The Duvalier affair started in 1986 when the Haitian authorities submitted a first request for international judicial assistance which required Switzerland to block the assets of the ex-president of Haiti, Jean-Claude Duvalier. Since then, these funds have remained blocked in Switzerland either within the framework of international assistance in criminal matters or on the basis of the Federal Constitution.
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. In pursuing its policy to avoid allowing the Swiss financial centre to become a haven for illicitly acquired assets, the Federal Council has decided to continue the freeze on the Duvalier assets on the basis of the Federal Constitution. Moreover, it considers it necessary to respond to the issue of assets of politically exposed persons by means of a specific law.
To this end, the Federal Council is planning in the near future to open a consultation procedure to consider a draft law governing the confiscation of illicit assets. To do this it has instructed the FDFA to finalise the text of a law it has been drafting following a parliamentary intervention (07.3459, Gutzwiller Felix: International judicial assistance with “failing states”). In this way, Parliament will soon be able to give its opinion on the matter and decide on the fate of the Duvalier assets.
Lars Knuchel, Head of Information FDFA, +41 31 322 30 21
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