Haiti - Duvalier : Switzerland and the illicit funds of "Baby Doc"
On 11 February 2009, the Federal Office of Justice (FOJ) decided that the Duvalier assets should be returned to the people of Haiti. An appeal was lodged against this decision but the Federal Criminal Court upheld the FOJ’s decision on 12 August 2009, declaring that the structure put in place by the Duvalier clan "clearly constitutes [...] a criminal organisation" and that "the deposited assets [...] are of criminal origin; consequently, they must be placed under review for confiscation by the receiving State." The lawyers representing the Duvalier clan appealed to the Federal Supreme Court against the judgement of 12 August 2009. In its judgement of 12 January 2010, which was made public today, the Federal Supreme Court overruled the decision of the FOJ to return the assets to the Haitian people primarily on the grounds of the statute of limitations. In that way, the Federal Supreme Court did not call into question the judgement of the Federal Criminal Court concerning the criminal origin of the assets.
In view of this situation, the Federal Council has been looking for a way to avoid allowing the assets to return to the Duvalier family who acquired them by illicit means. The assets of the ex-dictator dictator Jean-Claude Duvalier totalling about CHF 6 million have again been frozen by a Federal Council decision of 03.02.2010. Following the judgement of Swiss Federal Court dated 12.01.2010, which put an end to the mutual legal assistance between Haiti and Switzerland, this freezing order has avoided a return of the assets to the Duvalier family. The freezing remained in force until the entry into force of the Act on the Restitution of Illicit Asset (RIAA). This law was accepted by Parliament in the autumn session 2010 and is entered into force on 1 February 2011. The Duvalier assets has then been frozen on the basis of article 14 RIAA. The Confederation will take legal action before the Federal Administrative Court to enable frozen assets to be forfeited. Once confiscated, the assets will be returned to Haiti in order to improve the living conditions of the Haitian people.
This is a positive point in the restitution of illicit assets of Duvalier, however, this amount seems modest in relation to the amounts raised in a study of the Catholic Committee Against Hunger and for Development (CCFD) in which Transparency International estimated the diversions between 300 and 800 million dollars while the United Nations Office against Drugs and Crime estimates them between 500 million and $2 billion... Obviously, these amounts (or what remains of it) does not seem to affect the Switzerland banks. As for knowing where the money is... this is another matter...
Learn more about the new law (RIAA) :
The Federal Act on the Restitution of Assets of Politically Exposed Persons obtained by Unlawful Means (RIAA) came into force on 1 February 2011. The new act governs the freezing, forfeiture and restitution of the assets of politically exposed persons and their close associates in cases where a request for mutual assistance in criminal matters cannot produce an outcome owing to the failure of state structures in the requesting state. The RIAA provides a solution that is subsidiary to the Swiss Federal Act on International Mutual Legal Assistance in Criminal Matters. It provides for an alternative solution to that of criminal proceedings for the restitution of assets in that it makes possible the confiscation of assets that are clearly of illicit origin without need for the prior conviction of the PEP concerned.
To accomplish this, the Federal Council can instruct the Federal Department of Finance (FDF) to take legal action before the Federal Administrative Court for the forfeiture of frozen assets. The subsequent judgement, against which an appeal can be submitted before the Federal Supreme Court, permits if necessary the forfeiture of assets of unlawful origin which have been frozen pending their restitution to their state of origin by means of a transparent procedure, unless the legal origin of the assets has been demonstrated by the PEP.
The assets thus forfeited will then be returned by the Confederation to the country of origin for the benefit of the population through the financing of programmes of public interest. The application of this law will help to strengthen the rule of law and to combat impunity. It is in the fundamental interest of Switzerland that such assets of criminal origin not be invested in the Swiss financial centre.
https://www.haitilibre.com/article-305-haiti-justice-haiti-va-t-il-enfin-recuperer-l-argent-de-bebe-doc.html (in french)