Press Release, FOJ, 02.07.2008
Duvalier assets remain frozen
Account holders must prove lawful origin
The Duvalier case began in 1986 with the submission of a request for international judicial assistance. In the application, the Haitian authorities requested that the assets of former President Jean-Claude Duvalier be frozen, that bank documents be handed over, and that the frozen assets be released to Haiti. With no prospect of success for these proceedings, the Federal Council froze the Duvalier assets in 2002 under the provisions of the Federal Constitution. In doing so, it wished to prevent the abuse of Switzerland's financial sector as a place of safety for assets acquired by unlawful means. At the same time, it mandated the Federal Department of Foreign Affairs (FDFA) to support the Haitian state and the Duvalier family in finding a satisfactory solution.
In 2005, the FDFA sent the parties a draft agreement supporting humanitarian projects in Haiti. No agreement ever came into being, however. Since then, the FDFA has stepped up its contact with the parties concerned several times over in an attempt to find a solution that would allow the assets to be returned to Haiti before the 31 August 2008 deadline. Discussions with the Prime Minister and Justice Minister of Haiti, as well as with other high-ranking government representatives, gave reason to believe that the country was determined to have the Duvalier assets that were in Switzerland returned and to institute criminal proceedings. This provided the necessary foundation for the submission of a request for judicial assistance. The FDFA worked together with the World Bank and the UN on this case, specifically with Louis Joinet, who was appointed by the UN Secretary General as an independent expert on the human rights situation in Haiti, and had provided active support to the Haitian government in its efforts to take legal action against the Duvaliers.
In May 2008, the Haitian authorities finally provided further information and evidence in support of its original request for judicial assistance from 1986. As announced by the Haitian President in August 2007, they confirmed that they had recommenced criminal proceedings against Jean-Claude Duvalier and other persons on the grounds of the misappropriation of public funds. They also reaffirmed guarantees that any trial will comply with human rights principles. The FOJ itself took charge of carrying out the request for judicial assistance, and ordered that the Duvalier assets be frozen. The Federal Council then subsequently resolved to lift the freeze that it had itself imposed on the assets of Jean-Claude Duvalier and his associates in Switzerland. It had extended the freeze for a final time up to 31 August 2008 after the Haitian President had undertaken to fight against legal immunity for Duvalier et al. Given the specific details and the complexity of the case at hand, as well as the historical facts on which the Haitian request for judicial assistance is based, a Swiss lawyer with experience in drawing up such applications was engaged to provide specialist support. The lawyer's fee was covered by the FDFA.
The FOJ has ruled in connection with the proceedings that the account holders have until the end of September 2008 by which to prove the lawful origin of the assets in question. Since the Duvalier clan operated like a criminal organisation in plundering Haiti's state coffers, according to the legal precedent established by the Federal Supreme Court in the Abacha case (1A.215/2005), the seizure provisions of the Swiss Penal Code can also be applied to judicial assistance cases, resulting in a reversal of the burden of proof. If the account holders do not respond within the set deadline, or if they are unable to provide the necessary evidence, the FOJ will order the assets to be handed over to Haiti. Such a ruling could then be challenged by those concerned before the Federal Criminal Court.
For the complete documentation see the pages in German, French or Italian
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