- Govt’s Swiss attorney says case not time-barred, suggests future strategies after necklace verdict as Geneva prosecutor terms repatriation of jewellery ‘preferable’
- PPP denies necklace is property of late Benazir Bhutto and Asif Zardari
Even though the Pakistan People’s Party (PPP) has denied that former prime minister Benazir Bhutto owned the valuable jewellery set currently in custody of Swiss authorities in the SGS case, the Geneva Federal Tribunal’s Court of Appeals verdict suggests that the legal owner of the expensive necklace was PPP Co-chairman Asif Zardari or the “death estate [sic] of late Benazir Bhutto” and has suggested repatriating the set to Pakistan, Pakistan Today has learnt.
The government of Pakistan received the translated version of the verdict on Nov 10, and Law Ministry officials have exchanged notes with the government’s attorney in Switzerland on the status of the case and the options available to deal with the issue.
Zardari’s spokesman Senator Farhatullah Babar told Pakistan Today that the former president’s counsel had already informed the Geneva tribunal that neither Benazir Bhutto nor any of her heirs had anything to do with the necklace. He said that there was no change in PPP’s stance after the verdict.
TRANSLATION OF JUDGEMENT:
In a letter sent to the federal secretary of law, François Roger Micheli, the government’s lawyer from Python & Peter pleading the case in Geneva, told the Attorney General for Pakistan: “We hereby transmit you the judgment of the Federal Tribunal (“FT”) of 29.10.2014, which rejects the ultimate recourse filed by Bomer Finance Inc [the company representing Asif Zardari and Benazir Bhutto]. The FT followed our line of argument and confirmed the decision of the Court of Appeal of Geneva.”
“The tribunal also decided that Jens Schlegelmilch, the board member of Bomer Finance Inc. had acted as the attorney for both Asif Ali Zardari (AAZ) and Benazir Bhutto (BB) – a fact contradicted by PPP leadership.”
“The gist of the attached decision is: Bomer Finance Inc. has not proven that it is the legal owner of the jewellery set. The FT adds that Jens Schlegelmilch has not proven that he acted in a capacity as board member of Bomer Finance Inc. when negotiating and acquiring the jewellery set; he appears to have acted as the attorney for the BB-AAZ couple. The FT adds that its analysis would be the same, even if the balance of the purchase price of the jewellery set had been paid from the account of Bomer Finance Inc.”
“The FT suggests that the legal owner of the jewellery set is AAZ, or the death estate of BB. The task you had given us is done, and the objective has been reached. The next significant steps are the confiscation of the jewellery set, its realization and (assuming Pakistan is interested) the repatriation of the proceeds there from to Pakistan. Please advise if we are to make endeavours towards that ultimate objective,” the letter stated.
ANOTHER LETTER, FUTURE STRATEGY:
In another letter sent on Nov 25 by the government’s attorney, Micheli told the AGP as a first reply that the material particulars of the case at hand were such that there was no obvious legal answer, nor any reliable precedent, with respect to deadlines for taking action.
“However, and in general, it is obvious that every route becomes increasingly difficult to implement as time goes by. I have made a preliminary legal research, and spoken (off the record) this day with the prosecutor in charge of the matter. We have exchanged views. The ways forward we contemplated, are the following,” stated the letter.
“Confiscation in the context of the Swiss penal proceeding: In practical terms, this route implies that (i) the jewellery set is confiscated in Switzerland, and thereupon (ii) that it is sold at public auction upon instructions by the Geneva Prosecutor’s office (this is standard procedure), and thereafter (iii) that the proceeds of the realisation of the jewellery set are shared between Pakistan and the Swiss authorities. This route is legally conceivable,”
CASE NOT TIME BARRED:
The letter continues to state, “From a legal point of view, time-bar is a complex (but not absolute) legal problem. To solve it satisfactorily, it would probably be necessary: (i) to consider that the predicate offence is not the money-laundering (which was prosecuted in Switzerland), but the predicate offence thereto (which was committed in Pakistan). By doing so, the relevant time-bar would not be the one according to Swiss law, but the one according to Pakistan law. I was given to understand that there is no time-bar under Pakistan penal law with respect to offences committed by public officials. (ii) to consider that the (relatively recent) acquittal of Asif Ali Zardari in Pakistan is not an obstacle to confiscation of assets beneficially belonging to him. The answer to this point depends on the content of the acquittal judgment, which is currently not available to me.”
Micheli continues to write, “From a practical point of view, matters may be simpler since the PPP spokesperson has stated (Dawn of 24.11.2014, internet version) that neither Benazir Bhutto, nor her heirs, nor Asif Ali Zardari own the jewellery set. The Geneva court of appeal has already ruled that Bomer Finance Inc. cannot have acquired any legal ownership rights over the jewellery set. Thus, one has difficulty in seeing who could oppose or dispute a confiscation.”
“Economically speaking, it is not the most advantageous route for Pakistan (possible costs of the procedure, auctioneer’s commission, sharing of confiscated assets between various authorities). It is probably also not the quickest route: count roughly one to two years until assets are actually repatriated to Pakistan.”
REPATRIATION OF THE JEWELLERY SET:
Exploring further, the attorney writes, “In practical terms, this route [repatriation] implies that Pakistan requests, by way of mutual legal assistance, that the jewellery set be handed out to it in view of confiscation by the authorities/courts of Pakistan. This route is viewed by the Geneva Prosecutor as preferable.”
“From a legal point of view, it requires that Pakistan makes a mutual legal assistance request, demanding that the jewellery set be remitted to Pakistan in view of its confiscation by its local authorities/courts.”
“Relatively minor (Swiss) legal hurdles also need to be overcome here. With respect to the legal system of Pakistan, it implies that Pakistani authorities have the power to confiscate the jewellery set. While we obviously cannot advise on the latter issue, I take the liberty of drawing your attention to the following: I understood that the conjunction of art. 31A NAO and 87-88 CrPC allows to confiscate assets of a proclaimed offender. I also gathered on the Internet that Jens Schlegelmilch was declared proclaimed offender in 2011 (the proclamation itself is however not available to me).”
“From a practical point of view, the route may be simple, since the PPP press statement referred to hereabove. There are some formal points to mind with respect to the wording of the mutual legal assistance request, to avoid that the Swiss authorities revert to their counterpart in Pakistan to seek clarification. Assuming it is done properly, the request should lead to the remittance of the jewellery set within (roughly) a few months.”
“It would allow the authorities of Pakistan to already have possession of the jewellery set, pending the confiscation to be ordered by the authorities/courts.”