Swiss will follow if Pakistan removes presidential immunity: lawyer
March 15, 2012
François Micheli's law firm represented Pakistan in around a dozen cases with the Switzerland authorities from 1997 to mid 2008 when, under the infamous National Reconciliation Order (NRO), the attorneys representing Pakistan were instructed to drop the criminal proceedings against the accused couple, President Zardari and Benazir Bhutto.
As the Supreme Court presses ahead with its determination to get Prime Minister Yousuf Raza Gilani to write to the Swiss authorities to re-open the corruption cases, a lot of speculation in Pakistan swirls around the statutory limitation and it is suggested that after 15 years, taking into count 1997 when the famous money laundering SGS/Cotecna cases were opened against the duo, are lapsed the cases could not be opened.
But the former Pakistani state attorney has revealed that the 15 year limitation rule doesn't apply as simply in this matter as, when and if Pakistan makes a request for the reopening of the cases, it will be of paramount importance that what happened to the assets (65 million Dollars) unfrozen in 2008.
“If the assets were moved elsewhere then that’s a new offence and that’s a new period of limitation,” he said, implying that the emphasis on the cut off time was misplaced and he was not aware what happened to the assets after his firm seazed representing Pakistan.
This assertion means that even if a single penny was moved out of the unfrozen accounts then that date will form the start date of any new prosecution – the new start period of statutory limitation.
He said it would be a complex matter if the assets were still in Switzerland and not moved but “it needs a close examination under Swiss law”.
"If the assets were moved elsewhere then that's a new offence and that's a new period of limitation," he said, implying that the emphasis on the cut off time was misplaced and he was not aware what happened to the assets after his firm ceased representing Pakistan.
This assertion means that even if a single penny was moved out of the unfrozen accounts then that date will form the start date of any new prosecution - the new start period of statutory limitation.
He said it would be a complex matter if the assets were still in Switzerland and not moved but "it needs a close examination under Swiss law".
He explained that his law firm represented Pakistan in the mutual legal assistance proceedings where it was on Pakistan's request that the Swiss authorities were cooperating to assist Pakistan's investigations by helping with bank records, money movement etc.
He also represented Pakistan in his country's own Penal proceedings, where the money laundering case was probed.
He said the system for mutual legal assistance was simple; it was more complex when it comes to the local Swiss penal proceedings.
He doubted that the Swiss will re-open their own penal investigations although it was legally possible, but confirmed that Swiss will actively cooperate with Pakistan's own penal proceedings if a request was made through the attorney general.
"It is significantly simpler to reactivate the mutual legal assistance proceedings. What Pakistani authorities must do is to file a request to the Swiss authorities to know what has happened to the assets that were unfrozen in 2008.
It's quite simple to do. What is required is that Pakistan penal authorities actively investigate and prosecute the concerned cases and if that's fulfilled Switzerland will help Pakistan and provide its support. That's the basic requirement under mutual legal assistance."
When asked what would happen if Pakistan requested of Swiss to probe these cases under the Swiss under penal laws, Mr. Micheli replied that “that’s legally possible. There is a question of opportuneness. The centre of gravity of various cases we have been dealing with is in Pakistan, rather than in Switzerland.
The main suspects and offenders are in Pakistan so the natural place where such penal proceedings should be conducted is definitely Pakistan. The Pakistani penal authorities are better placed to cut the Gordian knot.”
When asked what would happen if Pakistan requested of Swiss to probe these cases under the Swiss under penal laws, Mr. Micheli replied that "that's legally possible. There is a question of opportuneness. The centre of gravity of various cases we have been dealing with is in Pakistan, rather than in Switzerland. The main suspects and offenders
are in Pakistan so the natural place where such penal proceedings should be conducted is definitely Pakistan. The Pakistani penal authorities are better placed to cut the Gordian knot."
Explaining the Swiss position relating to immunity, the attorney said the Swiss Department for Foreign Affairs will go by what the foreign state has decided. "If Pakistan lifts this immunity then Swiss will go by what Pakistan has decided. If Pakistan doesn't recognize immunity to head of state or its public officials Swiss will not either".
It was from Mr Micheli’s office in December 2009 when Wajid Shamsul Hasan, Pakistan’s envoy to London, and a National Accountability Bureau official removed the files and the scenes of files being transported to the Pakistani diplomatic car made headlines. The attorney stressed that his firm is under legal obligation of carrying “at least a copy of what we have done for our client” and “our obligations is to keep the records for ten years after the closing of the case.
The prosecutor general of Geneva who was dealing with penal cases also keeps his records for a long duration too. I believe that the time period is until the period of limitation is reached which is 15 years for the offences or aggravated money laundering charges”.
It was from Mr Micheli's office in December 2009 when wajid Shamsul Hasan, Pakistan's envoy to London, and a National Accountability Bureau official removed the files and the scenes of files being transported to the Pakistani diplomatic car made headlines. The attorney stressed that his firm is under legal obligation of carrying "at least a copy of what we have done for our client" and "our obligations is to keep the records for ten years after the closing of the case".
The prosecutor general of Geneva who was dealing with penal cases also keeps his records for a long duration too. I believe that the time period is at least until the period of limitation is reached which is 15 years for the offences or aggravated money laundering charges".
He said if there has been any movement of the money transferred after 2008 then it can be traced and are evidenced by banking records.
He said if the Swiss cases are reopened, the first thing the Swiss authorities will do is to determine where the monies went. “They will probably also freeze them if they are still in Switzerland. The Swiss authorities have the means of coercion of the penal authorrities in general: hearing witnesses, raiding premises, seizing evidence and assets. It's an easy thing. If assets are moved then the paper trail should be easy to reconstruct too.”
He said if there has been any movement of the money transferred after 2008 then it can be traced and are evidenced by banking records.
He said if the Swiss cases are reopened, the first thing the Swiss authorities will do is to determine where the monies went. "They will probably also freeze them if they are still in Switzerland. The Swiss authorities have the means of coercion of the penal authorities in general: hearing witnesses, raiding premises, seizing evidence and assets. It's an easy thing. If assets are moved then the paper trail should be easy to reconstruct too."
He said the guilty verdicts against Benazir Bhutto and Asif Ali Zaradri in money laundering proceedings in which each was condemned to a 6 months prison term didn’t make any progress to the logical conclusion because “the criminal procedures in Pakistan were not making visible progress”. They both opposed the sentences, and the cases were brought to a trial court, comprising 3 judges.
They concluded that the matter was too serious and sent the case back to the Prosecutor and the examining magistrate who indicted the couple also for aggravated money laundering.
“The investigation was then ruled as being complete. There have been no significant procedural progress thereafter, also because the criminal procedures in Pakistan were not making visible progress. We don’t know what actions was taken by the Swiss prosecutor after we stopped representing the interests of the State of Pakistan.”
The attorney said Pakistani authorities - ambassador in Switzerland, law minister, Attorney General for Pakistan, Prosecutor general NAB and Ehtesab cell - offered satisfactory and promising cooperation up to Spring 2001 and then they went slow.
"We were of course disappointed but were hoping that the cases would tried again shortly thereafter by the competent court, as all material evidence was already on record. There were many postponements, delays, reports of hearings, and in general adjournments."
