GENEVA: A Swiss law expert who represented Pakistan in the graft cases against President Asif Ali Zardari has said that the letter to be written by Pakistan to Swiss authorities will mean nothing if it doesn’t categorically seek Mutual Legal Assistance (MLA) for Pakistan’s own penal investigations to trigger the re-opening of the dormant corruption cases.
François Roger Micheli, Attorney-at-law in Geneva, whose firm represented Pakistan in high-profile Swiss corruption cases from 1997 until March 2008 spoke to Geo News in an exclusive interview over the weekend.
Prime Minister Raja Pervaiz Ashraf has formally authorised Law Minister Farooq H Naek to write to Swiss authorities in the National Reconciliation Ordinance (NRO) implementation case stating that former attorney general Malik Qayyum had overstepped his authority and that the incumbent government disowns the letter he had written in 2008.
Micheli explained that the wording of the letter would be of essence and that the letter would have effect only if Pakistan had a penal investigation “open and actively pursued” regarding the proceeds of the corruption. “The whole sense of the MLA is that the Swiss help another country with its own investigation. It makes no sense to file an MLA request if there is no investigation active in the requesting state, where there must in principle be a penal investigation pending. This investigation should also probe the events starting 2008, when the assets frozen by the Swiss have been released,” the lawyer maintained.
“The second condition is that Pakistan must notify Swiss authorities that president’s immunity has been lifted. If Pakistan lifts the immunity, Switzerland will act. It’s in public knowledge that the assets which were frozen have been released by the Geneva prosecutor in 2008 upon the express wish of a delegation from Pakistan which came after the enactment of NRO. What’s interesting to know is where that unfrozen money went afterwards. The MLA request can aim at freezing and confiscating the proceeds of the crime, and repatriating them to Pakistan,” the attorney said in reference to the requirement for an MLA request to be successful.
He has said that Pakistani authorities and the National Accountability Bureau (NAB) know very well what to do to successfully file an MLA request. “Pakistani authorities on repeated occasions from 1997 to 2004 have asked for cooperation. This has been successful and many documents were remitted to Pakistan, Swiss froze assets and it went as far as to share with Pakistan the assets it could confiscate. It was quite satisfactory from ‘97 to ‘04.”
When asked why, after the withdrawal of Pakistan as a civil party, did Daniel Zapelli, the then Geneva prosecutor general, drop the prosecution (which is independent of MLA), particularly after Judge Vincent Fournier’s final report of a hearing by him was complete and the case with all its evidence was ready to go for big trial, the law expert replied that Mr Zapelli decided to shelve his own investigation on the grounds of opportuneness.
“It’s one motive for which a prosecutor is entitled to shelve. The corruption and money laundering case was an important case notably because of the amount involved, and because of the persons suspected. What happened in 2008 when the NRO was enacted in Pakistan which had for more than 10 years steadily said it had been damaged by the offences prosecuted in Switzerland but all of a sudden in 2008 it went to Geneva prosecutor and by a delegation of its authorities notified its wish that the whole matter be dropped. As the victim of the offence was a foreign state it’s legitimate that the PG took its wish into account. However, I may add that not all those who were under investigation and have been convicted in Geneva were persons who came under the ambit of the NRO. It is difficult to understand why the penal investigation has been shelved also regarding the Swiss lawyer, who is not concerned by the NRO,” the lawyer held.
Quoting the Swiss Federal Department of Foreign Affairs, he said that heads of state enjoy full immunity against legal proceedings abroad but nothing protected the “participants” – everyone who was part of the investigation case and there were other people involved – who did not have immunity. He was surprised that Pakistan authorities had not “already re-activated mutual legal assistance against those who participated in the money laundering scheme and those who were suspected of moving the released money, after the freeze was lifted in 2008. He said that the amount involved was not insignificant.
The lawyer said the statutory limitation was a “complex legal issue” as some facts lay back more than 15 years but it was “absolutely clear that there was no period of limitation issue regarding the facts that were being assumed that took place in 2008 and afterwards, when the freezing of the assets was lifted. “We believe when the freezing order was lifted, the money was transferred further and that’s clearly another act of money laundering,” the Swiss law expert opined.
He said Swiss law could facilitate the tracing of un-frozen funds in this case. Pakistan could file a request to “confiscate the assets that were released in 2008, in view of their repatriation to Pakistan”.
“A case for recovery of the plundered amount could commence against the accused but it is for Pakistani prosecution authorities to decide the precise scope of their own investigation, it’s for them to decide,” he said.
The Swiss lawyer, Jens Schlegelmilch, acted as a front man. There is no reliable information available on his whereabouts but it is believed he lives between Switzerland and Dubai. The original investigation was opened on many corruption cases, involving more than a dozen persons. Five of them were indicted on charges of money laundering. The proceedings regarding two of them were shelved after the NRO, and long before it was enacted. Three were condemned, and then additional charges for aggravated money laundering were notified to them.
The lawyer said the appointment of Babar Awan as Minister of law and Justice was surprising as he had previously been flown once to defend his client in the Geneva Penal investigation into money laundering charges, and therefore was “well aware of the seriousness of the evidence on record.”