The conviction of the current Federal Minister for Mobility (the Ecolo), Georges Gilkinet, by the Liège Court of Appeal, for remarks he had made in the media about Patokh Chodiev when he was a Deputy and Member of the Parliamentary Commission of Inquiry on Kazakhgate, was confirmed in Cassation, according to a judgment of the High Court released earlier this week by the defense of the Belgian-Uzbek businessman.
The judgment actually dates back to November 24, but had gone unnoticed. It confirms that the non-liability of a parliamentarian (the fact of not being able to be prosecuted) for opinions or votes cast in the exercise of their functions does not cover the reaffirmation, the repetition of these opinions or these speeches in the media, outside the parliamentary hemicycle.
The Background
In January 2017, the Chamber had created a Parliamentary Commission of Inquiry devoted to "Kazakhgate". Georges Gilkinet, Ecolo Deputy, was then Vice-President and a very active member of this Commission of Inquiry (2017-2018). During that time he had made remarks incriminating the businessman Patokh Chodiev, accusing him of having used his financial power for business. Remarks were repeated in three written media (Libre Belgique, Vif l'Express, Plus Magazine), immediately prompting several legal actions by the businessman.
On June 21, 2019, at first instance, before the Namur court, Patokh Chodiev was dismissed: his request was deemed inadmissible due to the constitutional protection of parliamentary privilege. "No member of either Chamber may be prosecuted or sought on the occasion of the opinions and votes expressed by him in the exercise of his functions", as defined in article 58 of the Belgian Constitution.
The case rebounded on appeal and justice went in a completely different direction. On January 28, 2021, Georges Gilkinet, who had meanwhile become a Federal Minister, was ordered to pay a symbolic one euro in non-pecuniary damage. The 20th Civil Chamber of the Liège Court of Appeal then considered Patokh Chodiev's request partially admissible and founded, based on detailed case law of the European Court of Justice, that parliamentary immunity does not cover "allegations of a criminal nature which are unrelated to problems of general scope, or which do not fall within the scope of public debate of general interest". The Liège Court of Appeal recalled in its judgment that, by the violence of his remarks and his accusations, Mr Georges Gilkinet "did not content himself with expressing suspicions and asking questions within the framework of his right of Parliamentary Inquiry, but unambiguously accused Patokh Chodiev”. The Court considered that the status of opposition parliamentarian at the time “did not authorize him to abuse his freedom of expression by publicly laying serious and specific criminal charges against a citizen”. After reviewing the judgment with his advisers, Georges Gilkinet decided to appeal to the Court of Cassation. And it is precisely the latter who made its decision, dated November 24, and definitively rejected the request.
The Chodiev camp claims victory
In 22 pages, the Court of Cassation therefore considered that there was no "fault" in the decision taken on appeal in this case, a decision now final. No protection for statements made in the media in this case. The Court dismissed the appeal and "ordered the plaintiff to pay the costs". Minister Gilkinet "takes note". Respecting the separation of powers and the different levels of appeal of our justice, it stops there. No further comments. And there is no question of going before the European Court of Human Rights to invoke in particular the freedom of expression of parliamentarians.
On the side of Patokh Chodiev, his counsel Mr Pascal Vanderveeren, says he is necessarily satisfied, judging the Cassation decision "major and which comes to restore the facts. It demonstrates that Belgian justice remains independent and sovereign, basing its decisions on the law. This decision finally demonstrates that respect for the law is binding on all citizens, including leading politicians. No one can wrongly accuse another without having to bear the legal consequences. And this, whether you are a Member of Parliament for opposition or Deputy Prime Minister. This judicial decision is the victory of the rule of law over the sensationalism of show politics carried out at the expense of Belgian citizens”.
