Asset recovery imposes the highest demands on the lawyers working in this field. The criminal assets have to be tracked in different jurisdictions and the criminal origin has to be proven. A successful representation requires your lawyer to have worked in this difficult field for several years and to be able to offer models for even more efficient solutions.
Asset recovery cases are often politically sensitive – in the country where the bribery happened as well as in the country where the money is being hidden. We take into account the political and cultural realities in the affected countries in order to able to represent you successfully.
Claimants are often faced by perpetrators with unlimited financial means in asset recovery cases. We are familiar with the challenge of dealing with a wide range of advocates and opposing them with limited resources.
The Swiss law enforcement agencies perform professional and important work combatting corruption. International cooperation works well and is successful in many cases.
However, Swiss regulations for legal aid and the possibilities of collaboration are often insufficient and inefficient – not only during investigations but also in terms of Asset Recovery.
The law enforcement agencies' primary mandate is to detect corruption and to bring the criminals to justice. Often, compensation for the losses is neglected, most notably the return of assets to the victim states.
Punishment of the criminals and fraudsters must not be the whole game plan. The emphasis must be put on recovering the corruption proceeds from those who illegally enriched themselves. This money must be returned to the victims, the affected public institutions.
States and state-owned companies victimized by corruption are dependent on the goodwill of those governments where the stolen assets have been hidden. If bribery proceedings are discovered in these countries, the monies of the bribes are identified, seized as fraudulent and later confiscated.
Asset recovery efforts currently use:
a) the process of collaborative legal assistance; or
b) independent investigations in the states affected by corruption (including the ones where the bribe is deposited).
Governments suspecting bribery funds are deposited in Swiss accounts can apply for collaborative legal assistance in Switzerland. Switzerland is bound by international obligations and will provide assistance to the affected States, i.e. upon request, it will provide evidence and will seize suspicious assets in the legal assistance procedure.
The problem: Due to the outdated (over)regulation of collaborative legal assistance foreign governments’ efforts for indemnification by means of legal assistance are often derailed, delayed and sometimes made impossible because of undue process.
In case of corruption transactions via or transfers into Swiss accounts, Switzerland is legally obligated to open criminal investigations as soon as probable cause is apparent. Suspicious funds are seized in the Swiss criminal investigation and, in case of a conviction, are forfeited for the benefit of the treasury.
Upon request, the Swiss Justice Department has discretion to turn over parts of these forfeited assets to the victim states. Compensation is often limited or zero.
States, governmental organizations and state-owned companies victimized by corruption are justifiably entitled to compensation for the damage caused by corruption. Fulfillment of this entitlement is not always known, although legally mandated by various national and international bodies of regulation. Notably:
a) UN Convention Against Corruption (UNCAC)
b) Swiss Penal Code (PC)
c) Swiss Criminal Procedure Code (CPC)
In accordance with art. 53 UNCAC, affected states or their institutions must be permitted to initiate civil action in courts of signatory states to establish their claim. All signatory states are therefore required to permit other state parties' legitimate claims in their courts for compensation for their losses suffered because of corruption and to take into account such compensation claims when confiscating these assets.
Illegal assets can only be confiscated if they don't have to be returned to the claimant to reestablish rightful ownership (art. 70 para. 1 PC). Compensation for the claimant has therefore precedence over confiscation, which means the Swiss penal law recognizes precedence of claims.
Art. 118 CPC concedes the right to all harmed persons or companies to expressly declare the wish to participate in the criminal proceedings as civil claimants in the criminal or civil case. It's been recorded in numerous decisions of superior courts that foreign state parties, public institutions or government-owned companies that have been affected by corruption can invoke the right too to directly participate in these criminal procedures.