maria schnebli, federal prosecutor

5th ICAC SymposiumHong Kong, May 9 – May 11 2012

Enhancing International Cooperation: Facts and Challenges in the Swiss Fight against Corruption

Maria Schnebli, Federal Prosecutor

Deputy Head of the Competence Centre for International Mutual Assistance at the Office of the Attorney General of Switzerland (OAG)

Maria Schnebli, Federal Prosecutor2

• International cooperation in criminal matters with Switzerland as an important financial centre

• The Swiss perspective on key issues for an efficient fight against corruption and money laundering

• Cooperation between financial centres worldwide as recipients of funds from corruption and countries of origin of such funds

• International assistance in criminal matters through formal requests from both sides and coordination of criminal proceedings on both sides: forging a partnership


The Swiss perspective (1):

• worldwide cooperation in criminal matters based on multilateral and bilateral treaties as well as on national legislation (Federal Act on Mutual Assistance in Criminal Matters IMAC) and the principles of reciprocity and trust

• Criminal investigations concerning laundering of the proceeds of bribery (corruption) and other crimes based on

information from Swiss banks: STR (suspicious transaction reports) filed to the Swiss FIU, the Money Laundering Reporting Office of Switzerland (MROS)

information resulting from analyzing incoming requests for mutual legal assistance (MLA requests)



• Need to establish/prove the predicate offence (e.g. corruption) of money laundered through Swiss bank accounts in order to obtain a conviction for money laundering in a Swiss court:

MLA requests from Switzerland to countries of origin in order to obtain the necessary information and evidence relating to the predicate offence

Transmission of „spontaneous information“ about money laundered through Swiss accounts to countries of origin according to Art. 67a IMAC in order to „trigger“ a MLA request

• Coordination of ongoing criminal investigations in Switzerland and other countries



• Coordination between Law Enforcement/Police and Prosecution

• Different law enforcement authorities with competences in the area of fighting corruption: no particular/specially created anti-corruption commission/task force/etc.

• Switzerland has implemented the Anti-Corruption Conventions of the OECD and the Council of Europe

• Switzerland has ratified the UN Convention against Corruption

• The Swiss legislation has been adapted according to the different Conventions‘ requirements before ratification

• OAG acts as the central point of entry in „grand corruption cases“



• Coordination on an international level:

• Eurojust (Cooperation agreement between Eurojust and Switzerland concluded on November 28, 2008)

• Stationing of two Liaison Officers with Europol in The Hague

• Stationing of a Swiss Liaison Officer with Interpol in Lyon

• Joint Investigation Teams with countries which have ratified the 2nd Additional Protocol to the Council of Europe MLA Convention

• Joint Investigation Teams with Schengen countries (Adhesion of Switzerland to the Schengen regulations as of March 1, 2008)

• Police Attachés of the Federal Judicial Police worldwide


The competent Swiss authorities:

• The Federal Office of Justice (FOJ): Central Authority in MLA matters (for incoming and outgoing MLA requests)

• The Office of the Attorney General of Switzerland: competent to investigate complex cases of corruption/money laundering/organized crime/terrorism and to execute incoming MLA requests concerning complex cases of corruption/money laundering/organized crime/terrorism

• The Federal Judicial Police (FJP) with specialized units to investigate corruption cases

• The Cantonal Prosecutor‘s Offices: competent to investigate smaller cases of corruption

• The Money Laundering Reporting Office (MROS) as part of the Federal Office of Police

• 3 official languages (German, French and Italian)


What does the OAG offer?

•Assistance with preparation of MLA requests,in coordination with the Federal Office of Justice (central authority)

•Examining drafts of MLA requests in English, French, German, Italian, Portuguese and Spanish

•Personal meetings in order to coordinate criminal investigations and MLA requests

•Reliable, direct contacts with specialists in the area of international cooperation and combating corruption


• International cooperation in the fight against corruption: what does Switzerland need ?


International cooperation in the fight against corruption: what does Switzerland need from other countries?

• Ensuring a coordinated approach in cases of „mirror proceedings“, i.e. parallel ongoing criminal investigations in the country of origin of funds (relating to the predicate offence) and in Switzerland (relating to money laundering)

• Transfer of criminal investigations: discussions on best choice of targeted approach. Where should the investigated crimes best be tried ? (e.g. if the money launderer is a foreign national and residing outside of Switzerland)

•incoming MLA requests: detailed description of the facts and investigated offences as well as coordinates (name, telephone, fax) of the responsible requesting authority/requesting magistrate or prosecutor

•Efficient exchange of information between foreign FIU‘s and Swiss FIU (MROS)

•Efficient exchange of information at police level (Interpol, Europol and national •police forces)


Asset Recovery as a key issue for Switzerland in the international cooperation in the fight against corruption: basic principles and new approaches

•basic principle: Art. 74a IMAC: Objects or assets subject to a precautionary seize may be handed over to the competent foreign authority at any stage of the foreign proceeding, as a rule based on a final and executable order of the requesting State.

•new approaches: •Participation of country of origin of funds as „partie civile“ in Swiss criminal proceedings (Art. 118 Code of Criminal Procedure) and restitution of assets under the title of compensation from funds confiscated in Swiss criminal proceedings

• Sharing of assets confiscated in Swiss criminal proceedings or foreign criminal proceedings between Switzerland and the country of origin of funds according to the Swiss Federal Law on Sharing of Confiscated Assets) under the condition of reciprocity


Asset Recovery as a key issue for Switzerland in the international cooperation in the fight against corruption: basic principles and new approaches (cont‘d)

•the RIAA (Restitution of Illicit Assets Act) has entered into force on February 1, 2011, based on lessons learned from the Duvalier and Mobutu cases

•Use of the RIAA, once a MLA request has been sent and subsequently the requesting country is unable to go through the whole process of execution

•RIAA as the „fall back position“: if „the country of origin is unable to satisfy the requirements of legal assistance proceedings owing to the total or substantial collapse, or the unavailability, of its national judicial system (failure of state structures)” (Art. 2 of the Federal Act on the Restitution of Assets of Politicially Exposed Persons obtained by Unlawful Means (Restitution of Illicit Assets Act, RIAA)

•The RIAA provides that MLA proceedings will be relaunched and confiscation proceedings according to RIAA will be suspended if and when structures and judicial system in country of origin of assets are reestablished/political will for cooperation in country of origin is newly formed/reestablished (art. 5 Abs. 4 RIAA)



• the RIAA is applicable

•if the assets have been secured provisionally in the context of a process of mutual assistance in criminal matters instigated at the request of the country of origin (Art. 2 lit. a RIAA)•if powers of disposal over the assets rest with individuals who exercise or have exercised a high public office abroad (politically exposed persons) or their close associates (Art. 2 lit. b par. 1 and 2 RIAA)

•and

•if the safeguarding of Swiss interests demands that the assets be frozen.(Art. 2 lit. d RIAA)



the confiscation according to the RIAA is possible if the secured assets have been obtained by unlawful means (presumption of unlawful origin with reversal of the burden of proof, art. 6 RIAA).

Because of the reversal of the burden of proof, the holder of frozen assets has to demonstrate their legal origin if :

enrichment of the person holding powers of disposal over the assets has been subject to extraordinary increase that is connected with exercise of public office by the PEP (Art. 6 para. 1 lit. a RIAA)

level of corruption in the victim country during term of office of the PEP is or was acknowledged as high (Art. 6 para. 1 lit. b RIAA)


Key Issues for a successful MLA request

• Communication between requesting and requested authorities before sending the MLA request: through embassies/central authorities/direct contact

• Integrate the sending of MLA into the overall strategy of the investigation: when to send a MLA, which requests to include into it, which countries should be „targeted“ with MLA requests at the same time

• Examine carefully the applicable treaties/legislation: which tools of international cooperation can be used (videoconference, joint investigation teams etc.)

• Bear in mind that the MLA request will be executed – as a rule – according to the criminal procedure of the requested country (for Switzerland: Federal Code of Criminal Procedure, in force since 1.1.2011).


Key Issues for a successful outcome of MLA requests (cont‘d)

• Indicate precisely which evidence is requested with the MLA request

• Request authorization to be present during execution of the request (advisable in complex cases)

• Include text of offenses investigated in requesting country as well as applicable criminal procedure rules in requesting country (for witness interrogations etc)

• Include detailed description of facts and complete coordinates of requesting authority, thereby providing the necessary facts for examination of dual criminality


Key Issues for a successful outcome of MLA requests (cont‘d)

in the case of requested bank records as evidence/request of account freeze:

provide detailed description of facts providing a connection between the requested bank records and your investigation/flow of proceeds of crime into bank accounts abroad

give concrete figures or at least an estimate concerning the product of crime and indicate the time frame when crimes were committed

specify the targeted banks, not necessarily the bank account numbers („fishing expeditions“ not allowed according to Swiss jurisprudence and legislation)

ask not only for bank records (account statements etc.) but also for KYC files/Compliance files


Frequently Encountered Problems:

• No previous contact from requesting authority before formally transmitting the request

• no possibility to establish or maintain contact (due to frequent changes within authorities) with requesting authority once the MLA request has been sent

• absence of dual criminality or possibility to examine this question due to missing facts in MLA request (incomplete description of facts)

• problems with quality of translation

• vigorous resistance to execution of MLA request from parties targeted by MLA request (account holders etc.) with powerful attorneys (lenghty appeal proceedings)


Frequently Asked Questions (and the answers):

• Is bank secrecy an obstacle to providing assistance in criminal proceedings? (No it isn‘t).

• Can you also give assistance and force the banks to produce bank records when numbered accounts are concerned? (Yes, of course. The only difference between numbered accounts and other accounts is that the numbered account data are only accessible to a limited number of bank employees for reasons of confidentiality within the bank).

• Is there a central register of bank accounts for the whole country ? (No. Each bank has to protect their client‘s bank secrecy towards every other bank).

• Can we also request a freeze of real estate? (Yes. However, there‘s no central register for real estate either. Each canton has its own real estate register).


Frequently Asked Questions (and the answers- cont‘d):

• Can we do this interrogation by video conference? (yes if there is a treaty providing for this possibility. No, „but“ if there isn‘t: in that case, we will have to define very carefully the conditions and it will depend on the consent of the interrogated person and his lawyer)

• Can a house search be done at a lawyers‘s office (only under very limited conditions, i.e. if the lawyer himself is a suspect)

• If we ask for authorization to be present during execution of our MLA request, can we then question the witnesses ourselves? (No. The execution of the MLA is done by the requested authority only. The requesting authority‘s presence is subject to strict conditions which have to be agreed to beforehand in writing by the requesting authority.)


Frequently Asked Questions (and the answers- cont‘d):

• How long does it take to execute our MLA request ? (that depends on whether

the parties targeted consent to the transmission of the evidence or whether they file appeals; in the case of appeals, it can take several months or longer)

• Which are the grounds for appeals? (appeals against account freezes and authorization of presence of requesting authority: an immediate and irreparable prejudice. appeals against transmission of evidence: absence of dual criminality/no criminal proceedings in requesting country/serious flaws in the MLA request (contradictory description of facts/missing elements in the request)/requests for evidence inadmissible in requesting country etc./requesting country is not a state under the rule of law/MLA request is politically motivated/others)


Questions?

Contact:

Maria Schnebli, Federal Prosecutor

Tel. +41 31 322 06 59/Fax: +41 31 322 45 07

Cellphone +41 79 763 94 81

Office of the Attorney General of Switzerland

Taubenstrasse 16, 3003 Bern, Switzerland

e-mail [email protected]

mailto:[email protected]

maria schnebli, federal prosecutor

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