Switzerland: Seizure And Confiscation Of The Proceeds Of Money Laundering Activities - Part I

The Swiss Federal Act on International Assistance in Criminal Matters (IMAC-January 1983).

OBJECT AND METHODS OF ENFORCEMENT OF INTERNATIONAL ASSISTANCE.

Apart from the multilateral Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the proceeds of crime (Strasbourg 1990), Switzerland is also a party to several bilateral mutual legal assistance treaties.

But international assistance in criminal matters is primarily ruled by domestic law: The Swiss Federal Act on International Assistance in Criminal Matters (IMAC- in French EIMP, Entraide Internationale en Matiere Penale - January 1983).

IMAC is made up of 5 sections which cover all areas of international judicial assistance:

1. the conditions of admissibility of the foreign request
2. the extradition of persons criminally indicted abroad
3. the investigation and transmission of information to the foreign authorities
4. the delegation of powers to the foreign authority for the proceedings and sanction against criminal actions
5. the execution in Switzerland of foreign sentences.

IMAC is by default applicable whenever and wherever the other multilateral or bilateral agreements on international assistance do not rule otherwise or when there is no treaty between Switzerland and another country.

But even when such treaties exist, they rarely prescribe in detail the practical procedures for dealing with a request for assistance. They generally refer to the domestic law of the requested country, IMAC in the case of Switzerland.

The scope of application of IMAC is similar to that detailed in the description of the 1990 Council of Europe Convention: the existence of a criminal investigation in the requesting country, a commitment of reciprocity from the requesting country, the existence of an offence which is equally punishable under the Swiss and the foreign law in question, a proportion maintained between the request and the charge against the offender, the use of the requested information only to investigate the specific offence for which the request was made. According to IMAC, the absence of any of these elements constitutes a reason for denying assistance.

REQUIREMENTS CONCERNING THE CONTENTS OF THE REQUEST FOR MUTUAL ASSISTANCE IN CRIMINAL MATTERS (Source: checklist for foreign requests for mutual assistance issued by the Federal Office for Police Matters in Bern):

The request must be in written form, and, if it is not drafted in one of the three official languages of Switzerland, i.e. Italian, German or French, it must enclose a translation in one of those languages. It must contain the following indications:

1. The legal base of the request: Council of Europe Convention, bilateral treaty, declaration/agreement on reciprocity.

2. The requesting authority: Who is the investigating/prosecuting authority in the requesting country ? By which authority is the request issued ?

3. The object of the request and what establishes its criminal character in the foreign proceeding ?

4. The target of the proceeding: complete identification data of the person(s).

5. Summary and legal qualification of the facts.

6. The reasons for the request: Link between the foreign proceeding and the request. Details of the evidence sought. Description of the actions requested (freezing of funds, surrender of documents, interview of witnesses etc.). In case no agreement exists with the requesting country, the latter has to prove that the requested measures would also be applicable under its own domestic law.

Exceptionally, the requesting country may ask that the foreign law be applied to execute the request (the legal prescription has to be reproduced in the request). It can also ask that parties to the foreign proceeding be present at the execution of the request (the identity and the status of these persons have to be stated). In both cases, the need for these exceptional procedures has to be established.

TRANSMISSION OF THE REQUEST

Where there is no agreement or treaty signed with the requesting country, the request is normally transmitted through the diplomatic channel to the Federal Office for Police Matters (FOP) in Bern.

Signatories to the European Convention channel their requests through their respective Ministries of Justice. In Switzerland, the competent authority is the FOP. In some cases when parties to the European Convention have signed complementary agreements, as for instance the ones that Switzerland has signed with Austria, Germany and the Liechtenstein, the judicial authorities of both countries can address their requests directly to each other. In some particularly urgent cases, the transmission of the original of the request through the usual channels can be complemented by forwarding a copy to Interpol or directly to the executing authority.

ROLE OF THE FOP

Switzerland is a confederation of states (cantons). When the facts described in the request fall within the competence of a federal authority (for instance the Swiss customs), then this authority has to execute the request or pronounce on its admissibility. Otherwise, the FOP, after making a formal review of the request, passes the request on to the canton where the acts of assistance requested have to be executed.

But this does not mean that the role of the FOP is limited to that of a mail box. The FOP is responsible for making sure that the IMAC is respected when applicable. It has a consultative role when information covered by the secrecy ruling is collected on non indicted persons, or when information has to be used in other proceedings than that of the request. It can decide to take provisional measures when a request is only announced and not yet officially introduced. As is often the case when accounts have to be blocked in several banks, assistance has frequently to be granted by several cantons. Then it is up to the FOP to designate a lead canton, who will decide on the admissibility of the request and further organise and co-ordinate the actions with the other cantons involved. And lastly, the FOP has a more extended role in the cases of assistance between Switzerland and USA or Australia, which are ruled by bilateral treaties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

For any further information on this topic, please contact Deloitte & Touche SA, Geneva, Marie-Christine Chalon, Senior Manager in charge of Fraud Prevention and Fraud investigations (41-22-788 02 46).