Spotlight: HC Judge Devaud strongly disagrees with AG Zappelli on Swiss case!: 'Swiss case' is very much alive in Switzerland!

After a 3-month hybernation, the NRO and its celebrated Swiss case is very much in the news again and not just in Pakistan. The question of presidential immunity has been discussed in the courts and across media over the last many months. One of our TV channels had interviewed Daniel Zappelli, the Geneva Attorney General (then dealing with the case in Switzerland in its final stages) in which the AG had unequivocally stated that President Asif Zardari enjoyed presidential immunity and the case could not be pursued further in Swiss courts.
That, people thought, was that! And the PPP appeared greatly relieved. How can we ask a court of justice in a foreign country to try our own elected President was the general lament of PPP spokespersons. The legal view in Pakistan is that the right way of going about the immunity question was for the President to bring his immunity claim before the Supreme Court, which would finally decide on the matter.
Immunity claim disputed: It has now come to light that Daniel Zappelli's conclusions about the case and about the presidential immunity for President Zardari are strongly disputed by other members of the judiciary in Switzerland. Among these is high court judge Daniel Devaud, who had initially handled the Swiss case for several years and taken it to the conclusion that money laundering had been committed. In his view subsequent closure of the case by Geneva A.G. Daniel Zappelli was not justified. There is a debate on in Switzerland about the case.
An article in the Swiss German language Magazine Beobachter (Observer) (15/2010, 23 July 2010) by Dominique Strebel deals with the controversy about the case raging in legal circles in Switzerland. The article is in German. We reproduce below a translation of extracts from the article, which should be sufficient for an understanding of the views of the case from Switzerland. The article appears under the heading: "Money Laundering, Doubts on the Geneva Attorney General"
The following are the translated extracts of article published in Beobachter (Swiss German language magazine):
Money-laundering Doubts about the Geneva Attorney General By Dominique Strebel (Then follow pictures of Asif Zardari and Benazir Bhutto with a question as follows appearing underneath - Spotlight): "Has their trial procedure been closed irregularly by Geneva's Attorney General?"Investigation records seem to give evidence that a lawyer of Geneva helped Benazir Bhutto and her husband, Asif Ali Zardari, today's President of Pakistan, to launder 12 million $ of bribes. The Geneva based surveillance company paid these 12 million US$ to Zardari as counterpart of a big contract from Pakistan, while Bhutto was Prime Minister.
This case is now since years in the hands of the Canton Geneva, but it never has been brought to defintive trial - not even now following Pakistan's Supreme Court order for the revival of all the proceedings against Zardari, including Swiss trial.
Daniel Devaud, presently judge of the Geneva High Court considers the inactivity of the prosecution authorities as very strange. During his years as Examining Magistrate in Geneva, he (DD) dealt with the Bhutto case and was able to collect thousands of documents and evidences against Zardari, Bhutto and their Swiss lawyer.
2003 sentence by examining magistrate Based on that, Daniel Devaud, in July 2003, in his capacity of examining magistrate in Geneva within his competencies awarded a up to six-month sentence by means of a judge's order, in accordance with Geneva court regulations. Thus Devaud, as a result of many years of successful investigations, was able to pass a suspended sentence of six months' imprisonment on Asif Ali Zardari and Benazir Bhutto. Their Geneva lawyer has been given a suspended prison sentence of four months; moreover Devaud ordered the confiscation of all the millions.
These sentences are based on a huge number of documented pieces of evidence as detailed in the judge's (Daniel Devaud's) order that has been provided to "Beobachter". Many letters retrace the contract negotiations, conducted by the Geneva lawyer of the two Pakistani politicians and state of payments of commission fees of several million US$. Devaud collected dozens of documents, proving the fact of regularly paid bribes between 1995 and 1997 on Zardari's offshore accounts, whereof the Geneva lawyer got his percentage.
However, legal proceedings were activated against Devaud's orders as high court judge, and finally the case landed on the table of attorney general Zappelli. As a first step, he (the AG) enlarged the investigations of the case by claiming that it was grand money laundering (and no more only simple money laundering), but then he closed unexpectedly the procedure at the end of August 2008 and released the withheld millions.
Devaud's view of the August 2008 decision From his (Daniel Devaud's) point of view, Daniel Zappelli did not act correctly in closing the Zardari/Bhutto case. It is known that in Geneva, the attorney general alone decides if a case belongs to grand money laundering category. And Daniel Zappelli is no friend of complicated money laundering cases. As a member of the right-wing party FDP, when he was elected in 2002, he announced that as prosecutor of Geneva, he will above all care for Geneva.
(ie A.G. Daniel Zappelli by declaring this to be a case of grand money laundering brought the case under his own jurisdiction and that the Swiss A.G. is not very keen - from possibly political considerations, among others - in pursuing money-laundering cases because such money is seen by some as financially helpful for the Swiss economy - Spotlight)
It is just amazing that all this happened only three days after Asif Ali Zardari announced his intention to run for Pakistan's Presidency. Zappelli's decision to close the Geneva procedure against Zardari was an enormous gift for Bhutto's husband. Indeed, in Pakistan the political situation had recently become different in a dramatic way: Bhutto came back to Pakistan and died during a criminal attempt, the reason why Zardari was back on the political stage.
An amnesty ordinance (NRO) of the Pakistan government enabled Zardari to get rid of the legal Pakistani prosecutor. The Pakistani legal assistance request presented to Swiss authorities was withdrawn and the Attorney General of Pakistan declared that the proceedings against Zardari were initiated on baseless allegations with political intentions and that no unlawful aspects could be found at all.
Case closed by AG Geneva on Pak AG intervention Based on the declaration of Pakistan's Attorney General, Geneva's attorney general decided to close the Swiss procedure. He declared that investigations in Geneva would not allow contradiction of the findings of Pakistan's Attorney General. Herewith he clearly states that in the Bhutto/Zardari case, no evidence could be found in Switzerland against them for an indictment. Hearing this, Daniel Devaud felt rather grieved. Among other observations, he declared in the "New York Time" that it is rather hard to pretend that no evidence proving corruption can be found in this case.
Daniel Devaud is not the only one to criticise things as they are. Bernard Bertossa, a former attorney general of Geneva, preceding Zappelli, dealt also with the Bhutto/Zardari case, and completely agrees with Daniel Devaud. He considers the fact of closing the Bhutto/Zardari file as an "incomprehensible decision". Already in 2002, this file/case was ready for indictment, "holding absolutely sufficient evidence to indict and sentence Zardari and his Geneva lawyer."
AG Zappelli energetically fights such critics, saying that neither Devaud nor Bertossa would know what happened after the 2003 judge's order. He states that further investigations showed that "it was not certain that Benazir Bhutto was really the economic beneficiary of the confiscated account." Moreover, a certain number of Pakistani personalities confirmed that Zardari did not take part in concluding the contract with the Geneva surveillance company and that Benazir Bhutto never considered the choice of the company as compulsory.
Unanswered questions Such a statement opens many questions: why the Geneva surveillance company got 10% of the bargain, that is to say the mentioned 12 million US$, paid on off-shore accounts belonging to the husband of Bhutto, Asif Ali Zardari, as shown by the documents filed? Why the Geneva lawyer of Bhutto and Zardari had initiated the deal and periodically collected the due fees from the surveillance company? Why a lawyer's memorandum shows that the offshore account belongs "50% AAZ - 50% BB" - that is to say half to Asif Ali Zardari and half to Benazir Bhutto? And why the clearly established evidences are not submitted for indictment?
We should not forget that in Switzerland, the prosecuting authorities run under the principle "in dubio pro reo". That means precisely that in case of doubt, it is up the court and not to the attorney general to decide whether evidences are sound and valid. Under such circumstances, an indictment seems to be inevitable. In spite of Zappelli's resistance, there are good chances that he will once more be compelled to deal with (ie reopen - Spotlight) the Zardari case. Indeed, since the revocation of the amnesty by the Supreme Court of Pakistan in December 2009, declaring it as null and void, it is eager to revive the criminal procedure in Switzerland. Zardari was a beneficiary of NRO and now that is no more the case.
Only half the truth is told When speaking to international media, Zappelli has said earlier that the Zardari file cannot be re-opened as Zardari, as acting President of Pakistan, is under immunity protection. With such a statement Zappelli, however, tells only half the truth: as a matter of fact, the Geneva lawyer of Zardari who once handled the whole deal, as shown by the filed investigation documents, and who got large profits out of it, could very easily be indicted by the attorney general of Geneva - until 2012, when the latest criminal act lapses.
We may ask if the attorney general of Geneva is handicapped by strong pressures when facing lawyers and financial actors of the city of Geneva. That suspicion has already occurred in another case. Zappelli considers such a reproach as totally ridiculous. He says that all are on equal terms before law and duty. "That is my way of handling criminal policy, excluding political influence on legal matters", he claims.
(This implies that according to the article, Attorney General Zappelli is reluctant to pursue money laundering cases too vigorously to thus ensure that the tainted money is not returned to the rightful owner and remains in Swiss Banks to the financial benefit to the Swiss economy - Spotlight)
It is up to the supervisory authority of Geneva to judge Zappelli's way of handling the Bhutto/Zardari/Geneva-lawyer case. Since the end of December, this authority has filed information reproaching Zappelli on his inaccurate handling of the procedure.
SPOTLIGHT:
It may be concluded from the above that:
1) The Swiss case is still under discussion and controversy in Swiss Courts.
2) A high court judge who had worked on the case for several years had come to the conclusion that there was sufficient evidence to indict the accused.
3) The case was transferred to his own jurisdiction by the Geneva AG Daniel Zappelli by his reclassification of the case as a Grand Money Laundering case and not an ordinary money-laundering case.
4) The matter is now being looked into by the Supervisory Authority in Switzerland and the case is by no means finally closed.
5) To conclude, the closure of the case does not appear to be justified and a reopening of it is without any doubt possible.
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