rosaies filed his reports: “Next, it is perfectly normal for a lawyer responsible for a case who was suggested by the team whose names I recalled earlier, to report regularly, since there are French interests in this case. Lastly, the fact that I was kept informed is because the people working at the Elysée - there were 40 to 45 at the time - filed regular memo reports on the progress of the cases, because I only saw them rarely. It was one memo out of the dozens that I might receive each day. But lastly, I have to say that I don’t see anything abnormal or unusual about giving out information about events that are in the public domain because they are in the press.”619... “He was an experienced civil servant, not at all a loose cannon. As I pointed out earlier, he filed a lot of reports because he considered it his duty to do so, including things that were not of interest and things that were in the public domain.”620

617 Ibid., p. 19.

618 Ibid., p. 16. See also p. 12. 619 Ibid., p. 8.

620 Ibid., p. 26.

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686. Mr Jean-Pierre Mazery, Grand Chancellor of the Order of Malta from 2005 to 2014, of which Mr Etienne des Rosaies was diplomatic adviser for France for 4 or 5 years, said of him: “People like prefect des Rosaies are capable people, accustomed to working undercover and in all possible environments. He is someone who is very much “hands on,” if I can put it that way, always willing to travel and to do things, very inventive, with strong people skills, since he has helped me in several cases that were both complex and technical.”621 Mr Jean-Pierre Mazery also stated the following: “He is someone who has many strings to his bow but who has a strong need for recognition, a very strong need for recognition and for social status. So every time he is involved in a case, he tends to claim all the credit and say: “I am in control of everything.” Sometimes this gets rather irritating for the parties who are really in control, but sometimes it suits us too. He overdoes it and at some point people are getting annoyed with him.”622. As to whether Mr Etienne des Rosaies could “go so far as to write falsehoods in order to win praise”, Mr Jean-Pierre Mazery replied: “That’s it exactly! What you are saying is exactly what happens! That is why I say it is irritating because he really goes too far sometimes”623. 687. During his interview, Mr Stefaan De Clerck was asked about the content of the various documents that were allegedly prepared by Mr Jean-François Etienne des Rosaies while he was monitoring the case of Mr Patokh Chodiev et al. The following items in particular were submitted to Mr De Clerck: Ms Catherine Degoul allegedly drafted the plea bargain law at the request of the Minister of Justice; the Minister of Justice allegedly dropped three charges against Mr Chodiev; Mr De Decker allegedly received backing from the Ministers of Justice, Finance and Foreign Affairs for an amendment of the plea bargain law. Mr Stefaan De Clerck said these allegations were false and completely far-fetched, and that they did not correspond to the reality at all.624

621 Ibid.

622 Interview of Mr Jean-Pierre Mazery, 7 July 2017, CRIV 54 K050, p. 7. 623 Ibid

624 Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 11 and 12.

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688. When asked about the interest for France, Mr Claude Guéant told the enquiry committee: “the interest for France was to maintain a relationship of trust with Kazakhstan that might lead to substantial trade agreements for us. That is all, it is very clear.”625 689. During his interview, Mr Claude Guéant confirmed that the setting up of the team of lawyers around Mr Patokh Chodiev and the subsequent granting of a plea bargain in favour of Mr Patokh Chodiev to facilitate trade relations between France and Kazakhstan: The “team" is the legal team that I was referring to earlier, headed up Ms. Catherine Degoul. This team included Maître De Decker and other lawyers, also Belgian. They did do a good job, because through the plea bargain they managed to put a stop to the proceedings that had been ongoing for the last ten or twelve years, in the so-called Tractebel case, I believe. It is true that that suited France. Why? Because the President of Kazakhstan, Mr Nazarbayev, had indicated that he would be happy to see the prosecution of Mr Chodiev interrupted or even stopped, and that this could only help any trading relationship we may have with that country.”626 He added: “I see nothing untoward about a lawyer using a legislative provision in his client’s interest.” ... “I found that the fact of managing to obtain a plea bargain rather than letting the proceedings run on was in France’s interest, as this took the heat off the legal situation of Mr Chodiev and his friends. That much is indisputable. It is a factual observation, an objective observation.” 690. The state visit of French President Nicolas Sarkozy to Kazakhstan took place on 5 and 6 October 2009. The satellite contract was signed during this visit.627

625 Interview of Mr Claude Guéant, 3 May 2017, CRIV 54 K025, p. 8, 9 and 13. 626 Ibid., p. 4.

627 https://www.senat.fr/rap/l12-219/l12-2191.pdf.

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691. According to information given to the enquiry committee, the legal team working for Mr Patokh Chodiev was reportedly bolstered by the addition of Mr Armand De Decker at the end of 2010. 692. Belgium also had diplomatic relations with Kazakhstan during the same period. Foreign Minister Steven Vanackere first contacted his Kazakh counterpart in January 2010, in Brussels.628 A trade mission involving SAR Prince Philippe took place in Kazakhstan from 11 to 15 October 2010.629 The former Minister of Foreign Affairs took part in the first day of the mission. Mr Steven Vanackere was asked about this subject by the enquiry committee. He said: “Mr Chodiev and his problems were not mentioned on this occasion. Generally speaking, I knew nothing of any approach by Kazakh diplomats that would have been undertaken concerning this with regard to Belgian diplomats.”630 Mr Noursoultan Nazarbayev, President of Kazakhstan, made an official visit to Belgium on 25 and 26 October 2010. It was thus that the President met with the King and Prime Minister Yves Leterme.631 When asked whether he had received a request from the President of Kazakhstan or his relatives, Mr Yves Leterme replied as follows: “Never. During this period and later on, I met twice with President Nazarbayev, once during a State visit and the second time at the OSCE summit on 2 December 2010. During these two conversations, we never talked about Chodiev or anything else about him. I remember our first conversation particularly well. This topic was never discussed at this time.”632 693. During a state visit to France by the Kazakh president on 27 October 2010, a Memorandum of Understanding (MoU) was signed on the sale of helicopters. This agreement

Interview of Mr Claude Guéant, 3 May 2017, CRIV 54 K025, p. 8, 9 and 13. Ibid., p. 4. 627 https://www.senat.fr/rap/l12-219/l12-2191.pdf. 628 Letter of 4 April 2017 to the PEC from the Minister of Foreign Affairs, Didier Reynders. 629 https://diplomatie.belgium.be/sites/default/files/ downloads/110606_JVSL2010BZ_NLWEB.pdf. 630 Interview of Mr Steven Vanackere, 10 July 2017, CRIV 54 K051, p. 3. 631 https://diplomatie.belgium.be/sites/default/files/ downloads/110606_JVSL2010BZ_NLWEB.pdf (p. 31 and letter from Mr Didier Reynders of 4 April 2017) with an overview of the visits to Kazakhstan and Belgium. 632 Interview of Mr Yves Leterme, 12 July 2017, CIV 54 K053, p. 5. 625 626

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was non-binding, but truly represented a first step toward a definitive contract.633 694. On October 16, 2010, Mr Didier Reynders, already a member of a very large number of folkloreoriented “orders”, was crowned Mousquetaire d'Armagnac, in the Brussels arm of this order, alongside Mr Melchior Wathelet senior, Princess Léa of Belgium and about fifteen other persons. The ceremony was held at the Brussels Town Hall, hosted by the Mayor at the time, Mr Freddy Thielemans, who was already a member of the order. The captain of the order of Mousquetaires d'Armagnac was Mr Aymeri de Montesquiou. At his interview Mr Didier Reynders said that he had had no contact with him on the “Patokh Chodiev et al.” case 634. 695. The committee questioned Mr Didier Reynders about a telephone call that allegedly took place between himself and Mr Claude Guéant. This telephone call would have put Ms Catherine Degoul in contact with Mr Armand De Decker. Mr Didier Reynders told the committee: "(...), I can confirm that at no time has there been any contact between Mr Guéant and myself. I had no involvement whatsoever in Mr De Decker’s appointment, as I answered the first question just now, that I had no knowledge whatsoever of this situation. I must tell you, moreover, that Mr Guéant has never been my counterpart. Never, not in any position. But as I have already said, I was not involved in such contact or decision. I was totally unaware of the existence of a link between Mr De Decker and this case.”635 Mr Claude Guéant was asked at his interview whether there had been any contact between the Elysée and Belgian political leaders concerning the case of Mr Patokh Chodiev et al., and between himself and Mr Reynders or Belgian political leaders636. He replied: “I can tell you quite categorically that I have not had any contact with any member of the Belgian Government and that, although I cannot be 100% sure, I am almost certain that no one in the general secretariat of the president’s office has had any contact with members of the Belgian government, other than for very basic reasons in connection with the organization of government work. This type of contact with a foreign government is always handled via the foreign affairs channel.”637. With regard to Mr Didier Reynders, he said: “To be quite honest, during this period, I never heard the slightest indication that Mr Reynders was remotely involved in this case. Never! I can say that categorically”638. He added: “I never spoke to Mr Reynders on the phone during this period. I believe that I have never actually spoken to him on the phone, ever”639.

https://kz.ambafrance.org/Visite-officielle-du-President. Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, p. 9 as well as the official webpage of Mr Reynders. 635 Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, p. 13. 636 Interview of Mr Claude Guéant, 3 May 2017, CRIV 54 K025, p. 5. 637 Ibid., p. 7. 638 Ibid., p. 5. 639 Ibid., p. 11. 633 634

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3. Contacts between Mr. Armand De Decker and State Security 696. It emerged from the information provided to the enquiry committee that, on 23 and 24 February 2011, Mr Alain Winants, Deputy Head of State Security, consulted the record compiled by Security on Mr Eric Van de Weghe. Mr Eric Van de Weghe is a business contact of Mr Alijan Ibragimov. In total there were four consultations on these two days. Mr Alain Winants told the enquiry committee that he had not been informed in advance that Mr De Decker might be going to Paris and that he had not asked him to search for information on Mr Van de Weghe.640 697. At the end of February 2011, Mr Armand De Decker had lunch in Paris with Mr Claude Guéant, Mr Damien Loras, Mr Jean-François Etienne des Rosaies and Ms Catherine Degoul. The progress of the Chodiev et al. case was the first item on the agenda.641 Mr Claude Guéant made the following statement to the enquiry committee on the matter: “During this meeting, I think I remember that - it was after all a few years ago - two topics were inevitably coming up, albeit briefly. The first was the case presented by Ms Degoul. We also mentioned, other than small talk, for example the fact that Uccle, a city of which Mr De Decker was and is I believe still the mayor, was twinned with Neuilly-sur-Seine, of which Mr Sarkozy had been mayor.

640 641

Interview of Mr Alain Winants, 7 June 2017, CRIV 54 K038, p. 1-2. Interview of Mr Claude Guéant, 3 May 2017, CRIV 54 K025, p. 2.

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We also mentioned the difficult case of a French national who had been detained in Mexico for several years, in our view on totally unacceptable grounds, namely Ms Florence Cassez, because it had been suggested that Ms Cassez could have been extradited to Belgium rather than to France, as she had relatives living in Belgium.”... “Absolutely! For that, yes, of course. Nor did I claim that the main purpose of the meeting was to discuss the situation of Ms Florence Cassez. I clearly indicated that this meeting was scheduled between Ms Degoul and Mr De Decker, and our team consisting of Messrs Etienne des Rosaies and Damien Loras, and that they had suggested that I meet him out of courtesy to a leading Belgian personality.” Mr Claude Guéant also told the enquiry committee that he had had no contact with Belgian politicians in connection with this case: “I am telling you that I have not had any contact with any member of the Belgian Government and that, although I cannot be 100% sure, I am almost certain that no one in the general secretariat of the President’s office has had any contact with members of the Belgian government, other than for very basic reasons in connection with the organization of government work”642. 698. According to information provided to the enquiry committee, Mr Armand De Decker visited the French domestic intelligence department, DCRI, in late February/early March 2011, as Vice-President of the Senate and as “President of the Belgian Parliamentary Delegation for Intelligence.” In this capacity he was met by one of the assistants of the national intelligence coordinator, Mr Mancini. In addition to general considerations, the message conveyed by Mr De Decker was that Belgian State Security would like to collaborate with the DCRI in connection with Mr Eric Van de Weghe. According to the former head of Belgian State Security, Mr Alain Winants, Mr Armand De Decker was not speaking on behalf of Belgian State Security at the time.643

642 643

Ibid., p. 2, 7 and 28. Interview of Mr Alain Winants, 7 June 2017, CRIV 54 K038, p. 17.

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699. On March 4, 2011, Mr Armand De Decker informed the deputy head of State Security, Mr Alain Winants, that he had lost his mobile phone in Paris. Mr De Decker asked State Security to recover the lost mobile phone. Mr Winants took note of this request. That day, the deputy head of State Security, Mr Alain Winants, ordered his department to trace Mr De Decker's mobile using a special intelligence tracking method (MRD). The MRD committee644 suspended the tracking method due to there being insufficient grounds.645 700. It emerged from the information forwarded to the committee that on 9 March 2011, Mr Alijan Ibragimov consulted his new lawyer, Maître Véronique Laurent, about his trial for the first time. With his new lawyer appointed, Mr Ibragimov left the Elysée’s legal team. Mr Ibragimov decided to drop the legal team of Mr Patokh Chodiev et al. because he thought it made more sense to use a Belgian lawyer for a trial in Belgium. Maître Véronique Laurent was recommended to him by Mr Eric Van de Weghe, who was also working with this lawyer at the time. 701. It is clear from the information forwarded to the committee that on 10 March 2011, Maître Véronique Laurent contacted the legal team of Maître Catherine Degoul et al. to propose setting up a collaboration. However, this legal team decided not to collaborate with Maître Véronique Laurent. 702. Several members of the committee questioned Mr Claude Guéant, former Minister of the French Republic, about an email that Mr des Rosaies had sent Mr Loras on 14 March 2011, querying the fact that Mr Ibragimov wished to drop the legal team of Mr Chodiev et al. and choose his own lawyer. This email refers to a “Form V”, which Mr De Decker allegedly produced during his interview with the Elysée in late February. According to this email, this form V was presented in connection with a request from Mr De Decker to the French intelligence service to collaborate with Belgian State Security in connection with Mr Eric Van de Weghe. According to the information forwarded to the committee, State Security uses the word “form” to describe a summary of the status of a case. At his interview, the former deputy head of Belgian State Security, Mr Alain Winants, disputed having ever sent Mr De Decker such a form: “Again, I never sent Mr De Decker any documents, not even a form.”646

Administrative Committee responsible for monitoring special intelligence methods. See Standing Committee R 2011 Activity Report, page 68. 645 Interview of Mr Alain Winants, 7 June 2017, CRIV 54 K038, p. 3. 646 Ibid. 644

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703. According to information transmitted to the enquiry committee, on 1 April 2011 Mr Alain Winants requested that an investigation be carried out into the “Kazakh Trio”. On the same day, he was still consulting Mr Eric Van de Weghe's form. 704. On 8 April 2011, State Security received information that the French domestic intelligence department had been contacted by the Elysée asking why it had not collaborated with Belgian State Security in connection with Mr Eric Van de Weghe. 647 705. According to information provided to the enquiry committee, Belgian State Security learnt on 11 April 2011 that Mr Armand De Decker had visited the French domestic intelligence department, DCRI, as Vice-President of the Senate and as “President of the Belgian Parliamentary Delegation for Intelligence.” In this capacity he was met by one of the assistants of the national intelligence coordinator. Other than certain general considerations, the message conveyed by Mr De Decker appeared to be that Belgian State Security wished to collaborate with the DCRI in connection with Mr Eric Van de Weghe. The deputy head of State Security, Mr Alain Winants, considered that the internal email contained nothing that justified invoking article 29 of the Belgian Criminal Investigation Code whereby any official who becomes aware of a crime or offence in the exercise of his duties is required to report it to the public prosecutor.648

647 648

Interview of Mr Alain Winants, 7 June 2017, CRIV 54 K038, p. 5. Ibid. p. 17-18.

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PART III. APPLICATION OF THE “THE EXTENDED PLEA BARGAIN” LAW UNTIL THE COMING INTO FORCE OF THE RESTORATIVE LAW OF 11 JULY 2011 In Part III, the PEC examined the extended plea bargain concluded by the Antwerp public prosecutor's office and the Brussels public prosecutor's office in the “Société Générale - scrl Belgimont” and “Mr Patokh Chodiev et al.” court cases before the entry into force of the amending law “amending articles 216a and 216b of the Belgian Criminal Investigation Code and article 7 of the Law of 6 June 2010 introducing the Social Criminal Code.” I. — FINDINGS 1. General guidelines for the implementation of the extended plea bargain as part of the preparation and entry into force of the Law of 14 April 2011 706. On May 2, 2011, the Minister of Justice, Mr Stefaan De Clerck, sent the Panel of public prosecutors a letter in which he advised that the provisions concerning the extended plea bargain had in the meantime been inserted in article 84 of the miscellaneous provisions law of 14 April 2011 (subsequently published in the Moniteur Belge of 6 May 2011). The Minister indicated that following a debate in the Senate Justice Committee, several comments of a technical nature had been made, and that a draft law had been tabled by various senators in response to them. In light of this information, the Minister told the Panel: “For it to work correctly, the provisions must come into force simultaneously and we should wait before applying the provisions contained in the miscellaneous provisions law until the amending law has also been published. The time between the publication of the two laws is usually short. May I ask you to issue guidelines on this?”. (translation) The Minister also stated that he wished to review the new provisions relating to the extended plea bargain during the meeting already scheduled for 12 and 14 May 2011.

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The Minister stated in this regard that during the parliamentary work, it was pointed out that the new legislation should be accompanied by binding directives from the Minister of Justice and the Panel. (on this matter see the report issued on behalf of the Justice Committee, Doc. The Senate, 2010-2011, n° 5869/4, p. 3, 20). The Minister also noted that he wished to ensure transparency.649 707. On 10 May 2001 - i.e., after the publication of the law of 14 April 2011 in the Moniteur Belge Mr Patrick De Wolf, general counsel at the Brussels Court of Appeal, received an email from the secretariat of Mr Marc de le Court, public prosecutor, stating as follows: “We received a letter dated 2 May 2011. There is a meeting of the Panel chaired by the Minister of Justice on 12 and 14 May. Quid?” In response to this email, Mr Patrick De Wolf wrote a detailed memo - dated 12 May 2011 - for the attention of Mr Marc de le Court, public prosecutor at the Brussels Court of Appeal, in which he pointed out that there had already been a first application (almost finalized) of the law (this was the “Chodiev et al.” case – see below) in which the sum of over 20 million euros may be paid to the Belgian State in June 2011.650 On 12 May 2011, Mr Patrick De Wolf, General Counsel at the Brussels Court of Appeal, sent the following message to the public prosecutor, Mr Marc de le Court: “It is essential that we be able to finalize this plea bargain procedure as soon as possible.. .. All the conditions have been met. In this instance Chodiev -, there is no time to wait for a circular.”651 708. From May 12 to 14, 2011, the planned consultation between Justice Minister Stefaan De Clerck and the Panel of public prosecutors was held in Kortrijk. On 13 May 2011, a meeting “of the Panel of public prosecutors, the Counsel of the Public Prosecutor and the Counsel of the labour magistrates” was held “under the chairmanship of the Minister of Justice.”

Letter of 27 March 2017 from Mr Stefaan De Clerck to the enquiry committee: Letter of 2 May 2011 from the Minister of Justice to the Panel of public prosecutors. 650 Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045. 651 Interview of Mr Patrick De Wolf, 29 June 2017, CRIV 54 K046, p. 63. 649

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The minutes of this meeting mentioned the following: “Discussion F. Schins652 refers to the Minister's letter of 2 May 2011. He inquired about the progress of the amending law. The Minister informed the Panel that the amending law had been passed by the Senate and the House Committee. As soon as the opinion of the Council of State was requested, the dossier was held up. Pending the adoption of this amending law, the application of the extended plea bargain constitutes a stumbling block. He claimed to be not yet using this option, but that he was already preparing a circular. The Antwerp public prosecutor is responsible for this. Decision The Antwerp public prosecutor drafted two circulars on the extended plea bargain: the first to inform the public prosecutors’ offices and audit offices that they should refrain from using the new options before the entry into force of the amending law, and the second concerning the extended plea bargain itself.” (translation) It was therefore apparent from the minutes of that meeting that the Panel decided that it was appropriate to refrain from concluding extended plea bargains before the amending law had also entered into force. It appears that no exceptions to this principle were mentioned. No specific cases were mentioned.653 709. On 15 May 2011, Mr Jo Baret, head of the strategy unit of the Minister of Justice, wrote an internal monitoring report on the agreements concluded with the Panel, reflected in the report as follows:

Mr Frank Schins, at the time public prosecutor at the Ghent Court of Appeal, used to chair the Panel of public prosecutors. Letter from Mr Ignacio de la Serna, president of the Panel of public prosecutors of 19 May 2017: Extract from the minutes of the meeting of 13 May 2011 of the Panel of public prosecutors. 652 653

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“— Came into force after publication of the amending law. Antwerp PP draws up directive — Uniform and transparent application: - slow implementation; - working group under the direction of Antwerp drafts a directive; • feedback to Hildegard [Penne; personal addition]; • Possibility of using the SPC [Criminal Policy Service; Personal addition].”. 710. On 18 May 2011, the Brussels public prosecutor's office published a circular (circular by Mr Marc de le Court, public prosecutor at the Court of Appeal and the employment tribunal, sent to the Public Prosecutor and the labour magistrate), as follows: “I wish to draw your attention to the fact that the miscellaneous provisions law of 14 April 2011 was published in the Moniteur Belge on Friday, 6 May 2011, on pages 26576 et seq. Article 84 of this law amends article 216a of the Belgian Criminal Investigation Code to allow for the extended plea bargain, even after public prosecution has commenced and until a final ruling has been handed down (pages 26591 to 26593). An amending law had already been passed in the Senate and forwarded to the House on 1 April 2011 (DOC 53 1344/001). However, during the discussions in the House plenary meeting on Thursday, 12 May 2011, the opinion of the Council of State was requested. Insofar as the scope of application of the cases in which the extended plea bargain could be proposed is reduced in the amending law, applying this new article 216a CIC and proposing plea bargains before the amending law has been published in the Moniteur Belge, and a circular from the Panel of public prosecutors has laid down the procedures specific to the application of this provision, is not currently recommended. If, however in very exceptional circumstances you feel that you have to offer such a deal, you should send me a detailed report explaining these particular circumstances and requesting my prior agreement.”

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711. On 24 May 2011, a circular followed from the Antwerp public prosecutor's office (Circular No. 3/2011 by Mr Yves Liégeois, public prosecutor at the court of appeal and the employment tribunal, Ref. C 41/3-1, sent to the Public Prosecutor and the labour magistrate, set out as follows: “I wish to draw your attention to the fact that the miscellaneous provisions law of 14 April 2011 was published in the Moniteur Belge on Friday, 6 May 2011, on pages 26576 et seq. Article 84 of this law amends article 216a of the Belgian Criminal Investigation Code to allow for the extended plea bargain, even after public prosecution has commenced and until a final ruling has been handed down (pages 26591 to 26593). An amending law had already been passed in the Senate and forwarded to the House of Representatives on 1 April 2011 (DOC 53 1344/001). However, during the discussions in the House plenary meeting on Thursday, 12 May 2011, the opinion of the Council of State was requested. Insofar as the scope of application of the cases in which the extended plea bargain could be proposed is reduced in the amending law, applying this new article 216a CIC and proposing plea bargains before the amending law has been published in the Moniteur Belge, and a circular from the Panel of public prosecutors has laid down the procedures specific to the application of this provision, is not currently recommended. If, however in very exceptional circumstances you feel that you have to offer such a deal, you should send me a detailed report explaining these particular circumstances and requesting my prior agreement.” Mr Christiaan Nys (at the time a tax substitute (substitut fiscal) at the Antwerp Public Prosecutor’s Office and responsible for the “Société Générale - Belgimont scrl” case, see below) said that this circular had been drafted by Mr Flor De Mond (at the time the first general counsel) and Mr Yves Liégeois (public prosecutor). Mr Christiaan Nys was also consulted in connection with the drafting of this circular.654 712. During the interview of Messrs Frank Schins, Yves Liégeois, Marc de le Court and Claude Michaux, Mr Frank Schins and Mr Yves Liégeois indicated that the option provided for in the circulars of the 18th and 24th May 2011 of nevertheless applying the extended plea bargain law “in exceptional circumstances” was not dictated by the desire to be able to close only a few specific cases (in this instance the cases involving Patokh Chodiev et al. and the Société Générale - Belgimont scrl case).

654

Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042.

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This circular was mainly intended to ensure that the public prosecutor knew to which cases under his jurisdiction the new law had been applied so that he could also rule on those cases in full knowledge of the facts655. 713. During the interview of Mr Frank Schins, Mr Yves Liégeois, Mr Marc de le Court and Mr Claude Michaux (respectively, during the first half of 2011, the President and members of the Panel of public prosecutors), Mr Frank Schins declared that these circulars were not in contradiction with the minister’s “recommendation” or “wish” that the extended plea bargain should not be applied before the adoption of the amending law, and even less in contradiction with the decision of the Panel of public prosecutors to not apply the extended plea bargain yet.656 They also pointed out that the law was in force and that the Panel of public prosecutors was not in itself qualified to issue a negative injunction in order to compel the public prosecutor to not enforce the law. They also pointed out that the minister cannot give any “orders” on this matter. Mr Yves Liégeois also added the following to his statement: “At this point, no. The problem arose when the first law was passed, the miscellaneous provisions law of 14 April 2011. At that time we were faced with a law that we knew was coming into force. We knew in advance that it was going to be published, that’s quite normal, although the minister could also have decided, with the agreement of everyone, to request that it not be published. It was published on 6 May and came into force on 16 May. So, at the time this legislation was passed, in late March, in early April, we knew that it was coming. It was dated 14 April 2011 and published on 6 May 2011.”657

Interviews of Mr Frank Schins, Mr Yves Liégeois, Mr Marc de le Court and Claude Michaux, June 21, 2017, CRIV 54 K043, p. 9 and 11. 656 Interviews of Mr Frank Schins, Mr Yves Liégeois, Mr Marc de le Court and Mr Claude Michaux, 21 June 2017, CRIV 54 K043, p. 13. 657 Interview of Mr Yves Liégeois, 21 March 2017, CRIV 54 K043, p. 14. 655

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714. On 26 May 2011, Mr Frank Schins, president of the Panel of public prosecutors, wrote to the Minister of Justice. “I have learnt from both my colleague in Brussels and from the Ecofin section of the Antwerp Public Prosecutor’s Office that serious negotiations - which are specifically within the scope of the new article 216a of the Belgian Criminal Investigation Code - are currently in their final phase. It would be particularly deplorable and indeed unjustifiable - given the crisis in which the country is at present - that millions of euros are lost to the Belgian Treasury because negotiations must be stopped or suspended due to the slow pace of political decision-making. I therefore believe that I can agree with the views of my colleague from Brussels and AntwerpLimburg, that the option of entering into an extended plea bargain has not been entirely ruled out but must be specifically justified and subject to the consent of the public prosecutor's office.” (translation)658 Mr Frank Schins said he did not know exactly which cases were involved. He recalled only that he had been notified that there were “one or two cases, which were urgent and needed to be wound up as they were at risk of being time-barred and overrunning reasonable time limits, etc.” 659. 715. On 27 May 2011, Mr Frank Schins (in his capacity as president of the Panel) sent a letter to the Minister stating that the extended plea bargain law will not actually be applied other than in exceptional circumstances: “Dear Minister, Referring to your letter of 2 May 2011 concerning the “extended plea bargain”, I am able provide you with the following information.

Letter of 27 March 2017 from Mr Stefaan De Clerck to the enquiry committee: letter of 26 May 2011 from Mr Frank Schins, former president of the Panel of public prosecutors to Mr Stefaan De Clerck, former Minister of Justice. 659 Interviews of Mr Frank Schins, Mr Yves Liégeois, Mr Marc de le Court and Mr Claude Michaux, 21 June 2017, CRIV 54 K043. 658

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The parliamentary review of the draft law in question has been somewhat shambolic. In short, it seems to me that the situation at present is as follows: 1. Article 84 of the miscellaneous provisions Law of 14 April 2011, Moniteur Belge, 6 May 2011; changes to article 216a of the Belgian Criminal Investigation Code. Since no specific date has clearly been set for the entry into force of this law, it has become applicable in the meantime. 2. The Senate has made some technical adjustments, which should be published in a so-called "amending" law. However, on 12 May 2011 the plenary meeting of the House decided that it should seek the advice of the Council of State on the matter (time limit: 1 month). In your letter, you asked the Panel of public prosecutors to give instructions to wait for the publication of the amending law before applying the new law: please find appended hereto the circular that will be circulated in each jurisdiction. In the meantime, I can inform you that the draft guidelines of the Panel of public prosecutors on the extended plea bargain are being finalized and that this text provides all the guarantees of transparency. As for adopting a wait-and-see attitude until the amending law also comes into force, I feel I should draw your attention to the following information. I have learnt from both my colleague in Brussels and from the Ecofin section of the Antwerp Public Prosecutor’s Office that serious negotiations - which are specifically within the scope of the new article 216a of the Belgian Criminal Investigation Code - are currently in their final phase. It would be particularly deplorable and indeed unjustifiable - given the crisis in which the country is at present - that millions of euros are lost to the Belgian Treasury because negotiations must be stopped or suspended due to the slow pace of political decision-making. I therefore believe that I can agree with the views of my colleague from Brussels and AntwerpLimburg, that the option of entering into an extended plea bargain has not been entirely ruled out but must be specifically justified and submitted to the public prosecutor's office for approval.” (translation)

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With regard to this letter, Mr Stefaan De Clerck stated the following: “Fifteen days later, I did receive a letter from the president of the Panel of public prosecutors. He told me that the Panel was taking my directive into account, but that it was allowing for an exception: In your letter, you asked the Panel of public prosecutors to give instructions to wait for the publication of the amending law before applying the new law. Please find appended hereto the circular, such as it will be circulated in each jurisdiction”. He therefore confirmed what I had asked for - but with a sting in the tail - as he specified at the end of his letter: “As for adopting a wait-and-see attitude until the amending law also comes into force, I feel I should draw your attention to the following fact. That would be particularly deplorable. I therefore believe that I can agree with the views of my colleague from Brussels and Antwerp-Limburg, that the option of entering into an extended plea bargain has not been entirely ruled out but must be specifically justified and submitted to the public prosecutor's office for approval.” This letter was sent at the end of May 2011. I did not respond, but I was not kept informed of the progress of any such case either. Nor was I subsequently informed of the decisions that were taken. I was told that in highly exceptional circumstances, there was a procedure or method for doing something other than what I had asked them.”660. (translation) On 14 June 2011, Mr Patrick De Wolf sent an email to Ms Paule Somers, Magistrate and deputy office head at the office of the Minister of Justice, informing her that: “... It is almost certain that if the plea bargain is not finalized before the end of this month, the E.B. risks losing around 20 million euros... That would be a real shame... It is a financial case (forgery, money laundering, criminal conspiracy). The facts go back a very long time (1996, 1997,... and one in 2004).”661

660 661

Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054. Documentation sent by M. Patrick De Wolf during his interview on 28 June 2017.

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Mr Stefaan De Clerck told the enquiry committee: “I am not aware of this email; I do not have it to hand. Nor do I know when Mr De Wolf took other measures.”662(translation) 716. On 30 June 2011, the House adopted the following text: “§ 1st. If the public prosecutor considers that the offence does not seem to require to be punished by a primary custodial sentence of more than two years or a heavier sentence, including confiscation if appropriate, and it does not involve serious bodily harm, he may suggest to the perpetrator that he pay a set sum of money to the Finance SPF.” This text had already been adopted by the Senate, on 31 March 2011. The purpose of this legislation was (in particular) to “remedy” the imperfections of the version contained in the law of 14 April 2011. In particular, it remedied the problem raised by the three experts during the hearing held before the Senate Justice Committee on 22 March 2011, namely that the proposed amendment to Article 216a paragraph 1 of the Belgian Criminal Investigation Code was not in conformity with article 80 of the Penal Code as this article stipulates that after punishing a crime by the admission of mitigating circumstances, a prison sentence of at least one month must always be imposed. For example, this is the case for forgery and falsification of documents, which means that a deal was not possible in numerous criminal financial and tax cases, while amendment No 18 tabled at the Finance and Budget Committee in the House of Representatives on 2 March 2011 was intended to apply to these crimes punishable by imprisonment.” Although the justification of the amendment states that “Concerning the ratione materiae, scope of application, we rely on the existing mechanism of article 216a of the Belgian Criminal Investigation Code, for which there is also a general scope of application. However, it is necessary to extend this scope so that crimes that have always been punished, such as forgery and the falsification of documents, may also be the subject of a plea bargain”663. The text of the extended plea bargain law of 14 April 2011 did not provide for this extension of the scope of application.

Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 26. Amendment n°18 to the draft miscellaneous provisions law, Doc House n° 53-1208/007, p. 29 and also pp. 23 and 30; idem for the draft law amending the Belgian Criminal Investigation Code with regard to the ending of prosecution on payment of a sum of money, DOC 53 1252/001, p. 12 and also pp. 5 and 14; idem for the draft legislation amending Article 216a of the Belgian Criminal Investigation Code concerning the ending of prosecution on payment of a sum of money, P. 13 and also pp. 4 and 16. 662 663

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This Law of 11 July 2011 amending Articles 216a and 216b of the Belgian Criminal Investigation Code and Article 7 of the Law of 6 June 2010 introducing the Belgian Corporate Criminal Code was published in the Moniteur Belge, 1 August 2011. 2. The extended plea bargain concluded in the Société Générale - Belgimont scrl case 2.1. Tax section 717. The facts - that led to criminal prosecution - related to fraud committed via cash companies. In essence, this type of fraud involves transferring shares in companies that have tax debts and whose assets consist exclusively or mainly of “cash”. The transferee (who is in fact the fraudster) uses the company’s cash to finance this transfer (as well as his “personal fee”). Once this is done, there is only one insolvent company that is unable to pay the established tax debts. 718. The Special Tax Inspectorate (ISI) has - for the 1998 to 2001 taxation years included - set corporate tax contributions for the various types of cash company. As has already been pointed out, the very purpose of the cash company fraud is that the taxes owed cannot be recovered from the real taxpayer, precisely because this fraud automatically results in the insolvency of the company involved. To better organize collection, a special national collection unit for cash companies (hereinafter referred to as the “Cash Companies” unit) was set up within the Finance FPS.

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719. The enquiry committee learned that the “Cash Companies” Unit believes that the French financial institution Société Générale played an important role in setting up fraudulent cash companies. For this reason, in 2004, 2005 and 2006, various (civil) liability cases were initiated with the aim of obtaining compensation from the companies involved that belonged to the Société Générale group. 720. The enquiry committee found that Société Générale’s lawyer had contacted the Belgian Council of State at the end of 2005 to discuss whether it would be possible to come to an agreement on all the ongoing cases. 721. The negotiations that ensued finally resulted on 6 June 2007 in an agreement in principle, mainly aimed at forcing Société Générale to pay a sum in compensation equivalent to the amount of tax evaded by the cash companies. 722. A more detailed agreement was subsequently drawn up on the basis of this agreement in principle. This took the form of an initial deal dated 26 May 2009, requiring Société Générale to pay 27 million euros, subject however to a number of conditions precedent. This was a civil transaction between the Belgian State (Finance SPF) and the financial institution to compensate for the loss for the Belgian State of the possibility of collecting payment of the tax and associated debts of the (insolvent) cash companies. This deal was not, in itself, related to the plea bargain. 723. On 19 June 2009 the Finance FPS sent a letter to the investigating judge informing him of the existence and content of the deal concluded. On this matter the letter stated that the agreement involved compensation of the loss to the Treasury and listed the (cash) companies involved. 724. On 14 January 2010, the Finance FPS sent another letter to the investigating judge informing him that the conditions precedent set had already been fulfilled for two of the cases covered by the above deal of 26 May 2009.

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725. On 16 May 2011, ten days after the Moniteur Belge published the miscellaneous provisions law of 14 April 2011, the provisions relating to the extended plea bargain came into force. 726. On 19 May 2011, the Finance FPS sent one final letter to the investigating judge informing him that all the conditions precedent had now been fulfilled. At that time, negotiations were already under way between the lawyers of the financial institution and the public prosecutor's office regarding the terms of a possible suspension/deal (see below). 727. A second deal was concluded on 10 June 2011 (i.e. the same day as the plea bargain was offered to the financial institutions) for 4.5 million euros. This second deal involved the settlement of a few cases that had already been cited in connection with the first deal and on which negotiations had been underway since 2009, but for which the real extent of the losses had not yet been confirmed. 728. A copy of this second deal was sent to Mr Christiaan Nys (at the time a substitute tax specialist with the Antwerp public prosecutor's office). 729. The amounts due under these deals were duly settled by Société Générale according to a phased payment plan that began in 2010. However, Mr Christiaan Nys stated on this matter that 27(.9) million euros had already been frozen since 2009 and that an additional amount (following the second deal) of 4.5 million euros was still outstanding.664 2.2. Restrictive section 730. The criminal case record (known as notice number TU27.98 1 00740/02) - which relates to offences covering the period 1996-2001 - was opened following a report dated 24 September 2001 prepared by the financial information processing Unit. 731. On 18 July 2002, the Brussels public prosecutor's office sent the dossier to the Turnhout public prosecutor's office.

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732. The prosecution trial application was dated 1 October 2002665. The case was handled by investigating judge Ferdinand Lammens. 733. On 21 October 2004, Société Générale - scrl Belgimont (i.e. the legal entities prosecuted) and Mr François Meunier filed an adhesion procedure (plainte avec constitution de partie civile) with the investigating judge in Turnhout, Mr Marc De Munck. The complaint was directed at Mr Lodewijk Willaerts who, according to the complainants, played a key role in setting up the fraudulent structures.666. 734. Between 2005 and 2008, there was clearly not much happening in the criminal case. On this matter, Mr Christiaan Nys said that the investigation appeared to grind to a halt in 2005.667 735. On 31 March 2009, the investigating judge forwarded the dossier for the first time.668 In so doing, the investigating judge indicated that the investigation could - as far as he was concerned - be considered to be closed. 736. In 2009 as well, the dossier was transferred to the Antwerp public prosecutor's office to be dealt with by specialized substitutes (in tax matters). During the interviews, it was stated that this transfer resulted from the lack of relevant experience within the Turnhout prosecutor's office of this kind of fraud (in particular, the statement of Mr Yves Liégeois of 21 June 2017). The then prosecutor of Turnhout, Mr Jan Poels, allegedly thus requested in the autumn of 2009 that the case be dealt with by one of the specialized tax substitutes or the magistrates of the financial departments at the Antwerp public prosecutor's office669. As a result, at the end of November 2009 the file landed on the desk of Mr Christiaan Nys, at the time a tax substitute at the Antwerp public prosecutor's office.

Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. Interviews of Mr Marc De Munck, 14 June 2017, CRIV 54 K042 and of Mr Yves Liégeois, 21 June 2017, CRIV 54 K043. 666 Interview of Mr Marc De Munck, 14 June 2017, CRIV 54 K042. 667 Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. 668 Interview of Mr Marc De Munck, 14 June 2017, CRIV 54 K042. 669 Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. 664 665

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According to Mr Christiaan Nys, the case was transferred because the Turnhout magistrates were not really familiar with subject670. On this matter Mr Flor De Mond said that, in general, both the officers responsible for identifying offences and police departments, as well as investigating judges and prosecuting magistrates had inadequate knowledge of tax matters. He confirmed that this was why the Turnhout prosecutor's office requested that the case be transferred to the Antwerp public prosecutor's office, which had three specialized magistrates at the time671. 737. During 2010, a number of additional investigative duties were requested, and additional 24 apostilles were prepared to complete the administrative file and several forms relating to the prosecution of persons abroad were also added to the file.672 The additional duty of inquiry requested by the public prosecutor on January 28, 2010 included a request for the agreements between the SPF Finance and Société Générale to be forwarded673. 738. On 29 March 2010, a second release order (“soit-communiqué”) was issued. 739. On 17 May 2010, the final indictment was drafted.674 In this indictment, the public prosecutor requested that all suspects be referred to the trial court, and therefore even the legal entities prosecuted (Société Générale and Belgimont scrl)675. According to the final indictment, the legal entities Société Générale and Belgimont scrl were charged with the following offences: A: involvement in decisions within a criminal organization; B: forgery and falsification of private documents; E: embezzlement; G: forgery and falsification of tax documents; H: breaches of tax legislation (inaccurate tax returns, non-payment of tax due); I: misuse of company funds to pay for the cash company's shares, or arranging their purchase. (see finding no. 751 below).

Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. Interview of Mr Flor De Mond, 14 June 2017, CRIV 54 K042. 672 Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. 673 Interview of Mr Marc De Munck, 14 June 2017, CRIV 54 K042. 674 See, however, Mr Yves Liégois' statement: the final indictment dated from 27 May 2010. See statement by Mr Marc De Munck, who claimed that the final indictment dated from 17 May 2010. 675 Interview of Mr Marc De Munck, 14 June 2017, CRIV 54 K042. 670 671

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Mr Christiaan Nys stated that this indictment had exclusively mentioned the main charges “given the urgency and the fact that there was clearly a risk of overrunning reasonable time limits.”676 “On 15 May 2010, after being duly stamped, my final indictment was signed. It was a 61-page document, but I had already indicated in my letter of 18 January 2010 that my indictment would contain only the most essential charges, given the urgency and the fact that there was a clear risk of overrunning reasonable time limits.” (.) “The court sitting in chambers found that the reasonable time limit had been exceeded. The indictment chamber found that the reasonable time limit had been exceeded (.) And the trial judge noted that the reasonable time limit had been exceeded. The Court of Appeal found that the time limit had been exceeded. It wasn’t me: they were the sitting magistrates.” 740. Several parties requested additional investigative duties with a view to having the court sitting in chambers review the case. In total, seven requests of this type were lodged. Mr Christiaan Nys objected only to the duty of further investigation requested by Société Générale and Belgimont scrl.677 678 741. The legal entities prosecuted (Société Générale and Belgimont scrl) appealed against the rejection of their request for further investigations. The indictment chamber upheld the position of the investigating judge on 30 December 2010679. 742. In February 2011, Mr Christiaan Nys was first contacted (by telephone) by the lawyers of Société Générale and Belgimont scrl, who asked him to schedule a consultation. On the basis of this request, the Antwerp public prosecutor's office decided to start discussions. In this context, Mr Christiaan Nys stated that during these discussions, it had in particular been discussed whether a suspension in court sitting in chambers* was possible and negotiable.

Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042, pp. 2 and 25. Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. 678 This further investigative duty concerned actions relating to the adhesion procedures filed by Société Générale against Mr Lodewijk Willaerts and ‘against X’ (party unknown), whom the financial institution accused of misusing its name to set up cash company structures. 679 Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. 676 677

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To this end, a preliminary consultation took place between Messrs Christiaan Nys and Jan Poels, Ms Inge Claes (former prosecutor and substitute at the prosecutor's office of the Court Of First Instance of Turnhout), the public prosecutor's office and Mr Herman Dams680. *The suspension of sentencing is, like the suspended sentence, a probationary suspension and a probationary stay, regulated by the law of 29 June 1964 concerning suspension, suspended sentences and probation (hereinafter the probation law). The suspension of sentencing (hereinafter: suspension) is not a penalty. It is favour that is ultimately granted at the judge's discretion. The text below gives an overview of the legislative framework for suspension such as it existed in 2011. Prior to granting a suspension, the court sitting in chambers performed a dual check: one on previous convictions, the other on the penalty to be imposed. First it checked whether the accused has not previously been sentenced to a criminal penalty or a custodial sentence of more than six months, and second, whether the offence in question should not in practice be sanctioned by a custodial sentence of five years or more (article 3, paragraph 1 of the probation law). The court sitting in chambers may only grant a suspension if “the publicity given to the proceedings could prejudice the accused or compromise his rehabilitation” (article 3, paragraph 2 of the probation law). The suspension implies that there has been a decision on the merits of the case and that the charges have been proven (article 3, paragraph 1 of the probation law). If the suspension is not revoked, the prosecution is definitively terminated (article 3, paragraph 5 of the probation law). The suspension shall be accompanied by the awarding of costs and possibly compensation (article 6, paragraph 2 of the probation law). In addition, a specific confiscation could be imposed on written request by the prosecutor's office (article 6, paragraph 2 of the probation law). In 2011, this confiscation was always voluntary and depended on the prosecution. In that case, the prosecutor's office had to inform interested parties so that they could assert their rights at the hearing (article 5bof the preliminary Title of the Belgian Criminal Procedure Code). If a civil action had also been brought, the court sitting in chambers which ordered the suspension should also rule on that action (article 6, paragraph 3 of the probation law).

680

Ibid.

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The hearing is still held in camera, but if the court sitting in chambers orders the suspension, it does so in a public hearing (article 6, paragraph 1 of the probation law). The suspension is entered on the criminal record of the accused (article 590, 2, of the Belgian Criminal Investigation Code). In theory the suspension is not visible if certain administrative authorities are granted access to the criminal record by Royal Decree (article 594 of the Belgian Criminal Investigation Code) or if a person requests an excerpt from the criminal record (certificate of good conduct, life and morals) (article 595 of the Belgian Criminal Investigation Code). 743. With regard to the opportunity to begin discussions effectively, Mr Christiaan Nys stated during the interviews that it would certainly be justified to take action against Société Générale as well, given the key role that this bank clearly played in the matter681. However, the prosecutor's office nevertheless acceded to the request of the counsels of Société Générale and Belgimont scrl to sit down together and review the options for a suspension by the court sitting in chambers. On this matter, Mr Christiaan Nys stressed in particular during the interviews: • that the investigation seems to have effectively ground to a halt in 2005, leading to fears that the defence was invoking the exceeding of a reasonable time limit; • that the investigation was incomplete on many points (Mr Christiaan Nys refers to the fact that directors who were Mr Lodewijk Willaerts’ line managers were not interviewed) and that, given the threat of time barring for some of the persons being prosecuted (other than the financial institution itself, Société Générale), it was no longer possible to remedy this (because the final indictment had to be drafted as quickly as possible); • that ultimately, the legal entities could only be punished by fines682. Mr Flor De Mond also referred to “the passing of time” and “the fact that the judicial enquiry had not yet been fully completed and even had certain shortcomings,” and to “the fact that tax agreements had clearly been concluded by Société Générale, which is highly unusual in this field”683.(translation).

Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042, p. 2, which refers to a letter sent to Mr Jan Poels, prosecutor in Turnhout at the time. 682 Ibid., p. 3. 683 Interview of Mr Flor De Mond, 14 June 2017, CRIV 54 K042. 684 Interview of Mr Yves Liégeois, 21 March 2017, CRIV 54 K043. 681

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Mr Yves Liégeois made a similar statement. He described Société Générale's case as a textbook case in which the reasonable time limit had been exceeded and would be again. He then stated that it was clear that the case had “gaps” (Mr Yves Liégeois was referring to the fact that the bank's management were never interviewed) and that - in the course of subsequent criminal proceedings - there were fears of “major procedural battles” (translation). Mr Yves Liégeois also referred to the problem of time barring684. However, it was clear from the hearings that there was no risk of time barring as far as Société Générale was concerned. Mr Christiaan Nys said on this matter: “For Société Générale, time barring was not an issue. There was no risk of time barring in this case.”685. 744. Subsequently, on 9 March 2011 at 2.30pm, a first meeting took place at the Antwerp courthouse between the prosecution and the counsels of Société Générale and Belgimont scrl686. 745. Mr Christiaan Nys said that he had “just” learned that the law on the extended plea bargain would “suddenly” be put back on Parliament’s agenda. Mr Christiaan Nys said on this matter: • “He wrote on 12 April 2011: “A settlement as part of a future extended plea bargain is of course also possible.” That was in the email that I sent my colleague Inge Claes. We had received signals from the Public Prosecutor’s Office, which was close to the source, that an extended plea bargain could be an option.”687 (translation); • “Just two days later, the draft law or bill was adopted. Before that, there had been a whole legislative process, which the public prosecutor - who was very close to the source, with Yves Liégeois closely monitoring the parliamentary work - kept me informed as to whether the extension was certainly going to go ahead or not. It took only two days. But at the time it was a possibility. But I didn’t make a proposal on this until it was only a possibility, because we never know what may happen.”688 (translation);

Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042, p. 25 Ibid. 687 Ibid., p. 10. 688 Ibid., p. 12. 689 Ibid., p. 16. 685 686

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• “And I then learned that the issue would probably be debated by Parliament. I was also surprised by that. I wondered whether the diamond trade had backed this dossier anyway, but I had no indication or evidence either way.” (translation) Mr Christiaan Nys added that, in the light of this fact, the parties had “of course” thus mentioned the possibility of going ahead with a deal689. At the hearing, Mr Christiaan Nys also stated on this matter that as soon as he learned that the possibility of concluding a plea bargain was on Parliament's workbench, he even preferred this option rather than a suspension because with a suspension the bank would get off relatively lightly.690 Mr Christiaan Nys was particularly keen that under a plea bargain, the bank would repay the tax loss in full and hand over all the fees that were paid. With a plea bargain, according to Mr Christiaan Nys the legal entity could therefore be hit harder than by a suspension by the Court sitting in chambers.691 Mr Christiaan Nys also indicated that with a plea bargain (and unlike in the case of a suspension), confiscation cannot be ordered (or enforced), such that confiscation can still and always be required at the expense of other persons being prosecuted.

On that date, article 6, paragraph 2, of the Law of 29 June 1964 concerning suspension, suspended sentences and probation provided that special confiscation could be ordered on written request from the public prosecutor. This action did not automatically result therefore in a special confiscation when the suspension was granted. In addition, unlike with a plea bargain, a suspension could also be granted even if the injured parties had not been compensated. It should also be stressed that the transfer of pecuniary gains as provided for in article 216a CIC does not include confiscation from a strictly legal point of view, even if the effect is the same (J. Rozie and P. WAETERINCKX, “Actualia verbeurdverklaring (2010-2015): alles stroomt, niet is blijvend’, NC 2015/5, 391, No. 6). From a strictly legal point of view, it was not possible to then file an appeal in relation to combining the decision with a possible confiscation, which, without going into the details of the options on offer at the time, would have allowed the judge to remedy any unjust situations, if necessary. 691 Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. 690

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Mr Christiaan Nys also stated that exploring the options for an extended plea bargain was “also requested by the bank” and that “the bank also found this option extremely attractive” (translation). Mr Christiaan Nys saw no problem in the fact of anticipating a future law while negotiations were ongoing692. On this matter, in response to the question of when the plea bargain had been discussed, he said: “If I remember correctly it was when the law was adopted in April 2011. This law was then published in May 2011. However, as soon as a law has been adopted, we know that it will be published. One can then change tack, safe in the knowledge that it is going to be implemented.”693 (translation) Before the enquiry committee, Mr Yves Liégeois said the following on this matter: “Can we think about a future law? Why not? Such things happen frequently. To ensure effective legal management we must therefore take into account what has happened, what is happening now and what may yet happen in the future. As far as I am concerned, a magistrate who doesn’t want to hear anything, buries his head in the sand and doesn’t want to know what the future may bring is not a good magistrate. Nor would he be a good manager, because it is also important to keep abreast of changes as society evolves. In other words, the prosecutor's office did not even hold any impromptu discussions beforehand. By the time we were consulted, and we learnt that a debate was ongoing, the law was in force. In fact, we got everything we wanted legally speaking, through a law that was already in force.”694 (translation) 746. On 4 April 2011, Mr Marc De Munck signed the third and final release order695. 747. On April 12, 2011, Mr Christiaan Nys sent his colleague, Inge Claes, substitute at the prosecutor’s office of the Court of First Instance in Turnhout, an email drafted as follows: “As of this morning, we are done

Ibid. Ibid. 694 Interview of Mr. Yves Liégeois, 21 June 2017, CRIV 54 K044, p. 26. 695 Interview of Mr. Marc De Munck, 14 June 2017, CRIV 54 K042. 692 693

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with Société Générale (in terms of figures therefore). This suggest in practical terms that, over and above a tax settlement payable by Société Générale, the confiscation of at least 7.5 million euros will have to be ordered. A settlement as part of a future extended plea bargain is also an option, of course. In any case, the amounts have been set.” (translation) On this matter, Mr Christiaan Nys stated that a plea bargain seemed more logical to him if a confiscation could not be ordered (or enforced) under that arrangement (unlike what happens in the event of a suspension), although confiscation could still be ordered against the other persons being prosecuted. According to Mr Christiaan Nys, everyone agreed that it made sense to settle the case through an extended plea bargain: “I did not offer a deal, it was the bank that requested it. We have taken this into account and I have been working with Mr Poels on this subject. Consultation was also held on this matter with Ms Claes, who was handling the case at Turnhout. There was a consultation with the public prosecutor's office and with Herman Dams. Everyone thought it made sense: “We should grab this opportunity because if we really can’t order a custodial sentence in a financial case, financially speaking it is a very good deal for the Belgian State.”696. Mr Christiaan Nys also told the enquiry committee: “During all these years, I have never offered a plea bargain myself. It was the defence that requested it, so I was able to negotiate from a position of strength each time. I was never the requesting party. You can ask all the lawyers in Antwerp and Brussels about this; I have never offered it to anyone.”697 (translation). In light of this information, the tax authorities were asked to calculate the amount of tax evaded through cash companies. 748. According to Mr Christiaan Nys' statement, it was also agreed orally with the public prosecutor's office, which had clearly decided that there was no reason to let it drag on any longer. The aim was to wrap up the case before the hearing scheduled for the court sitting in chambers on 17 June 2011698.

Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. Ibid., p. 14. 698 Ibid., p. 11-12. 696 697

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According to Mr Yves Liégeois, it is quite normal for everything to be settled in the run up to the hearing before the court sitting in chambers on 17 June 2011. It would even have been risky to wait any longer699. Mr Christiaan Nys said: “The June 2011 introductory hearing of the court sitting in chambers was set aside for setting the agenda. We were going to set the agenda there. The court sitting in chambers was not going to debate the plea bargain yet. (.) If there were problems to be resolved, they would emerge during the debate, which would still be ongoing six months later. No one raised any issues on this matter. We simply let the hearing of the court sitting in chambers run its course, until it was able to confirm the dropping of the prosecution. You asked me “were you very short for time”? Not really. Not only did the bank request it, but the taxman wanted the case to be wrapped up as well.”700 (translation) 749. On 31 May 2011, a letter was sent by fax to the public prosecutor at the Court of Appeal requesting authorization to enter into a plea bargain with Société Générale and Belgimont scrl. The following information was given in the factual justification: o the facts concern fraud via cash companies, which consists of various accusations that make up a complex set of charges; o the prosecutor proposes to bring these charges together under the title “CI 1” so that all the charges in the referral can be concluded. Several members of the committee asked Mr Christiaan Nys to provide further explanations of the link between his request to the public prosecutor asking him to authorise a plea bargain and the reference to “quite exceptional circumstances” (see above, findings no. 711) in circular no. 3/2011 dated 24 May 2011, which had already been drafted at that time. Mr Christiaan Nys said in response: “I saw no legal obstacle to the drafting of an agreement. The aim was to settle the case as quickly as possible. The case was brought before the court sitting in chambers and the interested parties were ready to pay the required amounts. When we can get what we asked, why wait six months or more?” He added:

699 700

Interview of Mr Yves Liégeois, 21 March 2017, CRIV 54 K043. Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042, p. 27.

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“The circulars allowed for an exception. We simply made use of this option.” When asked what exactly these exceptional circumstances might have been, Mr Christiaan Nys replied: “It is not me that you should be asking, but the public prosecutor, who allowed that exception.”701. Mr Yves Liégeois said that these were indeed “exceptional circumstances”. Mr Yves Liégeois also pointed out that the new law of 14 April 2011 fully allowed this procedural law to be applied quite legally in the “Société Générale - scrl Belgimont” case702. 750. On the same day, Mr Flor De Mond, the first general counsel at the time, answered as follows: “Regarding your fax of 31 May 2011 on the above topic, I am pleased to inform you that I give my consent to the working method you have suggested and to the proposal put forwarded”703. (translation) The fact that Mr Flor De Mond answered the same day was explained by Mr Christiaan Nys as follows: o “Mr Flor De Mond was already aware of the earlier discussions. He knew the situation.” o “He agreed in principle. (.) If I had not known beforehand that I was going to obtain an exception to the circular and that an agreement would be reached, I would not have conducted these negotiations (with Société Générale’s lawyers - Ed.)”. o “The public prosecutor was aware of the case and actually knew the terms of the plea bargain. Lastly, these had already been more or less decided in April, one month earlier.”704 (translation) 751. On 10 June 2011 Société Générale and scrl Belgimont were offer a plea bargain combining most of the charges under the heading “CI 1” (see findings no. 739 above), with the rest of the charges to be dismissed.

Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042, p. 13 Interview of Mr Yves Liégeois, 21 March 2017, CRIV 54 K043. 703 Ibid., p. 23. 704 Ibid., p. 17. 701 702

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However, the plea bargain requires that the legal entities being prosecuted must have made the following payments: • the full amount of tax evaded (through cash companies) calculated by the taxman within the context of the civil action (27.9 million euros plus 4.5 million euros); (see findings no. 729 above) • the sum of 7.7 million euros (7,614,376.21), i.e. the amount of fees received for setting up the cash companies (not necessarily by the bank itself); • a symbolic sum of 2,750 euros, i.e. the statutory minimum705. 752. Mr Christiaan Nys believed that he “certainly did not go easy” on the bank, which took a big hit financially. For each euro it earned (earnings estimated by Mr Christiaan Nys at 800,000 euros), the bank paid between 40 and 50 euros to the State706. Mr Christiaan Nys thought it quite normal that a symbolic sum of EUR 2,750 should still be charged in addition to the above amounts (tax debts and pecuniary gains) as according to circular 5/2011 of 24 October 2011 from the Antwerp public prosecutor, the relinquishing of pecuniary gains may be taken into account when setting the sum due707. Mr Flor De Mond concurred that in concluding a plea bargain, he “specifically took into account the tax debt itself and the relinquishing of pecuniary gains”. (translation) He described the sum to be paid (i.e. 2,750 euros) as “symbolic”. The main objective was to make reparation for the loss708. Mr Yves Liégeois also confirmed that the “symbolic sum of 2,750 euros” was quite normal, given that the loss was ultimately made good by the relinquishment of the pecuniary gains.

Article 648, paragraph 7, of the Belgian Companies Code, and Article 41a of the Belgian Penal Code stipulates that a onemonth custodial sentence (minimum penalty) = a 500 euro fine for the legal entity x 5.5 additional decimals = 2,750 euros. It is indeed the minimum penalty for legal entities. 706 Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. 707 Ibid. 708 Interview of Mr Flor De Mond, 14 June 2017, CRIV 54 K042. 705

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In this regard, Mr Yves Liégeois stressed that the plea bargain was the best “unhoped for” outcome possible and that on this issue it was absolutely not a matter of “class justice”709. The enquiry committee noted that the explanation of the amendment intended to extend the plea bargain indicated as follows: “However, the public prosecutor must set a sum that is proportional to the seriousness of the offence when drafting a plea bargain proposal. The objective cannot be to propose a symbolic sum in cases of serious fraud, for example.”710 753. The court sitting in chambers met on 17 June 2011, 6 December 2011, 13 December 2011 and 24 January 2012. The public prosecutor had already requested that the prosecution of Société Générale and Belgimont scrl be dropped, during the hearing on 17 June 2011711. 754. The referral order followed on 21 February 2012. The court sitting in chambers had already found that the reasonable time limit had been exceeded712. At the same time, the dropping of the prosecution (requested by the public prosecutor on 17 June and 6 December 2011) was noted by Société Générale and Belgimont scrl713. 755. A ruling by the Antwerp indictment chamber on 18 March 2013, issued following an order regulating the proceedings of the Antwerp court sitting in chambers on 21 February 2012, noted the following: — that the prosecution of certain of the accused had been dropped under the statute of limitations; — that most of the accused had been sent before the trial judge; — the reasonable time limit had passed.

Interview of Mr Yves Liégeois, 21 March 2017, CRIV 54 K043; similar: Interviews of Mr Frank Schins, Mr Yves Liégeois, Mr Marc de le Court and Mr Claude Michaux, 21 June 2017, CRIV 54 K043. 710 See p. 31 of the report of the Finance and Budget Committee on the discussion of the draft miscellaneous provisions law: http://www.lachambre.be/FLWB/pdf/53/1208/53K1208007.pdf. 711 Interview of Mr Marc De Munck, 14 June 2017, CRIV 54 K042. 712 Interview of Mr Christiaan Nys, 14 June 2017, CRIV 54 K042. 713 Ibid. 709

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756. The other parties concerned were effectively prosecuted and some of them were convicted. The Antwerp Court of Appeal did not issue a ruling until 2016. Following a ruling by the Court of Cassation in 2017, the case was definitively closed. 3. The extended plea bargain concluded in the case relating to Messrs Patokh Chodiev, Mr. Alexandre Machkevitch and Mr. Alijan Ibragimov and consorts 3.1. Tax section 757. During its work, the enquiry committee found that the ISI - following several press articles referring to the criminal investigation opened against Mr Patokh Chodiev - launched a tax investigation in 1998. Subsequent to this, the ISI asked (and was authorised) to consult the various criminal cases. At that time, the tax investigation concerned not only Mr Patokh Chodiev, but also Mr Alexander Machkevitch and Mr Alijan Ibragimov. 758. In 2002, the ISI believed that it had sufficient evidence to prove that for the 1997 tax year, Mr Patokh Chodiev had failed to declare an amount (BEF 750 million - EUR 18.59 million) of investment income (dividends from holding companies). An amount of tax payable was subsequently agreed with Mr Patokh Chodiev. The tax surcharge that was imposed was 20%. The decision was however subject to the condition that a prepayment would be made as a guarantee and that the amounts of income relating to subsequent years would be clarified. 759. In 2003, and again in 2005, additional tax agreements were concluded. Under these agreements, Mr Patokh Chodiev paid a total of 12,573,000 euros in tax for the tax years 1997 to 2003. Mr Alijan Ibragimov paid 8,440,000 euros and Mr Alexandre Machkevitch paid 3,439,000 euros. For the subsequent years there was no more taxable income, as the persons concerned had moved abroad and were no longer liable for personal income tax in Belgium. 760. The existence of these tax agreements, as well as the circumstances underlying the offences recorded, were reported to the public prosecutor's office. These reports were filed in both 2003 and 2004. However, the relevant parties faced no (further) prosecution for tax fraud.

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3.2. Criminal section 761. The criminal case numbered BR24/97/38/16 was initiated in 1996 following a report sent by CTIF to the Brussels public prosecutor's office on 24 June 1996.714 715 The “suspicious” transaction relates to the transfer of USD 2,750,000 from a London bank account to an account held with BBL, held in the name of Mr Alijan Ibragimov, and to the transfer of USD 1,000,000 from a Swiss bank account to an account held with BBL, held in the name of Ms Natalia Kajegueldina. The funds in these accounts were used to fund the purchase of four properties. Further investigation revealed that, as early as 1992, another property had been bought in the same way716. 762. The trial application was dated 22 November 1996717. The case was successively submitted to review by investigating judges Dominique de Haan (1996-1998), Françoise Roggen (1999-2001), Michel Claise (2001), Frédéric Lugentz (2002-June 2009) and Michel Claise again (July 2009-September 2009), ultimately ending up with Ms Laurence Heusghem718. 763. The investigating judges ordered numerous international letters rogatory (Switzerland: 21/01/1998, 15/04/1999, 02/08/1999, the Netherlands: 23/03/1998, 24/04/1998, 06/05/1998, Great Britain: 16/10/1998, 09/09/1999, Kazakhstan: 15/10/1998, Luxembourg: 11/11/1999, Jersey: 30/05/2001, 28/01/2002).

Interview of Mr Jean-Marc Meilleur, 27 July 2017, CRIV 54 K049. A second AML report resulted in the initiation of case no. 27/97/55/24. The case was initiated in July 2009 and closed with no further action in August 2009. The CTIF provided additional information on several occasions. This additional information was reviewed each time. On each occasion it was decided not to follow up the case (October 2009, February 2012, December 2013, January 2013, December 2014 and May 2016): See interview of Mr Jean-Marc Meir, July 7, 2017, CRIV 54 K049. 716 Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045. 717 Interview of Ms Mme Laurence Heusghem, 21 June 2017, CRIV 54 K044; Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047. 718 Interview of Ms Laurence Heusghem, 21 June 2017, CRIV 54 K044. 714 715

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According to Mr Patrick De Wolf, these investigations revealed the existence of a string of anonymous bank accounts, of shell companies established in tax havens and numerous transfers of considerable sums of money with no apparent justification.719 764. On 8 June 2001, Mr Patokh Chodiev, Mr Alijan Ibragimov and Mr Alexandre Machkevitch (in particular) were accused720. 765. On 12 June 2001, the investigating judge referred the case to the public prosecutor's office721. 766. On 25 January 2007, a final indictment was drafted for the first time, requesting the referral of the relevant parties to the trial court for the offences of “forgery, money laundering and criminal conspiracy”722. Between 12 June 2001 and 25 January 2007, it seems - on the basis of what can be inferred from the content of the criminal case - that other offences had been committed, mainly between 2002 to 2004. After that the level of activity seemed more limited. 767. In April 2007, the case was brought before the court sitting in chambers. The case was postponed four times723. 768. On 29 February 2008, a corrected final indictment was drafted. A significant difference with the first final indictment related (in particular) to the basic offence retained. On 28 June 2017, Mr Patrick De Wolf declared, without no further explanation, that in the first final indictment, it was tax fraud that was retained as the basic offence724, while in the final corrected indictment, it was “corruption” that was retained as the basic offence underlying the accusation of money laundering. 769. On 6 October 2008 (the day before the hearing before the court sitting in chambers), Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch filed a request for further investigations725.

Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045. Interview of Ms Laurence Heusghem, 21 June 2017, CRIV 54 K044. 721 Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047. 722 Ibid. 723 Ibid. 724 Money laundering is a major offence relating to illegal pecuniary gains derived from another offence, known as the “basic offence”. 725 Interview of Ms Laurence Heusghem, 21 June 2017, CRIV 54 K044; Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045. 719 720

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770. On 6 November 2008, the investigating judge Frédéric Lugentz dismissed the application726. 771. This decision was appealed. The ruling of 28 January 2009 upheld the decision of the investigating judge727. 772. The case then continued before the court sitting in chambers, for the first time on 5 February 2009, after which it was repeatedly postponed to 7 May 2009, 3 September 2009, 12 November 2009, 21 January 2010, 1 April 2010 and 10 June 2010. These delays were explained by the need to translate the numerous documents received in response to the letters rogatory728. 773. According to Mr Jean-François Godbille (general counsel at the public prosecutor's office of the Court of Appeal in Brussels), during a lunch with Mr Armand De Decker that took place between December 2010 and January 2011, he allegedly told him that he was a lawyer in a criminal case involving (among others) Mr Patokh Chodiev. Mr Jean-François Godbille explained that he met regularly with Mr Armand De Decker because they were friends729. 774. Several members of the committee questioned General Counsel Patrick De Wolf and Prosecutor General Marc de le Court with regard to the possibility of organising a meeting with Messrs Patrick De Wolf, Armand De Decker and Jonathan Biermann, which reportedly took place on 13 January 2011. This meeting was organised by Mr Marc de le Court. However, neither Mr Patrick De Wolf nor Mr Marc de le Court remember this meeting. Mr Patrick De Wolf said on this matter: "During hearings730, I was also told that he came to me on 13 January. I know nothing about that, or simply do not remember that date at all." M. Marc de le Court said on this matter: "For me, this chronology does not stack up. I did not see in the hearing minutes of the Court sitting in chambers any mention of the lawyer De Decker. I therefore think that when Mr Armand De Decker claims to have contacted my office well before the order of the Court sitting in chambers and the appeal court that was commencing proceedings, from the moment where there were appeals against this order, this allegation seems false to me. All I can say is that it was false.” (see observation no. 429 of Part II)731.

Ibid. Ibid. 728 Ibid. 729 Interview of Mr J-F Godbille, 18 July 2017, CRIV 54 K056, pp. 11, 12, 16, 21 and 24. 730 Editor: court hearings. 731 Interview of Mr Patrick De Wolf, 10 May 2017, CRIV 54 K030, p. 20., interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047, p. 12. 726 727

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775. At one point (and shortly before the hearing before the court sitting in chambers of 27 January 2011), the lawyers732 of the interested parties approached Mr Jean-Michel Verelst, at the time a substitute at the Brussels public prosecutor's office, asking him whether he would agree to a suspension of the verdict in the court sitting in chambers. The request for a suspension of the verdict by the court sitting in chambers was mainly motivated by the desire to avoid a highly publicised ‘trial by media’ taking place. In support of this request the lawyers pointed out that their clients were major shareholders of a company listed on the London Stock Exchange733. Mr Jean-Michel Verelst initially told the interested parties that he would not be able to agree to unconditionally accept a suspension by the court sitting in chambers. It was in particular the fact that no counsel was acting for Ms Natalia Kajegueldina, which prevented Mr Jean-Michel Verelst from agreeing to the suspension. It turned out that Ms Natalia Kajegueldina was the “ultimate beneficial owner” of two properties that had been seized in connection with the case - in total five properties had been seized and which Mr Verelst’s substitute intended to have confiscated. “I thought: look, we aren’t so good on certain aspects, but whatever happens I am not giving up on these two high-value properties, one of which had been valued at 1.7 million euros, and the other at 4.1 million euros. That was 5.8 million euros in total”. Before he could agree to this request for a suspension of the verdict, according to Mr Jean-Michel Verelst, he had to obtain said confiscation”734. With effect from 24 January 2011, Mr Jonathan Biermann acted as counsel for Ms Natalia Kajegueldina.

732 Initially, the legal team of Mr Patokh Chodiev et al. was as follows: French lawyer Maître Catherine Degoul and Belgian lawyers

Maître Jean-François Tossens, Maître Dirk Libotte and Maître Armand De Decker. Maître Jonathan Biermann then joined the team on 25 January 2011 as a lawyer for Ms Natalia Kajegueldina. Lastly, on 9 March 2011, Mr Alijan Ibragimov appointed Maître Véronique Laurent as his personal lawyer: See findings nos.792 and 794 below. 733 Interview of Mr Jean-Michel Verelst, 21 June 2017, CRIV 54 K044. 734 Interview of Mr Jean-Michel Verelst, 21 June 2017, CRIV 54 K044, p. 3

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At the time Mr Jonathan Biermann was an employee of Mr Armand De Decker in the Senate. He told the enquiry committee that he had got this job when Mr Armand De Decker was appointed president of the Senate, subsequent to his term as Minister for Development Cooperation. Mr Jonathan Biermann did some documentation work, wrote speeches and performed other tasks for all the formal duties of the president of the Senate. He was not involved in legislative work. He was employed at the Senate until April 2012. Invoking professional secrecy and as instructed by his ‘bâtonnier’ (head of the Bar), Mr Jonathan Biermann did not offer the enquiry committee an explanation of his role as Counsel for Ms Natalia Kajegueldina735. In view of the subsequent involvement of Mr Jonathan Biermann as counsel for Ms Natalia Kajegueldina, according to Mr Jean-Michel Verelst there was no longer an obstacle to the effective acceptance of a suspension by the court sitting in chambers. Mr Jean-Michel Verelst thus referred to the risk of time barring and exceeding the reasonable time limit. A letter to that effect was sent to the public prosecutor and a consultation was held with one of the general counsels. Mr Jean-Michel Verelst no longer recalls whether consulted with Mr Patrick De Wolf or with Mr Jean-François Godbille736. In any event, Mr Marc de le Court stated on this matter that the Brussels public prosecutor's office had effectively sent a letter to the public prosecutor's office on 25 January 2011, referring to the possibility of agreeing to a suspension of the verdict. The prosecutor's office pointed out that the trial judge might consider that there was insufficient evidence to obtain to a conviction, except for certain of the money laundering activities. General counsel Jean-François Godbille (in the absence of general counsel Patrick De Wolf) was not opposed to this solution737. 776. During subsequent hearings on January 20 and 27, 2011, an oral debate follows. During this debate, the prosecutor's office took its indictments and the floor was given to the defence738. At his interview Mr Jean-Michel Verelst said:

Interview of Mr Jonathan Biermann, 5 July 2017, CRIV 54 K048. Interview of Mr Jean-Michel Verelst, 21 June 2017, CRIV 54 K044. 737 Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047. 738 Interview of Ms Laurence Heusghem, 21 June 2017, CRIV 54 K044. 735 736

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“So, if the court sitting in chambers had agreed to this request from the defence, the case would have stopped there, with a confiscation of 5.8 million euros plus the court costs that would have been paid. That would have been the end of the Chodiev case.”739. 777. According to Mr Stefaan De Clerck, Minister of Justice, probably on Thursday 17 February 2011, Mr Armand De Decker met with Mr Stefaan De Clerck while they were at the plenary meeting. Mr Armand De Decker asked to see Mr Stefaan De Clerck about an urgent case, without specifying which740. Mr Stefaan De Clerck replied that he would only be able to examine this case the following weekend in Courtrai. Mr Armand De Decker confirmed that he had no problem with that and asked whether Sunday evening suited him.741 Mr Stefaan De Clerck told the enquiry committee: "When asked to see me, he did not mention that he wanted to see me in his capacity as a lawyer. That happened on a Thursday afternoon, during parliamentary question time in the House and in the Senate and I was coming and going. It was very busy. He told me he needed to see me urgently about a case, but did not specify which one”742. Mr Stefaan De Clerck then said: "If he had told me that it concerned an individual case or Chodiev, I would have told him immediately that I was not interested”743. Mr Stefaan De Clerck also said on this matter: "To my great surprise, he was accompanied on that evening by a French lawyer. He stated that he had started working as a lawyer again and that he had been consulted in connection with an ongoing court case, a fact of which I was of course unaware when he made this appointment. It turned out that it concerned the Chodiev case, which I knew nothing about at that time. Once it became clear that he wished to speak to me about an individual criminal case in respect of which he had been appointed, I made it clear to him that any intervention on my part was out of the question and that as Minister of Justice I could not and would not intervene in individual cases and that the Minister of Justice had only a right of positive injunction, i.e., the right to demand an investigation and prosecution in a case, and therefore certainly not the contrary.

Interview of Mr Jean-Michel Verelst, 21 June 2017, CRIV 54 K044, p. 5 Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 4. 741 Ibid., p. 2. 742 Ibid., p. 4. 743 Ibid., p. 8. 739 740

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The conversation gradually veered towards a possible coming legislative change, in particular an extension of the options under a plea bargain. Since I had no personal involvement in this case - it was not my case, I was not responsible for it - and I did not know how far it had progressed, to put an end to the conversation I told them that I would have to ask my office head Mr Jo Baret how the case was progressing. Indeed, a notification of which I did not know the details had been received a little earlier at the Council of Ministers. I also learned that the restricted ministerial committee had reached an agreement on this matter. I would like to point out that I was not present on this occasion.” (translation) For the rest, Mr Stefaan De Clerck again told the enquiry committee: "The case was with the public prosecutor's office. It was being processed. The case was therefore known to and being processed by the public prosecutor’s office. Giving explanations to the public prosecutor made no sense as he was already reviewing the case. I cannot say what happened at the prosecutor’s or the General Prosecutor’s offices. I would have contaminated them by telling them that there had been interference in the current proceedings, which is strictly prohibited. I also said that I would not do it and that I did not wish to intervene. I would like to add that we were emerging from a period during which the discussion on the separation of powers in the Fortis case had had a lot of fallout. I had joined the government because there had been a major discussion about whether it was the Prime Minister or the Minister of Justice who had been in contact with the Judiciary about a case. So we weren't going to go over that again. The separation of powers is obvious. I have not spoken to Yves Leterme again. I did not send him the information. I kept this for myself and never mentioned it to anyone. I wanted to ensure that this had no effect on anyone. That was my responsibility, and that was my choice. The request was unacceptable, and I would not and could not agree to it. Nor did I want to involve anyone else in this story.”744. (translation)

744

Ibid., p. 3.

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778. The Order of the court sitting in chambers was made on 18 February 2011. The request for a suspension of the verdict was not accepted, in spite of a simultaneous request from the public prosecutor. The prosecution brought against Ms Natalia Kajegueldina (who had never been charged by the investigating judge) was dismissed because the reasonable time limit had passed, and the infringement of her right to defence. In addition, the A1 charges (concerning the disputed USD 55 million) and the C1 charges (“criminal conspiracy”) were then dismissed in respect of all the accused because the reasonable time limit had passed. However, Mr Patokh Chodiev, Mr Alijan Ibragimov and Mr Alexander Machkevitch were referred to the trial court for the A2 charges (forgery and falsification of documents), C2 charges (criminal conspiracy with a view to committing crimes), B charges (money laundering) and D charges (criminal conspiracy with a view to committing crimes). With regard to time barring, the court sitting in chambers ruled that the most recent offence dated back to 10 September 2004 and that the limitation period was validly interrupted by the final indictment of the prosecutor's office dated 29 February 2008. However, the court sitting in chambers ruled that the reasonable period of time had indeed been exceeded745. 779. On 18 February 2011 the Brussels district court sitting in chambers decided to refer Messrs Patokh Chodiev, Alijan Ibragimov and Alexandre Machkevitch to the criminal court. According to Mr Patrick De Wolf, that morning, after the decision of the court sitting in chambers, Mr Armand De Decker turned up at his office without making an appointment. Mr Armand De Decker was wearing his gown and introduced himself as Mr Patokh Chodiev’s lawyer. He inquired as to the intentions of the prosecutor’s office now that his client had been referred to the criminal court. Mr Patrick De Wolf also referred to an imminent legislative change concerning the plea bargain. During his first testimony, Mr Patrick De Wolf told the enquiry committee on this matter: "As far as I remember, I also said that during my interview746. I believe that it was indeed me who said there might be a change. In any case, what is important is that we were working on obtaining a deferred sentence.

745 746

Interview of Ms Laurence Heusghem, 21 June 2017, CRIV 54 K044. Editorial Note: Criminal hearing.

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Even up until 9 March, the judge of first instance had agreed, in the court sitting in chambers, for the sentence to be deferred. But if there was still a possibility of a change on their side, we could still talk.”747 In his second testimony, Mr Patrick De Wolf said that in February 2011 he was totally unaware of the change to the draft plea bargain law at the political level. He said during his second testimony before the enquiry committee that if he mentioned any change, it concerned the 2008 proposal to extend the scope of application of the plea bargain, as provided for in the 2008-2009 action plan. On this matter he told the enquiry committee: "But in any event, I can categorically state that I was not aware of any developments at the political level in February”.748 Mr Patrick De Wolf stated that this was the first and the last time he met Mr Armand De Decker in his capacity as a lawyer in connection with the court case involving Mr Patokh Chodiev and his companions. The name of Mr Armand De Decker does not figure on any of the procedural documents to which the enquiry committee had access, except in a letter sent to him on 22 February 2011 by Prosecutor General Marc de le Court, informing him of the call from the public prosecutor's office against the order of the court sitting in chambers.749 780. Also on 18 February 2011, Mr Patrick De Wolf contacted Mr Jean-Michel Verelst and asked him to report to him on the order of the court sitting in chambers in the following terms: “Dear colleague, I hear that the court sitting in chambers has today issued an order in case BR27.97 3816/96 concerning CHODIEV Patokh et al.. This order apparently partially dismissed the charges and referred the defendants to the trial court. Would it be possible to obtain a copy of this order as a matter of urgency (by fax to 02 508 66 23) and, in a subsequent report, it would be possible to know the purpose of the indictments (written and verbal) taken and an opinion on the need to appeal against that decision?

Interview of Mr Patrick De Wolf, 10 May 2017, CRIV 54 K030, p. 20. Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045, p. 9. 749 Also see observation n° 431 above in Part II. 747 748

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Would it also be possible to obtain a copy of the findings that must have been filed in this case?”750 781. According to Minister Stefaan De Clerck’s staff, on 22 February 2011 Mr Armand De Decker turned up at the office of the Minister of Justice just before midday, accompanied by Ms Catherine Degoul. Mr Armand De Decker turned up at the reception without an appointment, introducing himself as Speaker of the Senate. Mr Jo Baret, head of the Minister of Justice’s office, received the two lawyers. When Mr Armand De Decker indicated that he had come to present him with a court case, office deputy head and magistrate Ms Paule Somers was called to the rescue. Mr Armand De Decker then explained that he was contacting them as lawyer for the Élysée, while Ms Catherine Degoul introduced herself as Mr Patokh Chodiev’s lawyer. The two lawyers requested the members of the office to intervene and to ensure that the Prosecutor's Office of Brussels would accept a plea bargain settlement in favour of their client, Mr Patokh Chodiev751. According to the information forwarded to the enquiry committee, at this meeting the lawyers Mr Armand De Decker and Ms Catherine Degoul made a connection between the case involving Mr Patokh Chodiev et al. and the commercial interests of France and Kazakhstan in connection with an "aerospace deal". At his interview with the enquiry committee, Mr Jo Baret said on this matter: "I remember that Ms Somers and I looked at each other with astonishment. We then immediately indicated that it was out of the question for the Minister of Justice to become involved in this type of business, that this issue was not within the remit of the minister and also that, by definition, the minister never interfered in individual court cases, and that they should contact the office of the prosecutor general of Brussels. I believe that they insisted, saying that they had already contacted the prosecutor’s office. In any event, they carried on insisting. I remember that at one point Mr Armand De Decker added that the Elysée regarded this as a matter of great importance: "I have to tell you that the Elysée is taking a close interest in this".

750 751

Documentation sent by M. Patrick De Wolf during his interview on 28 June 2017. Interview of Mr Jo Baret and Ms Paule Somers, 7 June 2017, CRIV 54 K038, p. 3.

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We then referred once again to the separation of powers and to the distinction between positive injunctions and negative injunctions, but I have to say that to be honest I have no idea why Mr Armand De Decker made this request. During my many years at the Ministry of Justice and its office I had never encountered an approach of this nature. I also remember thinking that he was a lawyer and that he should therefore know that this was impossible, but I also suspected that he was trying to impress his lawyer colleague. The meeting did not last long, And ended at that point.”.752 (translation) After Mr Armand De Decker and Ms Catherine Degoul visited the office of the Minister of Justice, Mr Jo Baret and Ms Paule Somers informed the Minister of this visit. Mr Stefaan De Clerck told the committee: "I had never told them about the approach made by Mr De Decker over the weekend. They told me about this visit immediately afterwards, and their position was that it was of course unthinkable that we take any action in connection with that case. They added somewhat scornfully that the approach had been made at the request of the Élysée and that Mr Armand De Decker was rather proud of having been asked by the Élysée to act on its behalf. Apparently, this is what he said to Ms Somers and Mr Baret. For us the incident was closed. No intervention or initiative resulted from these two meetings. I could not, of course, have taken action under any circumstances. No initiative was therefore taken. I never mentioned it to anyone. It was out of the question that I do anything in response to such an inappropriate and unacceptable proposal." (translation).”753 (...). To conclude, Mr Stefaan De Clerck said the following: "As far as the Élysée is concerned, the Chodiev case was certainly clearly presented. It seemed to me that he understood that this French lawyer had been appointed, inter alia, at the request of the Élysée. My understanding was that De Decker had been approached by Degoul. That is how understood it, that he was some sort of rather special lawyer tasked with liaising with Belgium. The way I see it, he was acting in the Chodiev case both on behalf of Degoul and with Degoul as Chodiev’s lawyer rather than as the Elysée’s lawyer.

752 753

Ibid., p. 3. Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 2-3.

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This was never actually confirmed in any way, but the Élysée was probably mentioned by Degoul, who was in one way or another handling a case of great importance to France.”754 “In my view, it was clearly contact made as a lawyer. I clearly understood that France had an interest in the case. Degoul was in charge and De Decker had been signed up for Degoul’s team.(...) As I see it, the interests of the French State were not the heart of the matter. It was a Belgian case, and it was a lawyer who came to talk about it. It was therefore a legal issue about a case that was being handled by the Belgian courts."755 782. Mr Marc de le Court, former public prosecutor at the Brussels Court of Appeal, told the enquiry committee that if he had known at the time that Mr Armand De Decker was acting on behalf of a foreign State, he would have intervened immediately: “So, when a lawyer came to me, saying or suggesting - we are still constructing hypotheses here - that he has been appointed by a foreign head of state, I immediately assailed him with questions as to why a foreign State or foreign Head of State would be interested in the case. And as I deduced from the explanations given to me that there was attempted interference by a foreign power in the Belgian decision-making process in this case, [the Belgian judicial decision-making process], rest assured that I immediately had a report sent by hand to the Head of State Security.”756 Mr Marc de le Court went of saying: “ It is therefore clear that if (which he did not) Mr De Decker had told me thus, in so far as a lawyer introduces himself or might introduce himself in connection with this case, saying that he is the counsel of a foreign head of state who has nothing to do with the case, it is still, and I apologize to the visited person, extremely curious and intriguing. (...) There is a provision somewhere in the Belgian Criminal Investigation Code (art. 29), which provides for this type of case. This case is provided for by law.”757 758 783. Further to Mr Patrick De Wolf's request, Mr Jean-Marie Verelst reported to him - in a letter dated 21 February 2011 - advising him to appeal against the order of the court sitting in chambers; for the simple reason that the order was tainted by a defect in that it had sent Messrs Alijan Ibragimov and Patokh Chodiev for trial for offences for which they were not being prosecuted. It is clear from the email that Mr Jean-Michel Verelst was not opposed to a suspension.

Ibid., p. 5. Ibid, p. 10.7 756 Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047, p. 7. 757 Ibid., p. 23. 758 See also finding no.435 above in relation to Part II. 754 755

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According to Mr Jean-Michel Verelst, the introduction of an appeal was timely (i) because there was still a fear that the case would become null and void (issue of time barring and/or reasonable time period) and (ii) because of the inadmissibility of the dismissal of the criminal proceedings decided in favour of Ms Natalia Kajegueldina. Mr Jean-Michel Verelst added that, according to his calculations, the case would expire on 28 February 2013.759 784. On 21 February 2011, Mr Jean Franรงois Tossens, a lawyer, turned up at the office of Mr Patrick De Wolf, asking whether the prosecutor intended to appeal against the order of the court sitting in chambers. On the same day, Mr Patrick De Wolf drafted a reply, signed by the public prosecutor, in which he notified Mr Jean-Franรงois Tossens of the lodging of an appeal.760 785. On 22 February 2011, Mr Jean-Michel Verelst received a fax from the public prosecutor in which he agreed with his opinion761. Mr Patrick De Wolf said that an appeal was justified on numerous grounds.762 786. On 22 February 2011, the public prosecutor lodged an appeal against the order of the court sitting in chambers. Mr Jean-Michel Verelst was the magistrate of the acting prosecutor's office763. Next, on 1 March 2011, Mr Patokh Chodiev, Mr Alijan Ibragimov and Mr Alexander Machkevitch also appealed.764 The accused were able to lodge the appeal because they had in particular invoked the inadmissibility of the prosecution before the court sitting in chambers in the written findings.765 787. Also, on 22 February 2011, Mr Marc de Le Court sent a letter to the lawyers Jean-Franรงois Tossens and Armand De Decker to inform them that he had indeed lodged an appeal.

Interview of Mr Jean-Michel Verelst, 21 June 2017, CRIV 54 K044. Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045. 761 Interview of Mr Jean-Michel Verelst, 21 June 2017, CRIV 54 K044. 762 Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045. 763 Interview of Mr Jean-Michel Verelst, 21 June 2017, CRIV 54 K044. 764 Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047. 765 See Article 135(2) of the Belgian Criminal Investigation Code. 759 760

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Mr Marc de le Court said that the letter was in response to the discussions between the lawyers Tossens and De Decker (on February 18 and 21, respectively) and Mr Patrick De Wolf.766 788. According to information provided to the enquiry committee, Ms Catherine Degoul met Messrs Alijan Ibragimov, Alexandre Machkevitch and Patokh Chodiev on or around 23 February 2011. At this meeting Ms Degoul referred to a law that was examined in the Belgian parliament and which could help them find a solution to their legal problems. 789. On March 6, 2011, Mr Marc de le Court received an email from Mr Patrick De Wolf informing him that the counsels767 of the interested parties wanted to organize a meeting with Mr Patrick De Wolf on 9 March 2011 concerning a possible suspension of the verdict. In his email, Mr Patrick De Wolf indicated that both the prosecutors who had handled the case at trial and the General Counsel JeanFrançois Godbille were in favour of a suspension of the verdict. On this matter, Mr Patrick De Wolf referred to the various difficulties faced by the public prosecutor (with regard to the evidence, the length of the proceedings and the consequent risk of time barring or, at the least, exceeding a reasonable time limit). This email also referred to a meeting between Mr Armand De Decker and Mr Marc de le Court. When asked by the enquiry committee, however, Mr Marc de le Court did not recall such a meeting768. 790. On 8 March 2011, Mr Marc de le Court held consultations with two general counsels (Messrs Patrick De Wolf and Jean-François Godbille), who informed Mr Marc de le Court of the “catastrophic state” of the case, as they put it. The possibility of a suspension of the verdict was discussed. Mr Marc de le Court could not remember if the possibility of a plea bargain was also discussed at the time769.

766

Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047.

767 For the names of the counsels: see footnote on p. 732 above. The enquiry committee was unable to check which lawyers were

specifically concerned. 768 Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047. 769 Interviews of Mr Frank Schins, Mr Yves Liégeois, Mr Marc de le Court and Mr Claude Michaux, 21 June 2017, CRIV 54 K043; Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047.

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791. On 9 March 2011, a consultation was held between Mr Patrick De Wolf and the counsels770 for the accused. During this consultation, a “preliminary agreement” was concluded whereby the interested parties would no longer dispute the materiality of the offences, but would request a suspension of the verdict. In addition, the accused had to agree to the confiscation of 14.6 million euros (being the equivalent of the value of the properties).771 792. It emerged from the information forwarded to the enquiry committee that on 9 March 2011, Mr Alijan Ibragimov consulted his new lawyer, Maître Véronique Laurent, about his trial for the first time. With the appointment of his new lawyer, Mr Alijan Ibragimov decided to no longer collaborate with the legal team of Mr Patokh Chodiev et al.. Mr Alijan Ibragimov deliberately chose a Belgian lawyer. Maître Véronique Laurent was recommended to him by Mr Eric Van de Weghe, who was also working with this lawyer at the time. 793. On 10 March 2011, Mr Patrick De Wolf informed public prosecutor Marc de le Court by email of this "preliminary agreement reached after more than five hours of negotiations". The same email stated that the facts would not be disputed in order to obtain a suspension, although the possibility of an extended plea bargain is mentioned, and clearly mentioned that the vote on this draft law had been added to the agenda of the plenary meeting of the House of Representatives of 17 March 2011.772 794. It is clear from the information forwarded to the committee that on 10 March 2011, Maître Véronique Laurent contacted the legal team of Maître Catherine Degoul et al. to propose setting up a collaboration. However, this legal team decided not to collaborate with Maître Véronique Laurent.

770 For the names of the counsels: see footnote on p. 732 above. The enquiry committee was unable to check which lawyers were

specifically concerned. 771 Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045. 772 Ibid.

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795. Subsequently, the public prosecutor's office and the lawyers of the parties concerned continued with their consultations (Maître Jean-François Tossens, Maître Catherine Degoul and Maître Dirk Libotte, Maître Véronique Laurent and Maître Jonathan Biermann). According to Mr Patrick De Wolf, Mr Armand De Decker was not present: "Counsel Armand De Decker did not attend the other meetings with the other counsels for the accused on the conditions of suspension of the verdict or for an extended plea bargain, nor the meeting of 17 June 2011, nor the hearing before the indictment chamber on 28 June 2011”773. The option of an extended plea bargain was discussed. According to Mr Patrick De Wolf, the use of the extended plea bargain was essential because it would not only make it possible to deprive the persons concerned of their pecuniary gains (estimated at 14.6 million euros) and to charge them the legal costs, but also to impose a fine (in this case, a fine (actually a sum of money) of more than 500,000 euros per accused). 796. Extending the plea bargain was first discussed by the Senate Justice Committee on or around 16 March 2011. After deciding to hold interviews, Mr Rudy Volders contacted Mr Grégory Matgen, an MR staff member in the Senate. At his interview, he indicated that this was the first time that he had been called directly on his mobile by someone from the office of the Minister of Finance, as he did not handle Finance cases, only those relating to the Justice committee. He said that Mr Rudy Volders' message was that the law on the extended plea bargain had to be passed without amendment in the Senate, and that the procedure needed to move forward. The recommendation - and this was the message that was subsequently passed on - was to say “look, we understand that you are asking for interviews but the package has to be approved in its entirety”. According to Grégory Matgen, Mr Rudy Volders “spoke to him about the risk of cases being time-barred, but did not specifically identify it”, adding that

773

Documentation sent by M. Patrick De Wolf during his interview on 28 June 2017.

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‘'What was certain is that there was at least one case that was going to be time-barred in a relatively short time, so it was necessary to act.774 Mr Rudy Volders775, said that as far as he was concerned, he called to ensure that the two cases were voted on together, as he was surprised that interviews had been requested on a text drafted by justice system specialists and approved by the Panel of prosecutors general. In addition, according to him, the budget forecast of EUR 50 million for the new plea bargain procedure was based on the annual report of the Finance SPF. The longer the vote on the provision was delayed, the lower the guarantee of obtaining this amount: "At that point, I think the most important point was that the more we delayed the vote on the provision, the more the guarantee of getting those EUR 50 million euros per year was undermined. It was an annual amount, and it was March already.” (translation) But he confirmed: “I have never mentioned “the risk that at least one case would be timebarred”. (translation) Mr Grégory Matgen also stated at his interview that, “these are being discussed in the aisles of the Senate, with staff members and senators wondering what is the real issue behind all this and why we have to act quickly,”776 and added: “So, between the rumours and the discussions, shall we say, in the aisles of the Senate, the fact is that we were talking about Antwerp society and the diamond traders”777. The existence of these discussions in the aisles was denied by the senators and staff members questioned on this subject778.

Interview of Mr Grégory Matgen, 24 May 2017, CRIV 54 K035, p. 14: Interview of Mr Rudy Volders, 22 May 2017, CRIV 54 K034, p. 13; Interview of Mr Rudy Volders, 14 June 2017, CRIV 54 K040, p. 2 and 3. 776 Interview of Mr Grégory Matgen, 24 May 2017, CRIV 54 K035, p. 8: 777 Ibid., p. 12. 778 Interview of Mr Mahoux, 24 May 2017, CRIV 54 K035 p. 4: “really, in no way.”; Interview of Ms Anne Karcher, PS’s staff member, 24 May 2017, CRIV 54 K035 p. 6: “No. Absolutely not”; Interview of Mr Peter Van Rompuy, 24 May 2017, CRIV 54 K035, pp. 2 and 6; Interview of Thomas Van Ongeval, 24 May 2017, CD&V’s staff member, CRIV 54 K035, p. 6: “Ik kende de link die u hier aanhaalt met de diamantsector niet. Ik was daar niet op de hoogte.”.; Interview of Ms Martine Taelman, 31 May 2017, CRIV 54 K036, pp. 3 and 4: “Nee, dat kan ik met stelligheid zeggen.” 774 775

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797. At the meeting of the Justice Committee on 29 March 2011 in the Senate, the draft law amending articles 216a and 216b of the Belgian Criminal Investigation Code and article 7 of the law of 6 June 2010 introducing the Belgian Social Criminal Code was adopted in its entirety by 9 votes to 4, with 3 abstentions779. During the discussion of an amendment by Ms Inge Faes and Ms Helga Stevens intended to bring the miscellaneous provisions law and the amending law into force on the same day, the Minister of Justice told the committee that “the draft miscellaneous provisions law, which also contained other provisions, will be published once it has been approved by the Senate. The draft law under review must also be approved as soon as possible. In the meantime, the Panel of prosecutors general will be instructed to delay the application of the plea bargain until the amending law has also been published. This delay will not be very long in any case”780. (translation) 798. On May 2, 2011, Mr Stefaan De Clerck, Minister of Justice, sent a letter to the Panel of public prosecutors for the attention of Mr Frank Schins (see finding No. 706 above). In that letter, Mr Stefaan De Clerck requested a postponement of the application of the extended plea bargain law until the amending law had been published. Mr Stefaan De Clerck asked Mr Frank Schins to draw up a directive to that effect. Mr. Stefaan De Clerck also said in this letter: “It seems to me moreover that we should discuss the new provisions relating to the extended plea bargain at our meeting on 12-14 May 2011. (...) I therefore believe it would be appropriate to discuss and make concrete decisions on the circular to be drawn up and the associated timetable.”781 799. During May 2011, investigating judge Laurence Heusghem was contacted by telephone by general counsel Patrick De Wolf, who asked him to provide him with the amount of all the legal costs incurred in this case. Advocate general Patrick De Wolf explained to him that the possibility of a plea bargain had been discussed. According to Ms Laurence Heusghem, it was rather unusual for an investigating judge to be contacted directly by a general counsel.782 800. She forwarded the information requested on 6 May 2011.

Senate n° 5-893/3, p. 24. Senate n° 5-893/3, p. 23; see also, above, the finding No 617, Part II. 781 Letter from Mr Stefaan De Clerck to the parliamentary enquiry committee on 27 March 2017. 782 Interview of Ms Laurence Heusghem, 21 June 2017, CRIV 54 K044, p. 4. 779 780

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801. Mr Patrick De Wolf asked the parties the same question: “We had asked all the parties to draw up a comprehensive statement of all seizures and all legal costs. We had asked them to perform this exercise separately, it being understood that I too, in the public prosecutor's office, asked my secretary to perform the exercise, saying: “So, let’s try to draw up a comprehensive statement of all seizures and all legal costs so we can make them repay the legal costs, and in any case we will decide on all these seizures and all these legal costs. They also had to pay the fixed amounts, and repay the full legal costs; and we also had to see what the various seizures carried out were.”783 However, It should be noted that it was at this point impossible to conclude a plea bargain that also included charge A. This charge included forgery and falsification of documents, as referred to in articles 196 and 197 of the Belgian Penal Code.”784. 802. On 9 May 2011, Mr Patrick De Wolf sent public prosecutor Marc de le Court an email as follows: “I had another meeting on Thursday and again this morning with the lawyers of the accused, Chodiev et al.. They want to be able to finalize this deal by the end of June 2011. The amounts that could be obtained through this extended plea bargain could amount to EUR 14.7 million in confiscations, plus legal costs, including translation and CRI costs and fines for the three main defendants, up to 2.5 million euros (or the 500,000 euro fine referred to in art. 505 CP X 5) ... The offences (forgery and falsification of documents, criminal conspiracy and money laundering) were committed mainly between 1992 and 2000, with one further offence alleged in 2004. It is certain that if charges were to be brought before the trial court, all resources would be brought into play to have the prosecution time-barred. In addition, there is a problem of evidence for several offences referred to in the indictment, according to the magistrate of the Brussels public prosecutor's office and according to our colleague, Jean-François Godbille, who has followed this case in the past. (...)

783 784

Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045, p. 14. Notes of the experts to the parliamentary enquiry committee.

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Also, the reasonable time limit has been exceeded in this case. The order of the court sitting in chambers has already dismissed the charges against one of the accused (see copy appended hereto). There is also a procedural problem in this case due to the existence of another case still under investigation by the office of Mr Justice Van Espen. (...) This may result in having to return all the seizures carried out. (...) I would like to be able to settle this case before the indictment chamber (provided that the amending law is still published in May 2011) at the hearing on 15 June 2011, so that this investigating jurisdiction can still validate the extended plea bargain that may be tabled and accepted during the first half of June 2001, by a ruling to be handed down on 22 or 29 June 2011. In any case, this would be the first or one of the first cases in which an extended plea bargain is applied.” In his email, Mr Patrick De Wolf also recalled the evidence that he believed meant it would be preferable to conclude a plea bargain for the whole case. He pointed out that the proceedings relate to offences dating back to 1992, and emphasised the potential issue of time barring and the exceeding of time limits. He also mentioned that another case was ongoing (the case handled by Mr Jean-Claude Van Espen) in parallel with the criminal proceedings for which he was responsible785. 803. On 11 May 2011, Mr Marc de le Court gave counsel permission to consult the dossier.786 804. On 12 May 2011, the House of Representatives decided to seek the advice of the Council of State on the amending law.787 805. On 12 May 2011, general counsel Patrick de Wolf sent the public prosecutor of Brussels, Mr Marc de le Court, a letter in which he requested a plea bargain of 20 million euros in connection with this case, and not to have to wait for the circular: “Item 19 of the PP Panel meeting: Extended Plea Bargain (Article 216a CIC). It is therefore essential that we be able to finalize this extended plea bargain process in this case as soon as possible. All the legal requirements for the extended plea bargain have been met. In this instance we will not be able to wait for a circular from PP Panel!”788

Documentation sent by M. Patrick De Wolf during his interview on 28 June 2017. Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047. 787 Parl. Doc., 2010-2011, Annals of 12 May 2011, CRIV 53 PLEN 032, p. 37. 788 Documentation sent by M. Patrick De Wolf during his interview on 28 June 2017. 785 786

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806. The meeting of the Panel of public prosecutors, the Council of public prosecutors and the Council of labour magistrates took place from 12 to 14 May 2011, chaired by the Minister of Justice. A discussion of the new provisions relating to the extended plea bargain is on the agenda. According to an internal report of 15 May 2011 concerning this multi-day meeting, it was decided at that meeting that the plea bargain law would only come into force after the amending law and a directive prepared by the public prosecutor at the Antwerp Court of Appeal had been published.789 According to the public prosecutor of the Court, neither the Chodiev case nor the Société Générale case were discussed at this meeting: “No (...) Because I do not think the minister has an injunction to give us in specific cases. I am therefore under no obligation to inform him that there are negotiations in progress concerning a dossier, and to ask him whether he agrees or not. I think it is my responsibility to decide or not. I believe that it is up to me to take this responsibility, regardless of the general background against which the Minister is talking.”790(see finding no. 708 above) 807. On 13 May 2011 Mr Patrick De Wolf sent an email to the lawyers of the accused (Maître Catherine Degoul, Maître Jean-François Tossens and Maître Dirk Libotte) as follows: “Please find attached the analytical report on the plenary meeting of the House of Representatives on 11 May 2011.791 As you will see when you read pages 24 to 26, the opinion of the Council of State was requested for the amending law amending article 216a CIC. I wanted to notify you of this immediately.

Letter from Mr Stefaan De Clerck to the parliamentary enquiry committee on 27 March 2017. Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047. 791 The plenary meeting of the House of Representatives was held on Thursday, 12 May 2011. 789 790

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Could you forward this email to the lawyers whose email addresses I do not have and who were also involved in our discussions?”. 808. On 18 May 2011, Mr Marc de le Court, public prosecutor of Brussels, sent a first circular concerning the application of the new plea bargain law. He said that a deal should not be offered except “in very exceptional circumstances” and only with the consent of the public prosecutor: If, however in very exceptional circumstances you feel that you have to offer such a deal, you should send me a detailed report explaining these particular circumstances and requesting my prior agreement.”792 (see findings no. 710 above) 809. On 24 May 2011, a second circular on the application of the new plea bargain law was sent by the Antwerp public prosecutor, Mr Yves Liégeois. This circular is a translation of Mr Marc de le Court's letter stating that no deal should be set up “except in exceptional circumstances” and subject to the consent of the public prosecutor.793 (see finding No. 711 above). 810. On 26 May 2011, the president of the Panel of public prosecutors, Mr Frank Schins, informed the Minister of Justice by letter that he would not adopt a wait-and-see attitude with regard to the amending law: “I have learnt from both my colleague in Brussels and from the Ecofin section of the Antwerp Public Prosecutor’s Office that serious negotiations - which are specifically within the scope of the new article 216a of the Belgian Criminal Investigation Code - are currently in their final phase. (.). I therefore believe that I can agree with the views of my colleague from Brussels and Antwerp-Limburg, that the option of entering into an extended plea bargain has not been entirely ruled out but must be specifically justified and submitted to the public prosecutor's office for approval.” (translation)794. Concerning this matter Mr Stefaan De Clerck told the enquiry committee: “This letter was sent at the end of May. I did not respond, but I was not kept informed of the progress of any such case either. Nor was I subsequently informed of the decisions taken.

Circular of 18 May 2011 relating to the extended plea bargain. Circular of 24 May 2011 relating to the extended plea bargain. 794 Letter from Mr Stefaan De Clerck to the parliamentary enquiry committee on 27 March 2017. 792 793

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I was told that there was a procedure or method for proceeding in exceptional circumstances in a manner other than that which I had asked them to apply.” (translation)795 (see findings no. 714 above). 811. On 10 June 2011, Mr Patrick De Wolf received an email from one of the counsels of the parties involved, Mr Dirk Libotte, to which several appendices were attached: on one hand, a summary of the seizures carried out and the costs incurred and, on the other hand, an “amicable settlement report” and a draft final indictment. Mr Patrick De Wolf confirmed that the intention was indeed that everyone should produce a statement of costs incurred, to the best of their abilities. However, Mr Patrick De Wolf said he was extremely surprised to receive, from lawyer Dirk Libotte by email on 10 June 2011, draft minutes and a draft final indictment for the conclusion of an extended plea bargain. He stressed that he had never asked for or used these drafts. He insisted that the drafts sent were, moreover, unusable and had not been drawn up in line with industry practice. He also said that he had drafted the established procedural instruments himself.796 Based on the information provided to him, the enquiry committee found that it was in this email that reference was first made to the concluding of a plea bargain on the basis of article 21b of the preliminary Title of the Belgian Criminal Procedure Code because the reasonable time limit had passed, as noted by the court sitting in chambers on 18 February 2011. 812. On 13 June 2011, Mr Patrick De Wolf replied to lawyer Dirk Libotte, with a copy to lawyers JeanFrançois Tossens, Catherine Degoul and Véronique Laurent, that it was the responsibility of the public prosecutor rather than the lawyers to draw up the necessary procedural instruments. Mr Patrick De Wolf also mentioned the meeting scheduled for Wednesday, 15 June 2011 to determine whether certain costs were being duplicated. In addition, in this letter, Mr Patrick De Wolf also asked whether it could be confirmed that the fifteen-day period provided for in article 216a of the Belgian Criminal Investigation Code had been waived.

795 796

Interview of Mr Stefaan De Clerck, 14 July 2017, CRIV 54 K054, p. 16. Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045.

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In this email Mr Patrick De Wolf also asked whether the current home addresses of the persons concerned could be provided. In the same email, Mr Patrick De Wolf also said that, in preparation for the drafting of the minutes and the indictment forms, he would have to innovate, given the recent amendment to Article 216a CIC, based on the existing models.797 813. On 14 June 2011, Mr Patrick De Wolf sent an email to Ms Paule Somers, Magistrate and deputy office head at the office of the Minister for Justice, in which he said of the plea bargain: “... It is almost certain that if the plea bargain is not finalized before the end of this month, the E.B. risks losing around 20 million euros... That would be a real shame... It is a financial case (forgery, money laundering, criminal conspiracy). The offences go back a long time (1996, 1997, ... and one in 2004)”. 814. On 15 June 2011, Mr Patrick De Wolf contacted the Central Seizure and Confiscation Body (hereinafter referred to as “OCSC”) to obtain a record of all the seizures carried out and the amounts deposited with the OCSC. Mr Patrick De Wolf also contacted the Finance FPS to obtain the number of the account into which the amounts (due under the extended plea bargain) can be paid.798 815. Also, on 15 June 2011, the lawyers were invited to sign the plea bargain agreement on 17 June 2011.799 816. On 16 June 2011, Mr Patrick De Wolf received an email from lawyer Dirk Libotte, with a copy to his colleagues Jean-François Tossens, Catherine Degoul and Véronique Laurent, saying: “Please find attached a copy of the corrected indictment in Word”. Mr Patrick De Wolf said he was once again particularly surprised to receive such an email. On this matter he said that the prosecutor's office had these texts (of course) so the lawyers did not need send them to him.800 817. On 16 June 2011, in the afternoon, a final meeting was held with the above-mentioned lawyers in order to tie up the loose ends of the extended plea bargain.801

Ibid. Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045. 799 Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047. 800 Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045. 801 Ibid. 797 798

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818. On 17 June 2011, in the afternoon, Mr Patrick De Wolf sent the first part of his draft agreement (with amendments) to the first General Counsel, Mr Jacques Delentdecker.802 This agreement refers to Article 216a, paragraph 1 of the Belgian Criminal Investigation Code, as amended by article 84 of the miscellaneous provisions law of 14 April 2011, which stipulates that a plea bargain is only possible if the public prosecutor considers that a fine or a fine with confiscation would be appropriate for such offence. Page 22 of the agreement says: “Whereas it should be noted that in this case, the conditions laid down in article 84 of the miscellaneous provisions law of 14 April 2011 amending Article 216a of the Belgian Criminal Investigation Code have been met.” Furthermore, the minutes of the general counsel mention various factual circumstances which justify why he considers that the criminal case should be settled through a plea bargain. These include the following items, which must be understood in their context: — the time limit, covering issues of o time barring o reasonable time limit. On this matter, Mr Patrick De Wolf also expressly referred to the application of article 21b of the preliminary Title of the Belgian Criminal Procedure Code, which authorizes the trial judge to impose a penalty that is less than the minimum penalty in the event of a reasonable time limit being exceeded; on 18 February 2011, the court sitting in chambers considered that the reasonable period of time had been exceeded (see finding no. 722 above). — the procedure still pending in the settlement phase of the procedure;

802 Ibid.

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— a public debate could jeopardize the rehabilitation of the accused or undermine their professional and/or social life; — the fact that, before the trial judge, one could no longer require a deterrent fine (in order to prevent reoffending) and the deprivation of benefits; — the confiscation by equivalent of an amount corresponding to the current value of the properties seized at the time (five in total), i.e., 18,450,000 euros. Counsel for the accused also submitted the following in writing to the public prosecutor's office: “That the counsels of those named Ibragimov Alijan, Chodiev Patokh, Machkevitch Alexandre, Kajegueldina Natalia, Fadeeva Larissa Vassilievna, Machkevitch Alla Alexandrovna and Machkevitch Anna Alexandrovna confirm in writing that if it emerges, after the prosecution has been dropped, that sums and assets have been seized in Belgium and elsewhere in the territory of the European Union other than those referred to in the aforementioned documents, their clients will waive any right they may have to these sums and assets. It being understood, as far as it is necessary, that their clients do not waive their rights to frozen assets in Switzerland whose seizure had been lifted by the decision referred to in the letter sent by investigating magistrate Lugentz on 5 September 2007 to investigating magistrate Schmid of Geneva concerning the release of these assets.” The general counsel also wrote that counsel for the accused: — heard the proposal at a meeting with the general counsel; — waived from the statutory payment deadline and indicated that payment would be made within the next few days. 819. On 17 June 2011, the plea bargain agreement was signed by the lawyers concerned (Maîtres Véronique Laurent, Catherine Degoul, Jean-François Tossens, Dirk Libotte and Jonathan Biermann).

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The agreement was signed in the presence of first general counsel Jacques De Lentdecker.803 820. On 17 June 2011, the general counsel announced to the Registrar of the Brussels Court of Appeal, among other things, that on 28 June 2011 he would be reporting at a hearing at which the accused would be appearing voluntarily and where, in accordance with article 216a of the Belgian Criminal Investigation Code, he would be petitioning the court to drop the prosecution804. As an agreement had been reached on 17 June 2011 on the terms of the extended plea bargain, the accused were willing to appear voluntarily and the case could be settled promptly. 821. Several members of the committee questioned Mr Claude Guéant, French Minister of the Interior at the time, concerning an email that Mr Jean-François Etienne des Rosaies was alleged to have sent on 19 June 2011 to the personal assistant of Mr Claude Guéant concerning their meeting on that day (at 7.45pm) and to inform the “PR” (President of the Republic). The enquiry committee was unable to verify the authenticity of the email or the accuracy of its content. In the email, Mr Etienne des Rosaies allegedly said that the Belgian Minister for Justice had dropped the criminal proceedings initiated against Mr Patokh Chodiev. According to this email, the case was allegedly settled by legislation adopted one month earlier on the instigation of Mr Armand De Decker. According to the email, Mr Armand De Decker allegedly made the Belgian Ministers of Justice, Finance and Foreign Affairs aware of the vote on the plea bargain law. Mr des Rosaies allegedly also informed Mr Claude Guéant of a trade agreement between the French President and his Kazakh counterpart concerning the sale of helicopters in exchange for the lifting of criminal proceedings against Mr Patokh Chodiev in Belgium. Asked why he should be kept informed of these facts, Mr Claude Guéant said: “Next, it is perfectly normal for a lawyer responsible for a case who was suggested by the team whose names I recalled earlier, to report regularly, since there are French interests in this case. Lastly, the fact that I was kept informed is because the people working at the Elysée - there were 40 to 45 at the time - filed regular memo reports on the progress of the cases, because I only saw them rarely.

803 Interview 804 In

of Mr Marc de le Court, 5 July 2017, CRIV 54 K047. the version as amended by the law of 14 April 2011.

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It was one memo out of the dozens that I might receive each day. But lastly, I have to say that I don’t see anything abnormal or unusual about giving out information about events that are in the public domain because they are in the press.”148... At his interview, Mr Claude Guéant explained that their role was to suggest to Mr Patokh Chodiev “a competent lawyer, who could intervene in this case, and who was of course registered with the Brussels Bar”805, and the name of Ms Catherine Degoul was put forward. Mr Claude Guéant has added: “(...), I confirm that there has been no initiative from France to amend Belgian legislation. I can say that categorically.” Mr Claude Guéant also stated as follows: “I know absolutely nothing about the conditions under which this law was passed. I know nothing of the conversations that may have – note the conditional tense - taken place between the various parties.”806 This email allegedly said that the Minister for Justice would have dropped the charges against Messrs Patokh Chodiev, Alexander Machkevitch and Ibragimov. Mr Stefaan De Clerck, Minister of Justice at that time, told the enquiry committee: “I mean, obviously a Minister for Justice does not intervene in such cases in any way. It was not mentioned beforehand, or after. They write that it is the Minister for Justice who... That may be the French procedure. I didn’t check to find out whether this could be a French procedure; I don’t know. But in any event, it is totally out of the question in Belgium. This too is purely fanciful. I am assuming that these words are fanciful.”149 (translation). During his interview, Mr Didier Reynders807 said that he was not aware of the task force put in place for the Chodiev case. He learned about this from the press and from the work of the committee. At the time he was not aware of the role played by Mr Armand De Decker in this matter. He had not been made aware of the contacts that he had made with the Minister for Justice since he did not tell him about it. Moreover, Mr Armand De Decker never came to see him in connection with this matter.

805 Interview of Mr Claude Guéant, 3 May 2017, CRIV 54 K025, pp. 4 and 19. 806 Ibid., p. 9.

807 Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, p. 2.

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When questioned by the enquiry committee, he also confirmed that he had not been informed of the situation by any French authority, even in regard to international relations or diplomatic meetings808. In addition, Mr Didier Reynders said the following about Mr Etienne des Rosaies: “I have never met this person. I don't know him personally. I have heard a lot about him, but the most interesting comment was made by Mr Jean-Pierre Mazery, the Grand Master of the Order of Malta, who I did meet, and who seemed to have a very clear opinion about this person. But personally, I have never met him, so I am not going to offer an opinion about him.” At his interview, Mr Jean-Pierre Mazery said about Mr des Rosaies: “He is someone who has many strings to his bow but who has a strong need for recognition, a very strong need for recognition and for social status. So every time he is involved in a case, he tends to claim all the credit and say: “I am in control of everything.” Sometimes this gets rather irritating for the parties who are really in control, but sometimes it suits us too. He overdoes it and at some point people are getting annoyed with him.”809. As to whether Mr Etienne des Rosaies could “go so far as to write falsehoods in order to won praise”, Mr Jean-Pierre Mazery replied: “That’s it exactly! What you are saying is exactly what happens! That is why I say it is irritating because he really goes too far sometimes”810. Mr Steven Vanackere responded as follows to Mr Etienne des Rosaies' email: “I can only speculate on the reasons that would lead someone to claim in an email - perhaps in good faith - that the Belgian Minister for Foreign Affairs had also in one way or another been made aware of this case - and I do not, as a witness to this committee, want to start speculating in this way.

808 Ibid., p. 8.

809 Interview of Mr Jean-Pierre Mazery, 7 July 2017, CRIV 54 K050, p. 7. 810 Ibid.

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In any case, this is an inaccurate presentation of the facts. That is all I have to say. Anyone who claims otherwise is knowingly mistaken or trying to distort reality. With regard to the foregoing, it is perhaps understandable that my name is regularly - and incorrectly - mentioned in the media coverage of this case, but I find it particularly unpleasant. I am well aware that denials rarely garner as much media attention as the insinuations they are trying to put an end to, and the same goes for politics, even more so.”811 (translation) 822. On 21 and 22 June 2011, the accused were summoned to appear at the hearing on 28 June 2011. The invitation was in the usual form: “The file is held at your disposal today and at least 15 days before the date of appearance”. Given that the accused were willing to appear, this standard formula is worthless. 823. On 22 June 2011, Mr Patrick De Wolf confirmed to the first General Counsel that the amounts required under the plea bargain had been paid. 824. On 23 June 2011, Mr Patrick De Wolf received a reply from him in which he was commended for the work he had performed. The first General Counsel described the dossier as a “textbook case”812. 825. On 24 June 2011, the general counsel's indictment at the June 28 hearing was signed by Mr Patrick De Wolf. This indictment mainly included the contents of the minutes of 17 June 2011 and noted that the plea bargain had been accepted and that all the conditions had been met, as well as the request to confirm that the prosecution had been dropped. 826. On 25 June 2011, Mr Patrick De Wolf emailed his final indictment to the lawyers of the accused (Maîtres Jean-François Tossens, Véronique Laurent, Catherine Degoul, Jonathan Biermann and Dirk Libotte). Counsel were also informed in the covering email that the indictment chamber would be sitting on 28 June 2011 (the date set at the request of Mr Patrick De Wolf). Mr Patrick De Wolf said that the presence of the various accused

811 812

Interview of Mr Steven Vanackere, 10 July 2017, CRIV 54 K051, p. 2. Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045.

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(if necessary, represented by their counsel) was essential if the hearing was not to be postponed813. 827. On 26 and 27 June 2011, Kazakh Prime Minister Karim Massimov visited the French Prime Minister, François Fillon. Several agreements and contracts were signed on this occasion, including the contract for the sale of 45 EC-145 French helicopters to Kazakhstan.814 On this matter Mr Claude Guéant stated as follows: “Was it the plea bargain that facilitated the successful conclusion of these contracts, or not? I don't know that because I was not involved at all. The Elysée had no involvement whatsoever in the negotiation of these contracts. This can happen with State-to-State contracts. In this instance it related to contracts with state-owned businesses. To my knowledge, ‘discussions involved trade agreements between these companies and the Kazakh government, concerning observation satellites, helicopters and railway equipment.’ I do not know whether this was a factor that resulted in the signing of the contracts. I do not know that, because I was not monitoring these negotiations.”815 828. Several members of the committee questioned Mr Claude Guéant, French Minister of The Interior at the time, about a confidential memo that Mr Jean-François Etienne des Rosaies allegedly sent him on Tuesday, 28 June 2011. At his interview Mr Claude Guéant, said that he did not recall this memo and wondered whether it was authentic, because there had been speculation in France about a memo whose authenticity Mr De Rosaies had disputed816. The committee was unable to verify the authenticity of this memo or the accuracy of its content. In this memo Mr Etienne des Rosaies allegedly referred again to a request from President Nazarbayev to President Sarkozy for assistance in protecting the legal and economic interests of Mr Patokh Chodiev in Belgium.

Ibid. https://kz.ambafrance.org/Visite-de-M-Karim-Massimov- a-Paris. http://company.airbus.com/news-media/press-releases/AirbusGroup/Financial_Communication/2011/11/20111125_ec_ec145_ kazakhstan.html. 815 Interview of Mr Claude Guéant, 3 May 2017, CRIV 54 K025, p. 10. 816 Ibid., p. 12. 813 814

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He allegedly claimed that eight public prosecutors had so far rejected all appeals and cassation proceedings. Mr Etienne des Rosaies allegedly pointed out therein that a legal team from the Elysée had successfully concluded this affair thanks to his “first cousin Armand De Decker” who apparently secured the support of the Ministers of Justice, Finance and Foreign Affairs, and Armand De Decker also obtained the vote of his Liberal Party to amend a law authorizing the State to conclude financial deals in criminal cases, including those charged with money laundering, falsification of documents and criminal conspiracy. He also stated that Ms Catherine Degoul was the principal author of this law, at the express request of the Minister for Justice and the Belgian public prosecutor. In the memo, Mr des Rosaies also asked Mr Claude Guéant to meet with Minister of State Armand De Decker and Ms Catherine Degoul on the following Tuesday or Wednesday. Mr Claude Guéant told the enquiry committee, concerning this memo: “Memos are binding upon those who sign them, not those who receive them or read them. This seems to me to be an important distinction of method. Was there then a link between the outcome of the legal case of Mr Patokh Chodiev and his friends, and the contracts that were eventually signed? To be quite honest, I cannot say. “What I can say and can repeat, as I have already said it, is that in 2009, from memory even before the President of the Republic went to Kazakhstan, we had been told that it would make things easier if we find a way to a positive judicial perspective.”817 Asked by the enquiry committee about the various allegations contained in this memo, namely the fact that Mr Armand De Decker had obtained agreement from him and the Ministers for Finance and Foreign Affairs to vote on the text, that Ms Catherine Degoul was the principal author of this law, that she wrote it at the express request of the Minister for Justice and the Belgian public prosecutor, and that eight public prosecutor had rejected all the proceedings in appeal and cassation, Mr Stefaan De Clerck indicated that this was false, and fanciful.

817

Ibid., p. 10.

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Mr Didier Reynders and Mr Steven Vanackere also commented on some of the information in this memo, in finding No. 821 (see above). 829. On 28 June 2011, minutes of the hearing were drawn up, stating that the case had been reviewed and adjourned for deliberation for a verdict on 30 June 2011. 830. The minutes of the 30 June 2011 hearing show that the indictment chamber issued a ruling and found that the conditions of a plea bargain have been met and that the prosecution of the accused had therefore been dropped. 831. On 18 August 2011, Mr Claude Guéant asked Damien Loras, in a handwritten note, to remind Mr Patokh Chodiev to pay Armand De Decker and the rest of the legal team818. In this memo, we read: “Dear Damien, I had Armand De Decker on the phone. It is true that he and his team have done a magnificent job, which can only serve the interests of France. My concern, now, is quite mundane: it is that the lawyers who worked for Chodiev be paid now. Can you chase up Chodiev, or have him chased up? Sincerely.” Mr Claude Guéant confirmed the authenticity of this memo before the committee. Asked what he heard by “this magnificent work that can only serve the interests of France,” Mr Guéant replied: The “team" is the legal team that I was referring to earlier, headed up Ms. Catherine Degoul. This team included Maître De Decker and other lawyers, also Belgian. They did do a good job, because through the plea bargain, they managed to put a stop to the proceedings that had been ongoing for the last ten or twelve years, in the so-called Tractebel case, I believe. It is true that that suited France. Why? Because the President of Kazakhstan, Mr Nazarbayev, had indicated that he would be happy to see the prosecution of Mr Chodiev interrupted or even stopped, and that this could only help any trading relationship we may have with that country.” Mr Guéant added: “I see Mr De Decker's intervention purely as the wish that the lawyers be paid by their clients, in this instance Mr Chodiev and his friends.” He also made two small corrections: “Mr Chairman, ladies and gentlemen, my handwriting leaves much to be desired. I will just make one minor correction to your reading, my honourable friend.

818

Interview of Mr Claude Guéant, 3 May 2017, CRIV 54 K025, pp. 4, 11.

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It was not “my” concern, but “his” concern.” 819 (...) “Moreover, I would like to clarify something else. When I say: “I had Armand De Decker on the phone,” it is an abuse of language. Each time, at that time, I must have been passed a note saying that he had telephoned. Perhaps he had telephoned Jean-François Étienne des Rosaies, or Maître Degoul had telephoned - I cannot tell you - mentioning that the whole legal team was waiting to be paid to be paid in accordance with the commitments that had been given.”820 832. Several members of the committee questioned Mr Claude Guéant about a letter sent to him by Ms Catherine Degoul on 14 December 2011, concerning: “Case Catherine Degoul - the Kazakh TRIO”. In this letter, Ms Catherine Degoul confirmed that she had obtained a firm commitment to the payment of her fees and expenses: “on 11 December, I managed to obtain a firm and definitive commitment from my client on the payment of his fees and expenses.” She said that her success of the matter was down to Mr Claude Guéant: “It is through your intervention, and your intervention alone, that the client has complied. I simply cannot thank you enough. I will forever be in your debt.” Mr Claude Guéant could not recall this letter at his interview with the committee and said: “When, as you indicate, and I am not doubting your words for a moment, Ms Catherine Degoul tells me that it is my success, it is simply that at one point, early on this case, in the circumstances I have told you about, the choice of Ms Catherine Degoul was proposed to Mr Patokh Chodiev. And it was her action, together with her colleagues, I do not know, that led to the outcome.”821 Mr Claude Guéant then told the committee: “As I said earlier, in confirmation of the handwritten note I wrote on 18 August 2011, I did indeed inform my colleague, who knew Mr Patokh Chodiev (unlike me), that the legal team was waiting to be paid. That said, I knew nothing about the terms of their remuneration and am unable to tell you how much the lawyers were paid. I have seen figures in the press. I do not know if these correspond to reality or if they are false.

Ibid., p. 3. Ibid., p. 4. 821 Ibid., p. 5. 819 820

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I had no involvement in the matter of the remuneration of Mr Patokh Chodiev’s lawyers.”822. 833. When questioned about the fact that he had reportedly met Ms Catherine Degoul and Mr Armand De Decker on 2 February 2012, during his interview Mr Didier Reynders, confirmed that this meeting had exclusively concerned Mr Jean-Pierre Bemba's case and added that the Chodiev file was not mentioned. “As I told the court investigators on 3 November 2016, I did meet with that lawyer on 2 February 2012. It was a Thursday, the day of the plenary session of the House, as in the Senate. Mr Armand De Decker asked to see me. I went to see him in his office at the back of the Chamber, and they both gave me a letter, which I am willing to provide for you, concerning the possible condition release of Mr JeanPierre Bemba, who had been detained by the International Criminal Court. I would remind you that at that time I had been Minister for Foreign Affairs since 6 December 2011, I think. I forwarded this letter to my administration, who advised me to forward it to the Minister for Justice, which I did.”823. Mr Didier Reynders gave the enquiry committee a copy of the letter produced by Maître Degoul, a copy of the memo prepared by his administration, the Foreign Affairs SPF, Foreign Trade and Development Cooperation, sent on 6 March 2012, as well as a copy of the follow-up letters sent on 12 March 2012, to Ms Turtelboom, Minister for Justice, and Maître Degoul respectively. He added: “(...) I can confirm, if it is really necessary, for the sixth time, that discussions with Mr Armand De Decker and Ms Catherine Degoul focused exclusively on the Bemba case, which I have at your disposal, and that I have not had any contact either with that person (Ed.: Ms Catherine Degoul) or with others in connection with the Chodiev case.”824

Ibid., p. 11. Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, p. 3. 824 Ibid., p. 14. 822 823

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834. The enquiry committee asked Mr Didier Reynders about a letter dated 4 April 2012 which Ms Catherine Degoul allegedly sent to Mr Damien Loras. The committee was unable to verify the authenticity of this letter or the accuracy of its content. Ms Catherine Degoul allegedly wrote therein that she only wanted to meet with Mr Damien Loras if that meant that her charges and fees would be paid. This letter supposedly stated that this meeting “will not be possible without the presence of a senior ranking figure of the Kingdom of Belgium.” Mr Armand De Decker, Mr Guéant and Mr Reynders were reportedly copied in at the end of this letter. Mr Didier Reynders told the enquiry committee that he had never received this letter. “With regard to the letter you are referring to, I only learnt of it in the press. I asked my department, and they said they never received it. I was also rather surprised by the title given to Mr Armand De Decker in this letter. It's rather peculiar, but you'll read it. As far as the reading the press is concerned, I also took the trouble to read De Standaard, because it seems that this document emerged through the French enquiry. According to De Standaard: “During the French investigation, the Elysée’s adviser himself told the investigators that the letter had probably never been sent to Mr Didier Reynders.” I can confirm that I never received it.”825 835. At the hearing before the enquiry committee, Mr Patrick De Wolf stated that the law had not been amended in any way with the aim of settling the cases against Mr Patokh Chodiev et al.. However, according to Mr Patrick De Wolf, the deal concluded proved the utility of this legal arrangement. In spite of exceeding the reasonable time limit, the plea bargain effectively resulted in the accused handing over the pecuniary gains (estimated at 18.45 million euros), payment of the legal costs incurred (251,756.72 euros) and the payment of a sum equal to the maximum fine referred to in Article 505 of the Belgian Penal Code (in total, 3,492,500 euros). Mr Patrick De Wolf described this (given the circumstances of the case) as an exceptional result. At the hearing, Mr Patrick De Wolf also pointed out that the extended plea bargain took place entirely within the framework of the law (since amended). On this matter, he referred in particular to the fact that he was expressly referred to article 21b of the preliminary title of the Belgian Criminal Procedure Code, while specifying that in this instance, the reasonable time limit had already been exceeded 826.

825 826

Interview of Mr Didier Reynders, 14 July 2017, CRIV 54 K055, p. 3. Interview of Mr Patrick De Wolf, 28 June 2017, CRIV 54 K045.

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Mr Marc de le Court also considered that the decision to conclude a plea bargain was the best solution in the circumstances: “This choice seemed to me to be the best response of the public prosecutor to the serious obstacles with which he was confronted: the expired time limit and the near-zero chances of ultimately obtaining a court conviction. In addition, with regard to the amount of the plea bargain, this measure seemed to me to be a powerful deterrent for the accused and an attractive gain for the public purse.”827. At the hearing, Mr Marc de le Court also indicated that he had also examined the legality of the deal concluded. On this matter he said 828: “I also recall that article 21b of the preliminary title of the Belgian Criminal Procedure Code authorizes the lowering of the sentence below the statutory minimum if the proceedings carry on beyond the reasonable time limit. Nothing prohibits the public prosecutor, if a crime has been punished under the mitigating circumstances law, from taking into account the mitigating character expressly provided for by the law - in this case the passing of an unreasonable period of time - to assess the penalty to be requested before the trial judge. (…) On the basis of these considerations, Mr Patrick De Wolf and I drew the same conclusion, which was included in the written indictment subsequently submitted to the indictment chamber, namely that in the event of proceedings before the trial judge, we could not demand more than a fine with confiscation at best, as a reasonable period of time had clearly been exceeded, pursuant to article 21b of the preliminary Title of the Belgian Criminal Procedure Code. (.) With regard to these findings, it appeared to me, as it did to Mr Patrick De Wolf - who was talking to me about this case - that the reasonable period had been exceeded. It therefore became apparent to me that the new law could be applied in this case, on the basis of the application of article 21b above.

827 828

Interview of Mr Marc de le Court, 5 July 2017, CRIV 54 K047, p. 3. Ibid., p. 5.

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I think I confirmed my agreement to negotiations continuing on this basis, sometime between 6 and 11 May.”

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II. â&#x20AC;&#x201D; ASSESSMENTS 1. Introduction 836. The review of Part II made it possible to track the development of the law extending the plea bargain system. The review of Part III, on the other hand, showed how the same law could be applied in two cases before the amending law came into force. 837. For six months, the two proceedings were largely concomitant. 2. Plea bargain: General 838. According to the approved term, a plea bargain introduces a form of negotiated justice. The approach will only be conclusive if the parties in the case agree to speak to each other, to sit around a table, to set out their respective points of view and to determine whether a negotiated solution is actually possible. 839. Should we be wondering, in each actual case, where the idea came from and who contributed primarily to its realisation? In law, the answer is simple: the proposal for a plea bargain originated with the public prosecutor. In reality the situation may be more subtle. In such a procedure, the various players involved can make suggestions, examine solutions, test them, check their practicality, evaluate their pros and cons, identify opportunities or obstacles that may arise during negotiations, and also gradually clarify the practical arrangements, including in financial terms.829 840. Both for the courts and for the parties involved, proposals can be drafted, drawn up and realized. 841. This negotiation-based exploration helps to clarify the set of steps that have been undertaken by the parties in the case. Thanks to the documentation produced, the enquiry committee was able to gain a deeper understanding of the conditions under which such a decision was reached.

On March 8, 2018, the House of Representatives explicitly enshrined this practice in article 216a of the Belgian Criminal Investigation Code. It did so on the opinion of the Supreme Council of Justice - which various speakers backed during the hearings - in order to clarify that the request may also come from one of the parties: see the report of the Justice Committee of the House of Representatives and article 8 of the law amending miscellaneous provisions of criminal law, criminal procedure and judicial law, adopted by the plenary meeting of the House of Representatives, DOC 54 2753/5 and 10. 829

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842. Counsel for the parties concerned played an important role in the negotiated justice process. They can contribute to an evaluation of the utility of a plea bargain. They can promote development, including through procedural acts. They can suggest a set of practical arrangements that make the initial idea a reality. 843. In the case of the “Chodiev et al.” case examined by the enquiry committee, this was the first case in which an extended plea bargain was applied and in which negotiations took place between the accused and the public prosecutor. 844. Extended plea bargains are not recorded by public prosecutor's offices in the same way everywhere. The existing directive on the subject is not applied correctly. 3. Tasks of the justice system 845. In general, the judicial cases studied by the enquiry committee were notable, like many others in the area of financial crime, for their very long processing time, high turnover of magistrates, large number of procedural acts provided for by the law (whether or not were initiated by the defendants' lawyers) by a lack of specialization of certain magistrates and ultimately by the overrunning of the reasonable time limit. These cases often had an international dimension as well. In the cases examined by the enquiry committee, the use of the plea bargain appeared to be more of a last resort (justified by the public prosecutor as an “emergency measure” in order to avoid time barring or overrunning the reasonable time limit), than an instrument that forms an integral part of a coherent and well-thought out prosecution policy. 846. With regard to the two extended plea bargains concluded between 14 April and 20 August 2011, the enquiry committee regretted that, notably due to the lack of human and material resources, justice could not be delivered within a shorter period than what occurred with these two criminal cases.

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Indeed, the extended plea bargain in the Société Générale - Belgimont scrl case involved offences dating back to 1998. In the case of the extended plea bargain concluded relating to Messrs Patokh Chodiev, Mr. Alexandre Machkevitch and Mr. Alijan Ibragimov and consorts, the criminal case had been opened in 1996. This fifteen-year processing period also led the court sitting in chambers to note, in its order of 18 February 2011, that notwithstanding the complexity of the case, the reasonable time limit referred to in Article 6.1 of the European Convention on Human Rights had been exceeded. 847. The committee recalled the importance, with a view to maintaining citizens’ confidence in Justice, of its ability to reach reasonable judicial decisions within a reasonable time, including extended plea bargains and in complex cases involving financial crime and major tax fraud. 4. Reasonable time (article 21b of the preliminary Title of the Belgian Criminal Procedure Code830) 848. Justice must be delivered under time conditions that respect the independence of the justice system, the right to defence of the interested parties and the general interest of both society and its members. The case examined demonstrated that certain procedures were developed under deplorable time conditions, to such point that a set of decisions risked not being handed down within a reasonable time, within the meaning of article 6 of the European Convention on Human Rights. 849. Overrunning the reasonable time limit, and even the risk of such an overrun, could result in the judicial authorities acting outside their traditional remit. 850. In one of the two cases examined by the enquiry committee (see below), invoking the reasonable time limit will ultimately justify, in legal terms, the conclusion and approval of the extended plea bargain.

830 Art. 21b of the preliminary Title of the Belgian Criminal Procedure Code: If the length of the criminal proceedings overruns the reasonable

time, a judge may hand down a sentence by a summary conviction, or a sentence that is less than the minimum penalty provided for by the law. If the judge hands down a sentence by summary conviction, the accused is ordered to pay costs and, where appropriate, compensation to the victim. Special confiscation is ordered.

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851. Article 21b of the preliminary Title of the Belgian Criminal Procedure Code authorizes the judge to hand down a sentence for less than the minimum penalty, or order no more than a summary conviction, which implies that, in accordance with article 21b of the preliminary Title of the Belgian Criminal Procedure Code, the public prosecutor, if he considers that the reasonable time limit has been exceeded, may require a penalty that is less than the minimum penalty to be handed down, or that the judge orders no more than a summary conviction. 852. Legal doctrine does not challenge the legality of these practices within the current framework, even if their suitability is sometimes in doubt. However, the enquiry committee considers that article 21b of the preliminary title of the Belgian Criminal Procedure Code should not be changed. 5. Panel of General Prosecutors - Minister of Justice 853. The enquiry committee considers that the Minister for Justice and the Panel of public prosecutors should not have waited until the extended plea bargain law had come into force, even if several members of the Senate Justice Committee had insisted on this point. 6. Involvement of the public ministry 854. The committee considers that both in the context of the plea bargain concluded in the Société Générale-Belgimont Scrl case and in the case of Messrs Chodiev et al., the legal provisions in force were correctly applied by the public prosecutor. These deals were therefore validly concluded. 7. The “Société Générale and Belgimont Scrl” case 855. It is important to note that in the case of Société Générale - Belgimont Scrl, it was impossible to conclude a plea bargain that also included the charges of forgery and falsification of documents. In practice these offences are always punished, so they become offences. The bundling of most of the charges with charge I resulted in the fact that it was not impossible for the public prosecutor to conclude a plea bargain for forgery under common law.

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This Praetorian practice of bundling several charges together and keeping only one or a few is not unusual for the Antwerp public prosecutor's office. We were unable to determine on the basis of the evidence whether the obstacle concerning forgery was the underlying motivation. 8. The “Chodiev and consorts” case 856. With the “Chodiev et al.” case dragging on for years, and as the court sitting in chambers had concluded that the reasonable time had passed, it was ultimately on the issue of the reasonable time period that the public prosecutor based his decision to conclude and adopt the extended plea bargain. 857. It follows from the whole dossier that a number of initiatives, discussions and decisions by the public prosecutor's office, at its various levels, were motivated by a fundamental concern. It was important to finalize the investigation of a case that had been under review for many years while providing the public treasury with a significant financial inflow. This paved the way for two options to be considered. They developed successively and sometimes concomitantly. The first option was for the prosecution and the public prosecutor's office to consider the suspension of a criminal conviction, combined with a substantial confiscation of property. The second option was for the public prosecutor's office to organize (at a time when the plan was to extend the existing legal arrangements) a plea bargain, including its financial aspects. Lastly, the public prosecutor's office applied article 21b of the preliminary title of the Belgian Criminal Procedure Code, which permits, to take the overrunning of a reasonable time limit into account, “to impose a penalty less than the minimum penalty provided for by law”. These measures made it possible to conclude to a plea bargain without waiting for the drafting of an amending law.

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858. In the case of Mr Chodiev et al., the public prosecutor's office, in view of various factors such as the exceeding of the reasonable time limit and the risk of time barring, considered that it was appropriate to use the plea bargain. The enquiry committee considers that the public prosecutor’s office thus made an appropriate choice that fell within its discretion. 859. The enquiry committee was unable to determine with certainty who first suggested abandoning the option of a suspension by the court sitting in chambers and opting for an extended plea bargain instead. 860. The enquiry committee found that in the case of Mr Patokh Chodiev et al., a lawyer provided the competent prosecutor's office with a draft agreement and a draft request for the conclusion of the plea bargain. Like the magistrate at the prosecutor’s office in question, the enquiry committee considered this measure to be unusual and that it was not up to a lawyer to draft these documents. 9. Foreign intervention 861. The enquiry committee considered that it was unacceptable for foreign authorities to interfere in an ongoing judicial enquiry in Belgium in any manner whatsoever. 10. Notable interventions 862. The parliamentary enquiry committee noted that Mr Armand De Decker met, at his request, with Mr Stefaan De Clerck, Minister for Justice, on 20 February 2011, and with the office head and deputy office head of the Justice Office on 22 February 2011. 863. The enquiry committee considers that it was unethical for the Vice-President of the Senate at the time, Mr Armand De Decker, to have requested the Minister for Justice at the time, Mr De Clerck, to intervene in a pending court case. If he had accepted such a request, the Minister for Justice would have violated the principle of separation of powers. 864. The enquiry committee considers that it was unethical for the Vice-President of the Senate at the time, Mr Armand De Decker, to have asked the former deputy head of State Security, Mr Alain Winants, to order the use of a special intelligence technique in order to find his mobile phone.

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The enquiry committee considers it strange that Mr Alain Winants complied with Mr Armand De Decker's request. 865. The committee considers that it was unethical for the Vice-President of the Senate at the time, Mr Armand De Decker, to have visited Paris to meet with one of the deputies of the French National Intelligence Coordinator, introducing himself incorrectly as the â&#x20AC;&#x153;President of the Belgian Parliamentary Delegation for Intelligenceâ&#x20AC;?. 11. Liaison Magistrate - Seconded Magistrate 866. There are two options for involving magistrates in the work of the government: liaison magistrates and seconded magistrates. Their status and functions are quite different. 867. The liaison magistrate maintains all of his attributes and duties at the general public prosecutor's office. Appointed by the Panel of public prosecutors, his role is to inform the Minister or the Secretary of State on certain aspects of judicial policy. Conversely, he is its intermediary with the judiciary tasked with passing on the wishes of the government, without it interfering in the functioning of the justice authorities. The joint exercise of responsibilities in two separate powers could at least give the impression that the liaison magistrate is one of the first to be informed of changes legislative standards which he could, in his other role, be one of the first to effectively implement in the future. There is no harm in keeping abreast of a law that is being developed, or even contributing to the development of the legislative process. Nor is there any harm in applying the law as soon as it comes into force. Even less in interpreting it in a sense that permits its effective implementation. Combining duties might however suggest that the functions are not as separate as might be wished.

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868. A magistrate seconded to a ministerial office is, for a time, relieved of his judicial tasks and is associated with the political analysis carried out by government bodies on the state of the justice system and on the reforms that he is required to be familiar with. It seems more than questionable to ask one person to perform functions that fall under different orders of responsibility over the same period of time. 869. On this matter, the enquiry committee refers to parliamentary enquiry committee recommendation 1.6, “Fortis”: “the secondment of prosecutors’ office magistrates to government offices can be problematic, especially as it creates informal communication channels. However, their presence can undeniably contribute a certain expertise. The committee does not therefore wish to prohibit secondments, but suggests limiting them to offices where they are essential for the political actions of the minister concerned. In addition, the committee suggests setting up a special code of ethics applicable to these magistrates.” (DOC n° 52 1711/7, p. 71) III. — RECOMMENDATIONS 1. Plea bargain: General comments 870. As the law uses the plea bargain as a negotiated dispute resolution mode, any actors – especially magistrates and lawyers – who may be involved in working on deals of this kind should be given the opportunity to become familiar with the methods specific to “alternative methods for settling legal disputes” via teaching and training modules. The legislator and the ordinal authorities should also consider whether to lay down a specific code of conduct for those who involved in setting up such deals. 871. The enquiry committee recommends allocating the necessary human and material resources for the fight against financial crime and appointing and training judges specialised in these matters.

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2. Liaison Magistrate - Seconded Magistrate 872. The legislator should define more precisely the method for appointing the liaison magistrate, whose role consists in acting as a bridge between the tasks of the government and those of the justice authorities. He must also outline the activities and operating methods, in particular with regard to the cases he is required to deal with at the public prosecutor's office where he works. 873. Concerning the secondment of magistrates to a strategy unit, the enquiry committee is calling for the immediate application of Recommendation 1.6 of the â&#x20AC;&#x153;Fortisâ&#x20AC;? parliamentary enquiry committee, including the drafting of a specific Code of Conduct applicable to those magistrates. 3. Parliamentary audit 874. There is a need for a clear and uniform recording procedure for extended plea bargains, so that everyone records them in the same manner. This concerns both compensation (fraud committed) and the amount of the plea bargain (fine) so that these components can be compared. The enquiry committee recommends that the law provide that the public prosecutor's offices and the general public prosecutor's offices record the plea bargains they conclude on a yearly basis and report them annually to the House of Representatives through the Minister for Justice.

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PART III — VOTES PART I. NATURALISATION AND ACQUISITION OF NATIONALITY I. — FINDINGS All findings 66 - 231 were adopted unanimously. II. — ASSESSMENTS All assessments 232-251 were adopted unanimously. III. — RECOMMENDATIONS All recommendations 252-260 were adopted unanimously. PART II. DRAFTING OF THE MISCELLANEOUS PROVISIONS LAW OF 14 APRIL 2011 ON PLEA BARGAINS I.

— FINDINGS

The following findings were adopted unanimously: 261-436, 439-473, 475-502, 504-563, 565-645. Finding 437 was adopted by 8 votes to 3. Finding 438 was adopted by 8 votes to 2 and 1 abstention. Finding 474 was adopted by 8 votes to 2 and 1 abstention. Finding 503 was adopted by 8 votes to 2 and 1 abstention. Finding 564 was adopted by 7 votes to 4. *

The findings as a whole were adopted by 13 votes to 2.

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II. â&#x20AC;&#x201D; ASSESSMENTS The following assessments were adopted unanimously: 649, 667 and 670. Assessment 646 was adopted by 9 votes to 2 against and 1 abstention. Assessment 647 was adopted by 12 votes to 2. Assessment 648 was adopted by 9 votes to 3. Assessment 650 was adopted by 11 votes to 2. Assessment 651 was adopted by 10 votes to 3. Assessment 652 was adopted by 10 votes to 2. Assessment 653 was adopted by 11 votes and 2 abstentions. Assessment 654 was adopted by 10 votes to 2 against and 1 abstention. Assessment 655 was adopted by 7 votes to 2 and one abstention. Assessment 656 was adopted by 10 votes to one. Assessment 657 was adopted by 10 votes to one and 2 abstentions. Assessment 658 was adopted by 7 votes to 4. Assessment 659 was adopted by 7 votes to 3 and one abstention. Assessment 660 was adopted by 10 votes to 2. Assessment 661 was adopted by 8 votes to 3 and 2 abstentions. Assessments 662 and 663 were adopted by 9 votes to 4 against and 1 abstention. Assessments 664 and 665 were adopted by 10 votes to 4 against and 1 abstention.

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Assessment 666 was adopted by 9 votes to 6. Assessment 668 was adopted by 9 votes to 5. Assessment 669 was adopted by 9 votes to 3 and one abstention. Assessment 671 was adopted by 12 votes and 2 abstentions. Assessment 672 was adopted by 10 votes to 4 and one abstention. *

The assessments as a whole were adopted by 10 votes to 5. III.

— RECOMMENDATIONS

The following recommendations were adopted unanimously: 673, 675, 676 and 679. Recommendation 674 was adopted by 9 votes to 6. Recommendation 677 was adopted by 11 votes and 2 abstentions. Recommendation 678 was adopted by 9 votes to 3. *

The recommendations as a whole were adopted by 10 votes to 5. Part IIB/S. MISE SETTING UP THE TEAM OF LAWYERS OF MR PATOKH CHODIEV’S LEGAL TEAM ON BEHALF OF THE ELYSÉE — FINDINGS The following findings were adopted unanimously: 680-688 and 690-705. Finding 689 was adopted by 8 votes to one and 3 abstentions. *

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The findings as a whole of part II a were adopted by 11 votes to 4. PART III. APPLICATION OF THE LAW ON THE EXTENDED PLEA BARGAIN UNTIL 20 AUGUST 2011 I.

— FINDINGS

The following findings were adopted unanimously: 706-795, 797-820, 822-827, 829 and 830, 832, 834 and 835. Finding 796 was adopted by 9 votes to 4. Finding 821 was adopted by 8 votes to 2 and 1 abstention. Finding 828 was adopted by 9 votes to 2 and 1 abstention. Finding 831 was adopted by 9 votes and 1 abstention. Finding 833 was adopted by 8 votes to 2 and 1 abstention. *

The findings as a whole were adopted by 11 votes to 4. II.

— ASSESSMENTS

The following assessments were adopted unanimously: 836-838, 841, 843 and 844, 846, 855, 859 and 860, 862-869. Assessments 839 and 840 were adopted by 9 votes to 3. Assessment 842 was adopted by 8 votes to 2 against and 1 abstention. Assessment 845 was adopted by 11 votes and 1 abstention. Assessment 847 was adopted by 11 votes to 3. Assessments 848 and 851 were adopted by 10 votes and 2 abstentions.

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Assessment 852 was adopted by 10 votes to one and one abstention. Assessment 853 was adopted by 9 votes and 2 abstentions. Assessment 854 was adopted by 9 votes to 4. Assessment 856 was adopted by 12 votes to 2. Assessment 857 was adopted by 11 votes to 2. Assessment 858 was adopted by 8 votes to 4. Assessment 861 was adopted by 10 votes to 2 against and 1 abstention. *

The assessments as a whole were adopted by 10 votes to 5. III.

â&#x20AC;&#x201D; RECOMMENDATIONS

Recommendation 870 was adopted by 10 votes and one abstention. Recommendation 871 was adopted by 11 votes to 2 and 1 abstention. The following recommendations were adopted unanimously: 872 - 874. *

The recommendations as a whole were adopted by 10 votes to 5. *

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This report, including the five appendices, was approved by 8 votes to 4. The rapporteurs, Eric MASSIN David CLARINVAL Sonja BECQ Vincent VAN QUICKENBORNE

the Chairman, Dirk VAN der MAELEN

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Appendix 1 “Extended plea bargains” Parliamentary Enquiry Committee Interviews Part I: “Naturalization and acquisition of nationality” Date

Interviewed people

11.01.2017- CRIV 54 K001 Katrien Coessens

First Executive Adviser to the Naturalization Department First Honorary Executive Adviser to the Naturalization Department First Honorary Executive Adviser to the Naturalization Department

Greta Craps José Van Hauwermeiren Claude Eerdekens

Former Chairman of the Naturalization Committee

Michel Moock

Former rapporteur for various cases

18.01.2017 - CRIV 54 K002 - CRIV 54 K003 Jennifer Schira

Representative of the Justice SPF

Danielle Adriaenssens

Chairman of GAPEC

Steve Heylen

Chairman of VLAVABBS

Freddy Roosemont

Deputy head, Aliens’ Department

Gert Lievens Philippe Lengler

Representatives of the Economy, SMEs, Middle Classes and Energy SPF

Claude Eerdekens

Former Chairman of the Naturalization Committee First Honorary Executive Adviser to the Naturalization Department

Greta Craps

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25.01.2019

01.02.2017

Jean-Claude Elslander

Public prosecutor of Nivelles

Yves de Prelle de la Nieppe

Former Public prosecutor of Nivelles

CRIV 54 K004 - CRIV 54 K005 Guy Rapaille

Chairman of the Standing Committee R

Damien Vandermeersch

Former investigating judge

Michel Vandewalle

Waterloo Police Commissioner

Michel Vandewalle

Waterloo Police Commissioner (in camera)

Marguerite Zeltman

Secretary

CRIV 54 K006 - CRIV 54 K007 Patrick Sapion

Former local police constable, Waterloo Local Police (in camera)

Michel Vandewalle

Waterloo Police Commissioner (in camera)

Walter De Smedt

Former Counsels of the Committee Standing Committee P

Henri Berckmoes

Former Head of Standing Committee P Investigations Department Former member of the Standing Committee P

Philippe De Cock

Walter Peeters

Former Counsels of the Committee Standing Committee P Former Chairman of the Committee Standing Committee P

AndrĂŠ Vandoren

Joanna Erard

15.02.2017

Chairman of the Standing Committee P (in camera)

CRIV 54 K008 - CRIV 54 K009 Guy Rapaille

Chairman of the Standing Committee R

Guy Rapaille

Chairman of the Standing Committee R (in camera)

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Vincent Scourneau

Mayor of Braine-l'Alleud

Sophie Thonon

Head of the Braine-l'Alleud Civil Status Department

Alfred Hachez

Substitute of the Honorary Public Prosecutor at the Nivelles public prosecutor's office

Jaak Raes

Deputy head of State Security

Bart Van Lijsebeth

Honorary deputy head of State Security

22.02.2017- CRIV 54 K010 - CRIV 54 K011 Robin Libert

Former Head of State Security E5 Department Former Assistant Manager of the State Security E5 Department (in camera)

Sylvie Michiels

Benoît Dufour

Former member BSR-Brussels (Gendarmerie)

Damien Vandermeersch

former investigating judge

Rose-Marie Sukennik

lawyer

Daniel Deroux Philippe Bodson

Former CEOs of Tractebel

08.03.2017 - CRIV 54 K012 - CRIV 54 K013 Johanna Erard Jean-François Kayser Olivier Hastir

Chair of Standing Committee P Auditors of Standing Committee P

Johanna Erard Jean-François Kayser Olivier Hastir

Chair of Standing Committee P Auditors of Standing Committee P (camera meeting)

Bruno Bulthé

Former investigating judge

Françoise Roggen Frédéric Lugentz

Former investigating judges

Bart Van Lijsebeth

Former Director-General of State Security

Serge Kubla

Former mayor of Waterloo

Interviews

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Part II. Drafting of the “Extended plea bargain” law

Date

Interviewed people

15.03.2017 - CRIV 54 K014 - CRIV 54 K015 Yves Liégeois

First general counsel at the Antwerp Court of Appeal

Hildegarde Penne

The prosecutor general at the Antwerp Court of Appeal

Christiaan Nys

Adviser at the Antwerp Court of Appeal

Axel Haelterman

Lawyer and professor in tax law (KULeuven)

22.03.2017 - CRIV 54 K016 - CRIV 54 K017 Robert Tilkin

Former Regional Director a.i., ISI Antwerp

Stefaan Verhamme

Former employee of FEB

Peter Van Calster

Former public prosecutor at the Antwerp public prosecutor's office

Freddy Hanard

Previous CEO of Antwerp World Diamond Centre

29.03.2017 - CRIV 54 K018 - CRIV 54 K019 - CRIV 54 K020 Guy Rapaille

Chairman of the Standing Committee R

Guy Rapaille

Chairman of the Standing Committee R (camera meeting)

Jean-Marc Meilleur

Public prosecutor at the Brussels public prosecutor's office

19.04.2017 - CRIV 54 K021 - CRIV 54 K022 Raf Verstraeten

Lawyer and Professor KULeuven

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Deputy head of State Security (in camera)

Jaak Raes

General Counsel at the Court of Cassation and former deputy head of State Security

Alain Winants

24.04.2017 - CRIV 54 K023 Guy Rapaille

Chairman of the Standing Committee R (camera meeting)

Ignacio de la Serna

Public prosecutor at the Mons Court of Appeal

Ignacio de la Serna

Public prosecutor at the Mons Court of Appeal (camera meeting)

26.04.2017 - CRIV 54 K024 Former president of the Financial Information Processing Unit

Jean-Claude Delepierre

03.05.2017 - CRIV 54 K025 - CRIV 54 K026 Claude Guéant

The former Minister of the French Republic

Philippe de Koster

President of the Financial Information Processing Unit Honorary President of the Financial Information Processing Unit (camera meeting)

Jean-Claude Delepière

05.05.2017 - CRIV 54 K027 - CRIV 54 K028 Fons Borginon Gijs Boute

Staff of the Office of former Deputy Prime Minister and Budget Minister Guy Vanhengel

Eddy Peeters Koen De Busser Heidi Elpers

Office staff of former Deputy Prime Minister and Minister for Foreign Affairs and Institutional Reform Mr Steven Vanackere

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10.05.2017

Philippe Donnay Pierre Goblet

Staff of the Office of the former Deputy Prime Minister and Minister for Employment and Equal Opportunities, Ms Joëlle Milquet

Hervé Parmentier Didier Leemans

Staff of the office of the former Deputy Prime Minister and Minister for Social Affairs and Public Health, Ms Laurette Onkelinx

Eric Kirsch Chris Delaere Charline Desmecht

Staff of the office of former Prime Minister Yves Leterme

CRIV 54 K029 - CRIV 54 K030 Olivier Henin Jean-Claude Fontinoy Emmanuel Boon

Staff of the office of former Deputy Prime Minister and Minister for Finance and Institutional Reform, Mr Didier Reynders

Emmanuel Degreve

Staff member of the office of the former State Secretary for the Modernization of the Finance SPF, Environmental Taxation and the Prevention of Tax Fraud, Mr Bernard Clerfayt

Yann Philippin

French journalist - Mediapart

Bart Vandenberghe Patrick De Wolf Bart Van Humbeeck

Staff and liaison magistrates of the office of former State Secretary for the Coordination of Fraud Prevention, Mr Carl Devlies

15.05.2017- CRIV 54 K031 André Querton Charles Maskens

Representatives of the Belgian Association of members of the Sovereign Military Hospitaller Order of Saint John of Jerusalem, of Rhodes and of Malta - asbl

Charles Ghislain

Former Ambassador to the Holy See

Josy Arens

Former member of parliament

Christian Radermecker

cdH group Secretary

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Emma De Prins

Former clerk to the House of Representatives

17.05.2017 - CRIV 54 K032 - CRIV 54 K033 Carina Van Cauter

Member of Parliament

Stefan Knaepen

Former employee of the group Open Vld

Philippe Goffin

Member of Parliament

Kevin Brackx

Sp.a Group Secretary

Servais Verherstraeten Raf Terwingen Jef Smits

Members of Parliament

Guy Coëme Emmanuelle Dardenne

Former MP PS group Secretary

Muriel Gerkens Meryem Almaçi

Members of Parliament

Gwendolyn Rutten

Member of Parliament

Jean-François Tock

Former employee of the group cdH

CD&V group Secretary

22.05.2017 - CRIV 54 K034 Jan Jambon

Former president of the N-VA political group in the House Former president of the N-VA political group in the House Employee of the N-VA political group in the House

Rob Van de Velde David Rombouts

Rudy Volders

Staff of the office of former Deputy Prime Minister and Minister for Finance and Institutional Reform, Mr Didier Reynders

Jean-Paul De Marie

Nicolas Lagasse

Former political Secretary of the MR political group of the House, Former coworker of the MR political group of the House

Sophie Heuskin

Hildegard Penne

An employee of the office of Mr Stefaan De Clerck, former Minister of Justice

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24.05.2017 - CRIV 54 K035

31.05.2017

Gert Van der Biesen

Clerk of the Senate

Christine Defraigne

Former Chairman of the Justice Committee of the House of Representatives.

Virginie Defrang-Firket

Former Political Secretary of the MR political group in the Senate

Grégory Matgen

Former employee of the MR political group in the Senate

Peter Van Rompuy

Senator and former member of the Senate Justice Committee

Yves Degraeve

(Former) Political Secretary of the CD&V political group in the Senate

Thomas Van Ongeval

Former employee of the CD&V political group in the Senate

Philippe Mahoux

Senator and former member of the Senate Justice Committee

Roland Buytaers

(Former) Political Secretary of the PS political group in the Senate

Anne Karcher

Former employee of the PS political group in the Senate

CRIV 54 K036 - CRIV 54 K037 Martine Taelman

Senator and former member of the Senate Justice Committee

Kris Gysels

Former employee of the group Open Vld of the Senate

Zakia Khattabi

Former Senator and former member of the Senate Justice Committee

Christian Radermecker

(Former) Secretary of the cdH group in the Senate

Güler Turan

Senator and former member of the Senate Justice Committee

Ben Segers

Former sp.a group employee at the Senate

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Inge Faes

Former Senator and former member of the Senate Justice Committee Former Secretary of the N-VA group in the Senate Former employee of the N-VA political group in the Senate

Valerie Van Peel Willem Wevers

Eric Van de Weghe 07.06.2017

(in camera meeting)

CRIV 54 K038 - CRIV 54 K039 Sarah Smeyers

Former Chairman of the Justice Committee of the House of Representatives. Former political employee of the N-VA political group in the House of Representatives Political employee of the Open Vld political group in the House of Representatives

Stefaan GheskiĂ¨re Vicky Osaer

Jo Baret Paule Somers

Former Head of Cabinet Former employee in the office of Mr Stefaan De Clerck, former Minister of Justice

Jo Baret

Former Head of Cabinet

Paule Somers

Former employee of the office of Mr Stefaan De Clerck, former Minister of Justice (in camera)

Guy Rapaille

Chairman of the Standing Committee R (in camera)

Alain Winants

Former Director-General of State Security

Raf Verstraeten Axel Haelterman

Lawyers

Ari Epstein

CEO Antwerp World Diamond Centre (AWDC) Former employee of AWDC

Philip Claes

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14.06.2017 - CRIV 54 K040 Rudy Volders

21.06.2017

Former staff member of the office of the former Deputy Prime Minister and Minister for Finance and Institutional Reform, Mr Didier Reynders

CRIV 54 K044 Emmanuel Dégrève Jean-François Smets Satoko Nakayama

Former Head of Cabinet Former staff of the office of the former State Secretary for the Modernization of the Finance SPF, Environmental Taxation and the Prevention of Tax Fraud, Mr Bernard Clerfayt A former employee of the office of Mr Stefaan De Clerck, former Minister of Justice

Tom Van Wynswerge

05.07.2017

CRIV 54 K047 - CRIV 54 K048 Jean-Claude Fontinoy

Staff member of the office of former Deputy Prime Minister and Minister for Finance and Institutional Reform, Mr Didier Reynders

Charles Ghislain

Former ambassador to the Holy See (in camera)

François de Kerchove

Staff member of the office of former Deputy Prime Minister and Minister for Finance and Institutional Reform, Mr Didier Reynders (in camera)

07.07.2017 - CRIV 54 K050 Jean-Pierre Mazery

Former Grand Chancellor of the Sovereign Military Hospitaller Order of Saint John of Jerusalem, of Rhodes and of Malta - asbl

10.07.2017 - CRIV 54 K051 Jo Vandeurzen

The former Minister of Justice

Steven Vanackere

Former Deputy Prime Minister and Minister for Foreign Affairs and Institutional Reforms

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Laurette Onkelinx

Former Deputy Prime Minister and Minister for Social Affairs and Public Health, responsible for social integration

JoĂŤlle Milquet

Former Deputy Prime Minister and Minister for Employment and Equal Opportunities, responsible for Migration and Asylum Policy Former Deputy Prime Minister and Budget Minister

Guy Vanhengel 12.07.2017

CRIV 54 K052 - CRIV 54 K053 Bernard Clerfayt

14.07.2017

Former State Secretary for the Modernization of the Finance SPF, Environmental Taxation and the Prevention of Tax Fraud, Assistant to the Minister for Finance

Carl Devlies

Former State Secretary for the Coordination of Fraud Prevention, Assistant to the Prime Minister and Secretary of State, Assistant to the Minister for Justice

Yves Leterme

Former Prime Minister, responsible for Coordinating Migration and Asylum Policy

CRIV 54 K054 - CRIV 54 K055 Stefaan De Clerck

The former Minister of Justice

Didier Reynders

Former Deputy Prime Minister and Minister for Finance and Institutional Reform

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Interviews Part III. Application of the “Extended Plea Bargain” law between 1 April 2011 and 20 August 2011 Date

Interviewed people

14.06.2017

CRIV 54 K041 - CRIV 54 K42

21.06.2017

Ghislain Vandercapellen

Former deputy head of the National Collections Unit of the Finance SPF

Carine Busschot

Adviser to the Finance SPF Central Receipt and Collections Department

Stijn Ceulemans

Officer at the National Collections Unit of the Finance FPS

Eric Mercier

Senior Inspector at the SPF Finance National Collections Unit

Piet Ysewyn

Ff. General Counsel ISI Ghent (in camera)

Marc De Munck

Investigating judges of Turnhout

Inge Claes

Former substitute for the public prosecutor of the public prosecutor's Office at the Court of First Instance of Turnhout

Daniel Garabedian Henk Verstraete

Lawyer Lawyer

Flor De Mond

Honorary General Counsel at the Antwerp Court of Appeal

Christiaan Nys

Adviser at the Antwerp Court of Appeal

CRIV 54 K043 - CRIV 54 K044 Walter De Bruyne Tom Boelaert

ISI, Ghent department, Finance SPF Administrator at the Finance SPF Central Receipt and Collections Department (in camera)

Yves Liégeois

Former public prosecutor at the Antwerp Court of Appeal

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Frank Schins Yves Liégeois Marc de le Court Claude Michaux

Honorary president of the Panel of public prosecutors during the first half of 2011 Honorary Members of the Panel of public prosecutors during the first half of 2011

Laurence Heusghem

Investigating judge of Brussels

Jean-Michel Verelst

Former substitute for the public prosecutor of the prosecutor's office at the Brussels Court of First Instance

28/29.06.2017 - CRIV 54 K045 - CRIV 54 K046 Patrick De Wolf

Former general counsel at the Brussels Court of Appeal

05.07.2017 - CRIV 54 K047 - CRIV 54 K048 Marc de le Court

Former public prosecutor at the Brussels Court of Appeal

Dirk Libotte

Lawyer

Johan Delmulle Lucien Nouwynck

Former federal prosecutor Former public prosecutor at the Brussels Court of Appeal

Jacques Delentdecker

Former first general counsel at the Brussels Court of Appeal

Stéphane Boonen

Lawyer and chairman of the bar

Jonathan Biermann

Lawyer

07.07.2017 - CRIV 54 K049 - CRIV 54 K050 Jean-Claude Van Espen

Former investigating judge

Jean-Marc Meilleur

Public prosecutor

Armand De Decker 18.07.2017 - CRIV 54 K056 Véronique Laurent

Lawyer

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Jean-Franรงois Tossens

Lawyer

Jean-Franรงois Godbille

General Counsel at the Brussels Court of Appeal ***

04.10.2017 - CRIV 54 K057 - CRIV 54 K058 Edward Janssens

President of the "Orde van Vlaamse Balies" Former president of the Order of Francophone and German-speaking bars of Belgium

Patrick Henry

Alijan Ibragimov

(in camera)

08.11.2017 - CRIV 54 K059 Pascal Vanderveeren Christiaan Barbier

The lawyers of Mr Patokh Chodiev (in camera)

13.12.2017 - CRIV 54 K060 Patokh Chodiev

(in camera)

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