JUDGMeNT BY THE SWISS FEDERAL SUPREME COURT 49.pdfThe examining magistrate in Geneva adapted ~he mutual assistance orders· issued by him to the Supreme Court judgments of December

... 12 " ~ .. " 97 W 'D 10: 58 FAX

KOHN SWIFT GRAF PC

JUDGMeNT BY THE SWISS FEDERAL SUPREME COURT lA.87/1997/err

1st Court of Public Law •••••• ** •• ****.* ••••••

December 10. 1997

Contribueing judges: ·Supreme Court Justice Aemisegqer;

president of ehe 1st coure of Public Law, Supreme Court Justices F6raud, Jacot-Guillarmod. Catenazzi, Fav~e, a~d court Clerk Gerber.

in re:

Federal OfficI for Police Matters, International ~~:~a~

ASslstance Division, appellane,

versus

represented by Peter :.

Merz, Ateorney at Law, Bellerivestrasse 201, Zurich,

appellee,

District Attorneys' Office IV for the Canton of zu:-!.':'~. Office 1, Public Prosecutor's Office for the Canton of Zurich. Supreme Court of the Can~on of Zurich, 3rd Crimi~a! Chamber

Republic of the Philippines, represented by Dr. Ma!""~:;i Kurer, Aetorney at La~, Walde~ Wyss & Partners. Munstergasse 2, Postfach 4081, Zurich,

regarding

mutual assistance to ehe Republic of the Philippi~~~.

~009

University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection

1~/24/97 WED 10:58 FAl KOHN. SWIFr GRAF PC

- l .

the following has been found:

A.-·In April 1986, the Republic of the PhilipPlnes requested mutual assistance from the Federal office for Police Matters (FOPM) in connection with the recovery or assets that Ferdinand Marcos, his family members, ar.d persons close to him are said to have appropriated unlawfully in exercise of their public functions. The practices through which they are said to have wrongful:y

diverted funds to the detriment of the Philippine population include holding back a percentage of international aid funds and Japanese war reparation payments, creating state monopolies that were controll~d by Marcos and his followers, and directly removing assers

from the public treasury and from the state's gold reserves. Some of the illegally acquired assets are salO

to have been moved to Switzerlana. For this reason, Switzerland was asked to inquire into such aeeoun~s at the banKs, to provide obtained information and records to the Philippine authorities, and to take the necessary measures to secure the assets so that they could

ultimately be returned to the Philippines.

Based on this request for mutual assista~ce. the following orders were handed down in the Canto~s cf Zurich, Fribourg, and Geneva:

On April 22, 1986, the examlnlng magis:rnLe in Geneva ordered a freeze on assets 0: ferdinand Marcos and his family at va~:o~s financial instituti6ns in GenEva, inc:~d~~g' assets of ~he foundations . and of . at

. in Geneva. On Marc~ 8, 1987, ·he ordered that the assets held !or. :~I~ aforementioned foundations and in be frozen until a decision is reached by ~~~ competene Philippine criminal court.

@OlO


12/24 / 97 WED 10:58 FAX KOHN SW I FI' GRAF PC

- 3 -

On June 8, 1988, the exam~n~n9 magistrate in the Sarine District ordered the surrender of the ~ocuments submitted by the -

in Fribourg regarding the and the liquidated

and also ordered that the assets frozen in the corresponding accounts be kept at the disposal of the competent Philippine court.

- Wit.h orders of September 26, 1989, Oecetnbe:-6, 1989, and January 1 and 2, 1990, the Zurich District Attorneys' Office ordered that the documents obtained from .

. in Zurich regarding foundations, including

, be providea to the requesting authority and approved in principle the surrender of asset.s on deposit at i~ specific customer accounts.

The appellate rulings on the orders by the F~ibour9 examining magistrate and the zurich District Attorneys' Office were further appealed to the Supre~e Court by the heirs of Ferdinand Marcos, who died on September 28, 1989, and by Imelda Marcos, the

and the On December 21, 1990, ~he Federal sup:e~e

Court handed down two consistent judgments; one rela~es

to the orders by the examining magistrate of the Sar~ne District (published in BGE 116 Ib 452 ff), the other :~e orders by the Zurich District Attorneys' Office. 7he Federal Supreme Court approved the turnover of the =a,~k records obtained at and

under the condition that the requesting stat.~ ~as issued an explicit and unequivocal statement declar~r.g that it agrees to grant the accused the minimum guarantees accorded by the S~iss Federal Constit~t1o~ and t.he European Human Rights Convention and to comply w: r.f: the specialty principle set out in Art. 67 !MAC.


12/2.£,'97 WED 10:58 FAX KOffi~ SWIFT GRAF PC

- 4 -

In addieion. the Federal Supreme Court approved ir.

principle the surrender of the assets distrained at 'W and at although it suspended

enforcement until a final and enforceable judg~@nt had been handed down by the Sandiganbayan or another Philippine court that is legally competent in criminal matters regarding the restitution of these monies :0 :~a entitled par~ies or regarding their forfeiture. In this regard it issued the following orders (in the German-language version of the judgment) :

"If the requesting state wishes to i:"lstit~l~e proceedings to this end, then it ~us~ do so within a period of no more than one year of the rendering of today's Federal Supreee Cour: judgment, barring which the distrain~ of the deposits shall be lifted ~t the request of t~e affected parties. Such proceedings must moreover satisfy the requirements of Art. 4 Fe·. 58 Fe·, and 6 ECHR··.

It is further ruled that prior to the enforcement of any ruling on the restit~::on 0: the monies to the entitled parties or O~ :~e:r forfeiture, the authorities of the requestir.g state shall ensure that said ruling was :eacr.ed in proceedings that satisf~ the aforemen~lor.en formal requirements and that their cor.~e~t is not in violation of the Swiss ordre p.u~lic."

The examining magistrate in Geneva adapted ~he mutual assistance orders· issued by him to the Supreme Court judgments of December 21, 1990.

On January le, 1991. the bank records were turned over to the Philippine Embassy in Bern. wi:~ :ts order of May ~3, 1991, the FOPM designated the Can~o~ ~! Zurich as ehe leading canton under the meaning of t~~ Mutual Assistance Act, and thus as competen~ for ~~c decisions to be reached in the M,rcos mutual assis~an=e

• Federal Constitution

•• European Convention on Human Rights

raJ 012


12/2·1/97 WED 10: 59 FA! KOHN SWIFT GRAF PC

- 5 -

matter following the Federal Supreme court judgmen~s of December 21, 1990 (cf. BGE 119 Ib 56 ff). The Zurich Dis~rict Aetorneys' office established with the order of February 6, 1992 that the six indictments (against Imelda Marcos- Romualdez) tha~ had in the meantime been brought before the Sandiganbayan mean~ that within one year . . proceedings had been initiated before a competent court

which could result in a judgment against the accused. The accused had moreover been given the opportunity for unrestricted participation in the trial. This order was

not contested.

~ On August 10, 1995, the Republic of the Philippines submitted an "additional request for mutual assistance 11 from the Presidential Commission on Good Government (PCGG). In the request, it is demanded that the assets frozen in Switzerland be transferred in advance, i.e., before a final and conclusive Philippine ruling is handed down, to an "escrow account" at the Philippine National Bank.

The Zurich District Attorneys' office gran~ed this request and ordered the advance surrender of the assets, to which Imelda Marcos and the heirs of Ferdir~ar.d Marcos are formally or economically entitled, to the

requesting state. In so doing, in three separate orders of August 21, 1995 it instructed each of the banks :n question ~ i.e., the . in Fribourg, and

in Geneva,

in Zurich - to liquidate all money market investments a~d precious metals held in specific customer accounts and t~ transfer the proceeds to corresponding accounts designated by ~he Philippine Nationa~ Bank (PNB) a~d approved by the Zurich District Attorneys' Office.

1lJ01J


KOHN SWIFT GRAF PC

• 6 •

Furthermore. the banks in question were ordered to effect the transfer of the securities and similar inscruments (incl. warrants and options) held in the customer· accounts to corresponding securities accounts designated· by the PNB and approved by the Zurich District Attorneys' Office, and to provide to the District Attorneys' Office the corresponding records on the liquidation of ~he individual items and their transfer. Finally, the banks

in question were notified that the surrender of the assets was being effe~ted within the framework of the' obligations of the Republic of the Philippines and of the PNB pursuant to the escrow agreement of August 14. 1995. The District Attorneys' Office established that the assets may be invested only in money market investments and securities if the debtor or company has a rating of at least "Mit according eo Standard ~ Poers, and that furthermore the sale of options is permitted only if existing securities items are already covered with them.

C.- The following appealed the orders by the District Attorneys' Office of August 21, 1995 before tr.e Supreme court of the Canton of Zurich:

- the Marcos estate and Imelda Marcos·Romualdez.

- the

- the

- the ' and

- the attaching creditors Anderson, Hibey' & Blair,

- the attaching creditor Golden Budha Corporation,

- the

the .r" •

'; '-:; .. '

~ .

f4J 014


12/24/97 WED 10:59 FA! KOHN SWIFT GRAF PC

·7-

On February 20, 1997, the Supreme Court handed

down nine rulings. The Supreme Court refused to hear the appeals of the noted banks for lack of standing- Based on the appeals of the other appellants, it reversed the orders of the District Attorneys' Office of August 21, 1995. The Supreme Court deemed it appropriate to uphold the conditions which must be met prior to a transfer, as set out by the Federal Supreme Court with ehe judgments of December 21, 1990. It moreover ruled that in the eve.n~ of a transfer of the assets within the framework of the noted escrow a9ree~ent of' August 14, 1995, there would exist the danger that mutual assistance would be provid~d in an unacceptable manner for proceedings that do noe serve to support criminal 'proceedings, but rather the distribution of assets by a mer'e administrative authority.

D. - The FOPM filed an administrative law appeal w~ t i-: the Federal Supreme Court against each of the six sanctioning appeal rulings by the Supreme Courc. ~t petitions that the contested rulings be reversed a~d ~.ha~ it be established that the condit~on established witn ~~e Federal Supreme Court judgments'of December 21, 1990 (concerning a final and enforceable Philippine jud9men:~ no longer applies to execution of the surrender of the assets. As a contingency, it is petitioned that ~he surrender of the assets frozen in Switzerland be execu:eci without delay, with the exception of an appropri,dte s::a:-e 'to be established by the Federal Supreme Court.

In the present case, the aaministrative law appeal is directed against the appeal ruling handed d~wr. in response to the appeal by The latter petitions for dismissal of the administrative court appeal and presents the following contingent requests:

@015


12/24/97 WED 10:59 F.~\ KOHN SWIFT GRAF PC

- 8 •

112. Contingenc'l: that the advance surrender of th~ assets of the appellee to the Republic of ~he Philippines be ordered only under che cumulative preconditions,

that the Republic of the Philippines pro~ide" security for the full amount of any rest\tutlOn claims by the appellee;

that this security be provided prior to the surrender of the assets and through a guarantee by a Swiss bank or the deposit of securitlesi

that the Republic of the Philippines be required to dispose o~er the surrendered assets only if a final and enforceable judgment on the matter has been handed down by the Sandiganbayan or anoeher Philippine court legally competent in criminal matters, such proceedings satisfy the requirements of Art. 4 Fe, 58 Fe, and 6 ECHR, and the s~iss enforcement authorities have examined such proceedings and subsequently ascertained that such a ruling does not violate the Swiss o~d~e public, whereby all of this must be confirffied" to the Republic of che Philippines in wri~ir.g;

that ~ithin seven years of the rendering of the Federal Supreme Court judgment the Republic of the Philippines conclude the proceedings :h~r.e regarding forfeiture or surrender to the entitled parties with a final and enforceable judgment and that it submit said judgment ~c the S~iss enforcement authorities so that it can be examined for satisfaction of ehe forma: requirements ordered above, barring which :he surrendered assets of the appellee are retur~ed to it or the security is declared forfei:ed to the appellee;

chat all of these conditions be communica~ed ~o the Republic of the Philippines in a forrr.a: diplomatic note, which shall acknowledge its receipt in like manner.

3. Contingenc~: that any advance surrende~ of assets be liMited in scope co no more thill1 90%.11

@016


1~/2"/97 WED 11:00 FAX KOHN SWIFT GRAF PC

·9-

The District Attorneys' office, the Public Prosecutor's Office, and the Supreme court have renounced to file an opinion. The Republic of the Philippines supports the appellant's motion.

The Federal Supreme Court considers the following:

~- a) Onder Art. 25, Para. 1 of the Federal Act on International Mutual Assistance in Criminal Matters of March 20, 1981 (IMAC; SR 351 .. 1), orders by cant.onal authorities of last resort are subject to administrative law appeal to the Federal Supreme Court unless the law stipulates other~ise. The law contains a special regulation regarding the area of so-called minor mutual assistance (Art. 63 ff lMAC): According to Art. 80f lMAC, in the applicable new version of October 4, 1996 (cf. Art. ll0a lMAC; aGE 123 II 153 E. 1 pp l55 f), only cantonal rulings of last. resort with which mutual assistance proceedings are terminated are subject to administrative law appeal to the Feder~l Supreme Cour:. Interim orders can be contested separately with administrative law appeal only if they effect a'di'rect: and irreparable disadvantage. Under Art. 80e Letter b lMAC, this must result from the distraint of assets and valuables (No.1) or from the presence of persons involved in a foreign action (No.2).

b) The subject matter of the present mutual assistance proceedings is the request for mutual assi5tance submitted on August 10, 1995 by the Philippines. Although this relates to the earlier

141017


12/24 / 97 WED 11:00 FAX KOHN SWIFT GRAF PC

• 10 -

Philippine request for mutual assistance. it is based in part on new facts and contains new motions. Thus, as the Supreme Court has ruled, it is not simply an additi,on and, improvement to an earlier request, but rather an entirely new request. The district attorney approved the request and ordered the advance surrender of the assets to the Philippine state in three orders. These orders were reversed by the Supreme Court. The deliberations of the Supreme Court indicate that it did not consider the new Philippine request for mutual assistance worthy (,)f approval and that it ultimately rejected it. Thus, the Supreme court ruling constitutes a negative, fjnal ord~I'

by the cantonal court of last resort regarding the request for mutual assistance of August, 10, 1995, which under Art. 80£ Para. 1 lMAC is subject to administrative law appeal before the Federal Supreme Court.

c) According to Art. 25, Para. 3 and Art. 6Ch, Letter a lMAC, the Federal Office is authorized to act as appellant. Since the other preconditions for hearing a~ appeal are also met, the administrative law appeal ~ust be heard.

d) Under Art. 25, Para. 6 IMAC, which as a special prOVision takes precedence over the general prOvisions of Art. 114, Para. 1 OJ-, the Federal S~preme Court is not bound to the petitions presented by the parties. Thus, it has the option of modifying the contested ruling eo the benefi~ or detriment of the appellant. In proceedings on an administrative cour: appeal, it applies federal law and the relevant prOVisions of international law (BGE 123 II 241 E. 39 P 245) ex officio. Since a cantonal coure has ruled as a lower court, che Federal Supreme Court is bound in principle eo its ascertainment of the facts (Art. 1~S. Para. 2 OG; Art. 80i lMAC).

• Federal Act on the Organization of the Fede=al Judiciary

IaJ 018


12 " 2 " " 97 WED 11: 00 FA .. \: KOHN SWIFT GRAF PC

- 11 -

~ The subject matter of the present mutual assistance proceedings is, as established above (E. 10), a new request for mutual assistance by the Philippines,

which is not identical to the previous request. In analogous fashion, however, an amendment of the Fede~al Supreme Court judgments of December 21, 1990 is demandc.d with the request for advance surrender of the secured assets. Therefore, one question that arises is whether the finality of those judgments bars an examination o[

the new request.

As the Supreme court has repeatedly held, tr.P. . concept of res judicata is accorded only a very li~ited significance in the area of mutual assistance (BGE ~21 ~r

93 E. 3b P 95: III Ib 242 E. 6 P 251; 109 Ib 156 E. 3h P 157). Mutual assistance proceedings are administrat:ve

proceedings with international bearing. In general, t~e

immutability of an order tends to be the exception ~~

administrative law (BGE 109 Ib 156 E. 3b P 157). According to the precedents of the Federal Supreme C~~:':". a decisl.on on mutual assistance that. was not renae:-ed by a judicial authority can be modified like any othet' administrative order if it proves to be contrary to the law and such a change is not barred by interests ~er~tl~3 protect ion (BGE 121 I I 93 E. 3b P 95). As a ru1.e, t ::~rp.

exists no interest meriting protection in the def~n:t~~~ refusal of mutual assistance

12/24/97 WED 11:00 FAX KOHN SWIFT GRAF PC

... 13 -

assis~ance decisions and the interest in international cooperation in the area of criminal prosecution that is as extensive as possible would speak in favor of such a view. However, chis question need not be decided in the present case:

Xt must first be noted that with the Federal Supreme Court's judgments of .December 21, 1990, the request by the Philippines for restitution of the distrained assets was not,rejected, hut rather approved in principle; the execution of the asset transfer was simply suspended until a final and enforceable j~d9ment " had been rendered by the requesting state. The Philippines justifies its request for advance surrendet" of the monies by arguing that since the judgments of December 21. 1990 the factual ~ legal situacion has changed essentially: On the one hand, several indictmer.~s have been brought against Imelda Marcos before Philippine courts and forfeiture proceedings have been instituted against the Marcos estate; on the other hand, the law 0:1 which the Federal Supreme Court judgments are based, the lMAC, has been amended; in particular, the provisions.en the surrender of assets, which are'~ritical to an evaluation of the contested request, have been revised, Under these circumstances, there is clear justificat~o~ for an examination of the request for advance trans:e~ ~: the distrained assets in light of the present-day :egal situation.

3.- The appellant is of the. opinion that the transfer of the distrained assets ordered by the D~strlc: Attorneys' Office is permissible on the basis of tr.P. revised lMAC, specifically Art. 74a lMAC. The Supre~e Court adopts the opposite position in the contested

~020


12/24/97 WED 11:01 FAX KOHN SW I IT GRAF PC

. 13 -

ruling: The application of the new law does noe mp.~n that the requirement of a final and enforceable judgmenc by

the requesting state can be waived.

Based on the Federal Supreme Court judgments of December 21, 1990, i~ is established that the distrained

assets are considered the product of. or proceeds from a criminal act under the meaning of Art. 74a, Para. 1. in

conjunction wi~h Art. 2, Letter b lMAC and that in principle they must be surrendered to the Philippine

Republic for forfeiture or restitution to the entitled parties. According to Art. 74a, Para. 3 I MAC , the surrender can take place at any stage of the foreign proceedings, "as a rule based on a final and enforceable ruling by the requesting state. II Under Art. 74a, Para. 4 lMAC, however, the objects or assets can be retained :n Switzerland if certain rights of third parties bar an immediate surrender. In this regard, if an entitled pa~:y asserts claims to the objects or assets, then their release is suspended until the legal situation is elarified; in that case, the contested objects or assets may be surrendered to the entitled party only under preconditions named in the law (Art. 74a, Para. 5 I~AC). Based on this situation, in the present case it must first be determined whether the precondi~ions for ~~ advance surrender of the diserained assets are in evidence pursuant to Art. 74a, Para. 3 lMAC; i.e., whether the requirement of a final and enforceable rU:l~g by the requesting state can be waived lcf. E. 4 and ~ below). Even if this is answered in the affirmative, there is still the question.of ~hether any rights 0: third parties under the meaning of Art. 74a, Para. 'i T:JJA~: demand a retention of the assets (E. 6). Finally. i: -~SL

III 021


Koa~ SWIFT GRAF PC

- 14 -

be noted that Art. 74a lMAC is worded as a tfdiscretior.ary provision": Even if all statutory preconditions are present, the mutual assistance authority is not obligated to surrender the assets, but instead decides on the basis

of its dutiful discretion (cf. E. 7).

i.- Art. 74a, Para. 3 lMAC demands the presence of a final and enforceable ruling by the requesting state only as a rule. Thus, the law allows the authority applying

the la~ to disregard this requirement in certain eases. whereby the advance surrender must remain the excepcio~ and may not become the rule. The question of which legal

criteria apply to the distinction between a statutory rule and exception is a matter of interpretation.

a) First and foremost, the law must be read ~~ its own merits, in other words according to the word:~g. system, meaning, and purport of the provision. The

interpretation must be based on the ratio legis, WhICh the court, however, must not determine'based on its ow~

subjective value judgments, but rather on the precep~s . . and intentions of the legislature based on standard interpretation elements (SGE 121 III 219 E. ld/aa p 224 with references, 123 II 46.4 E. 3a p 468). In the presenf. case, the question that arises concerns what the p~~?cse of the requirement of a previous final and enforce~b:p. ruling in Art. 74a, Para. 3 lMAC was, so that any conclusions can be drawn regarding an exception

regulation capable of generalization. In interpretlr.g legislation, the Federal Supreme Court applies a pragmatic plurality of methods, specifically ref~s:~q .~ subject individual interpretation elements to a hierarchical prioriey ranking (BGE 121 III 219 E. 1 ~/.l·l :"; 225 with references). Materials used in enactme~t ot t~~ law can

III 022


12/24/97 WED 11:01 FAX KOHN SWIFI' GRAF PC

.. lS -

be included; their significance varies in accordar.ce with whether it is a question of newer or older law·s (aGE 116

II 411 E. So P 415 with references) .

b) The wording of Art. 74a IMAC provides littl~ indication of the purpose of the requirement of a final and enforceable ruling. It is true that the following negative statements can be made: The surrender can be effected at any stage of tne foreign criminal proceedings. and it is thus not necessary that the accused already be finally and enforceably sentenced; thus, the presumption of innocence is in principle irrelevant to the assumption of an exception. Furthermore, Art. 74a Para. 4 and 5 lMAC contain special provisions to protect concurrent claims; i~ can be

concluded from this that Para. 3 does not serve the sa~e

purpose, but rather pursues other aims. Finally,. the ~ew arrangement dispenses with exequatur proceedings under. the meaning of Art. 94 ss lMAC. On the one hand, ~his :s based on the principle of trust under international law (Report by the Federal Council Regarding the Change in the Mutual Assistance Act of March 29, 1995 (herei~a::~~: Report), Sil 1995 III, P 25); on the other hand, thlS arrangement is also based on the idea that the state :n which the criminal proceedings are conducted and in whi=h the injured party is also usually located is best s~ited to decide on the distribution of the assets. It follows that the purport of Art. 74a, Para. 3 lMAC is clear:y i.e: to establish any substantive controls over the (co~~er.~ of the) judicial forfeitUre or restitution decision by the Swiss mutual assistance authorities.

c) Viewed systematically, the law distinguishes between the surrender of evidence (Art. 74), surrer-del for the purposes of forfeiture or restieution (Art. "Il«} , and surrender in connection with extradition (so·cal:ed

I4J 023


12/24/97 WED 11:02 FAX KOHN SWIFI' GRAF PC

• 16 -

extradition of property; Art. 59 lMAC). As far as the objects and assets to be surrendered and the legal protection of third parties are concerned, extradicion of property corresponds to the arrangement of Art. 74a IMAC; In contrast to that provision, however. Art. S9 IMAC does no~ require a final and enforceable ruling by the requesting s~ate; according to Art. 22, Clause 1 of the Decree of February 24, 1982 on International Mutual Assistance in Criminal Matters (O-IMAC; SR 351.111. a. specific request by t~e au~horities of the requesting state is not even necessary. The objec.ts and assets can be turned over even if they are uncovered only after execution of the extradition or if extradition of the person subject to prosec~tion cannot be enforced (Art. 59, Para. 7 lMAC, Art. 22, Clause 2 D-lMAC) .

Extradition of property is limited to objects and assets in the possession of the person to be extradited, which includes objects and assets that are ~~ deposit at a bank or with third parties, insofar as :he person to be extradited can factually or legally dispose of them (cf. BGE 103 Ia 616 E. 4a p 622 f, 115 !b 517 ~. 7e p 535 f, 97 I 372 E. 6b P 386; Report, SBl 1995 r!:, p 21). However, it seems questionable whether so much weight can be attached to this aspect that it is .able to justify the differentiated arrangement (and certainly also the assumption of an exceptional case under the meaning of Art. 74a, Para. 3 lMAC). In any event. :~e comparison with extradition of property provides no

.convincing conclusion regarding the purport of the requirement of a prior judgment in Art. 74a, Para. 3 IMAC.

d) More instructive. in contrast. is t~e s~~~y of the origins of this provision, which is outlined :n the follo'4lling:

~02.a


12/24/97 WED 11:02 ~~\ KOHN SWIFT G~~F PC

~ 1'7 -

One of the essential aims 1n revising the law was to establish a new arrangemene for the surrender or distrained objects and assets, since the applicable provisions - as the cases of Pemex (BGE 115 Ib 5l7) and

Marcos (SGE 116 rb 452) showed - were full of loopholes and contradictory (Report, eSl 1995 III pp 13 and 25) .

According to the draft by the Federal Council, a surrender should take place only on the basis of a final and enforceable ruling by the requesting state regarding the forfeiture or restitution of the objects or assets. The majority of the Council of States· committee wanted to forego ehis requirement and proposed an arrangement whereby the surrender could take place at any stage of

the proceedings "if the case in question or the

peculiarities of the foreign law require" (Official Bulletin SR 1996 P 229). In this way, the majority of the committee wanted to harmonize the provisions regarding surrender with those on the extradition of persons (c~. votes of Kuchler Official Bulletin SR 1996 P 230, Mar:y. loc cit, pp 230 and 232, and Seerli, loc cit, P 232). ~r. addition, it was noted that adherence to the requiremer.~

of a final and enforceable ruling could have unsettling results, specifically in relation to Anglo-American states, whose courts are not competent to rule on property situated abroad; in the Pemex case this res~l:ed in a situation where the money ultimately had to be returned to the accused (vote of Marty, loc cit, P 23C! . In addition, there are cases that are 90 obvious ~hac :t would be unreasonable to wait for a final and enforceAb:~ foreign judgment, as in the case of the painting by Piero della Franc:esca stolen from the Uffizi in Florence (verI? of Marty, loc cit, P 230 f). With reference to the ~arC~$· case, national and foreign policy arguments ~ere .also cited in support of the committee majority's motion :vo~~ of Simmen, loe cit, p Z31) .

• for your information: equivalent to the u.s. Senate

I4J 025



• 18 •

In contrast, the committee minority pointed oCt that in the initial stage of the proceedings it is not yet clear who is even entitled to che assets (vote of Danioth, Official Bulletin SR 1996 P 231) and whether the

assets were actually acquired in a manner relevant to criminal law (votes of Danioth, loe cit, p 230, and Carlo

Schmid, loc cit, p 231). The motion by the committee majority, they argued, gives free reign to investigating

bodies to exercise unqualified discretion in taking opportune action in terms of state policy, with disregard for all legal considerations (vote of Schmid, loe cit, p 231). The requirement of a final and enforceable judgmer.: constitutes a minimal requirement under procedural law,. they argued (votes of Schmid and Danioth, loc cit, PP "'J and 231) .

Federal Counciller Koller (Official Bulle~i~ SR 1996 P 232) felt that the comparison with extradition

does not hold water, since with extradition there is a: least a clear arrest warrant in which the criminal act~ and the purpose of arrest are clearly described, while i~ the area of incidental mutual assistance it is often the case that there is only very little information available, especially in the initial stage of the proceedings. In addieion, in the case of extraditior. t~€ identity of the party to be extradited is clearly established at the oueset, while in the case of incidental mutual assistance it is possible that t~e~p.

are multiple pretenders to the assets. Ultimately. ~e argued, Switzerland cannot go any further in the co;.~p.x: of mutual assistance than it does with domestic proceedings, where a court order is similarly requi.red. He did concede that in the Marcos ruling, which was t ~~~ focus of the Federal Council draft, the Federal s~p~e~~ court demanded the presence of a final and enforceab:e judgment only "as a general rule," and that it mig~t ce going too far to absolutely demand a court de~ision.

141026


12/24/97 WED 11:02 FAX KOHN SWIFT GRAf PC

.. 19 -

However, he could never agree with the formulation of the committee majority because it was completely lacking in normative guidelines for the important question of handing over assets.

As a compromise, the committee minority proposed that the words "as a rule I' be included in· the Federal Council's version. On the one hand, this would preserve the barrier of the final and enforceable ruling by the requesting state; on the other hand, there would be an exception option in certain cases - where this is not possible or else not necessary, or where it should be treated as appropriat~ for other reasons relatin9 to the ordre public (vote of Danioth, Official Bulletin SR 199G~ P 243). The Council of States agreed to this modified motion by the committee minority, and that decision was endorsed by the National Council- in the jOint reconciliation procedure (Official Bulletin NR 1996 P 747) •

The story of the origins of Art. 74a, Para. ) IMAC provides several starting points for determining t.he intention of the legislature, which must serve as the basis for the search for criteria in distinguishing between exceptional cases and ordinary cases. . .

e) The forfeiture or restitution decision by the requesting state indicates whether the distrained objects and assets were actually acquired in a manner that is relevant to eriminal law and who must be considered the entitled party, and also orders the forfeiture or restitution to the entitled parties. In this ~ay, the facts of the matter are clarified and a binding decision is made regarding the possibility of forfeiture or restitution according to the law of the requesting state. On this basis, the mutual assistance authorities can generally order surrender of the

• for your information: The equivalent to the u.s. House of Representatives

~027


12/24/97 WED 11:03 FAl. KOHN SWIFT GRAF PC

- ~O -

distrained objects or assets without further ado. At the same time, the requirement of a final and enforceable ruling also allows the requesting state to exercise subsequent control over the maintenance of the rule of law in the foreign ruling: As the Federal Supreme Court argued in the Pemex ruling (BGE 115 Ib 517 E. 14 P 556 f), the non-specific surrender of assets of a party who has not yet been convicted constitutes a serious infringement of his legal position, which can be ordered only if it is fully guaranteed that the fate of such assets will be decided on in proceedings that saeisfy the procedural principles of the CCHR and that moreover che party being prosecuted will be indemnified in eve~y regard in the event of acquittal. Any other result wocld be irreconcilable with the Swiss legal regime and in particular with the guarantee of the right of ownersh:p. For the Federal Supreme Court, therefore, the better possibility of control after the rendering of the foreigr. judgment was in the fore~ront. This objective was not fundamentally altered by the revision of the IMAC. Nevertheless, the scope of the possibility of contro~ :s questionable. In its Report, the Feaeral Council emphasized the principle of trust: Switzerland is not authorized to examine rulings by an independent foreign judicial authority with regard to their substantiatio~ ~a long as such rulings do not obviously violate the S'.,t/iss ordre public or elementary principles of the ECHR. ~~der the new arrangement, it is sufficient if the execu~~ve authority summarily examines the foreign ruling'af.ter ~t has ascertained that the foreign state is governed by ~~~ rule of law and respects the noted general princip:es (BBl. 1995 III, P 25 f). This view was also expressed in the Council of States decate. Accordingly. the ir.:e~tla~ of the legislature was to allow control over the q~est.~~

• ~028


12/24 / 97 WED 11:03 FAX KOHN SWIFT GRAF PC

- 21 •

of whether the forfeiture or restitution of the assets to the injured party is effected on the basis of judicial proceedings that satisfy the procedural principles set out in the ECHR and in the International Convention of December 16, 1966 on Civil and Political Rights (UN

Convention II; SR 0.103.2) and that violate neither the

Swiss ordre public nor internationally guaranteed human

rights. In contrast, as explained above (E. 4b), there is no possibility of a subs~antive control, i.e., a control of the substantiation of the foreign ruling. It follows

from this that in the case of advance surrender, it m~st

be ensured that the f'ate of the assets must be decided in

the requesting state in judic:ial proceedings that satlsfy the minimum requ~rements of the ECHR and UN Conven~:on

II.

f) The question of when an exceptional case ca~ be assumed under Art. 74a, Para. 3 lMAC is governed il~

principle by the concrete, factual situation; it ~uSL feature peculiarities that justify waiving the

requirement of a prior final and enforceable j udgmer. t. : t: is not possible to deduce directly from che law what

grounds can justify an exception in general. The cases discussed in the deliberations are examples on ehe b~~\~ of which one wanted to clarify the will of the legislature. In that regard the mutual assistance

authorities enjoy discretionary leeway. However. t.he : .:.l'N

indicates restrictions which limit the discretio~ary leeway: Permitting exceptions cannot. result in t:le

undermining of the objective of the requirement o~ a final and enforceable ruling.

Certainly this does not apply if che si~~a:~'~ is so clear that ~here is absolutely no need for clarificat ion with regard to tortious origin, for wr.1.:':"1 reason it makes little sense to demand a forfeiture ~r

III 029


KORN SW I IT GRo\F PC

- 22 -

restitution ruling (example: the case of the painti:l9 by Piero della Francesca stolen from the Uffizi). Thus, based on Art. 74a, Para. 3 lMAC, the Federal supreme Court deemed it permissible to surrender in advance a painting that was stolen from its rightful owner in France and subsequently sold in Swiezerland to the stace, France, which requested mutual assistance. Since this painting was clearly the object of an offense under the meaning of Art. 74a, Para. 2, Letter b IMAC, the Fede~al Supreme Court held that the requirement of a forfeiture

or restitution r,uling 'by ,the requesting state could be waived (BGE 123 II 134 E. 5c and d p 140 f; cf. a)so 3G~ 123 II 268 E. 4a p 274). In contrast, an exceptional case

cannot be present in principle if the tortious origin requires elarification; such clarification is not :he responsibility of the Swiss mutual assistance authorities, but must instead be provided prior to surrender in judicial proceedings in the requesting s~a~e (BGE 123 II 268 E. 4b P 274 ff).

However, if the tortious origin of the asse:s is obvious, then the interest of the requesting state lr. a subsequent control of observance, of elementary rule'-o:· law guarantees during distribution (forfeiture or restitution to the entitled parties) is limited. In sc~e cases, this interest can be of minor scope and can f~d~ in importance relative to other interests. This cou:d pO'ssibly justify waiving a prior forfeiture or restitution ruling, insofar as it has been oth@rwisp. ensured that the forfeiture or restitution of the assp.~$

to the entitled parties is effec·ted in judicial· proceedings in keeping with the ECHR or the UN Convent :'0:) II.

~030


KOHN SWIFT GRAF PC

- 23 ..

S.- In light of this int.erpretative result, the following emerges for t.he present case:

a) As already emphasized in the Council of States deliberation on Art. 74a IMAC - in which reference was made to the Marcos case, among others - it is contrary to the national interest if Switzerland becomes a refuge for fugitive or criminal money

KOHN SWIFT GR~F PC

• l4 -

of Justice and Police, and that its decisions are subject to appeal to the Federal Council (Art. 2& IMAC). In this regard, it can be deduced from the statutory arrangement

that it is primarily the poli~ical authorities who decide

whether fundamental interests of Switzerland bar cooperation. However, this does not mean that such interests must remain unconsidered within the framework of the decision-making leeway accorded the enforee,nent

authorities. Thus, the Federal Supreme Court has repeatedly eonsidered Switzerland's reputation and compared conflicting interests regarding a refusal of mutual assistance (cf. BGE 11'$ Ib S17 E. 4b, l23 1 I 1 S 1 .

E. 7c p 161; cf. also Rudolf Wyss, The Revision of the

Legislation on International Mutual Assistance in Criminal Matters, SJZ 93/1997, P 39). In the order by the

Zurich District Attorneys' Office, it is noted and is

moreover obvious that it is in the interest of Switzerland to enforce the surrender of the Marcos monies, which is approved in principle, as soon as possible. This goal is served by the advan~e repatria~lor. of the assets. Thus, there can be no objection to considering this interest as a reason to waive the requirement of a final and enforceable rul ing by. t.he requesting state.

b) The illegal origin of the distrained monles cannot be seriously doubted on the basiS of what is presently known. However, based on the record as it stands, it is not possible to assign individual assets ~o

concrete offenses, and it is thus possible that lega: funds of the Marcos family were also invested in the foundations. If so, however· as the appellant has

a~curately set forth • this could relate to only minor sums in comparison to the amount of the distrained assets. Regarding the predominan~ share of the distrQl~ed assets, there exists adequate certaincy that ehey are cf


11/24/97 WED 11:04 FAX KOHN SWIFT GR~F PC

- 25 -

obvious tortious or191n. Under these circumstances, an advance surrender of the assets is not inherently ruled ou~ if it has been ensured that the forfeiture or restitution ruling is handed down in proceedings u~der

the rule of law. The dispute regarding the forfeiture or restitution of the distrained monies must ~ake plac~ in the Philippines, where the criminal acts were committed.

c) According to Art. 2, Letter a lMAC, a

request for mutual assiseance must not be granted if there are reasons to ass~me that the foreign proceedir.gs are not in keeping ~ith the procedural principles set ou~ in the ECHR or in the UN Convention II. If the reques~ir.g state is not a party to the ECHR, then the UN Conv€n~~on

II must be taken as che guiding document, insofar as i: ensures protection at least equivalent to the ECHR (EG£

123 II 511 E. 7d P 525 f). As argued above, even in t~e case of an advance surrender pursuant eo Are. 74a, Para.

3 lMAC, it must be ensured that in the concrete cas~ t~~ basic rights standardized by international law . a~d ~r.~~ in this case the procedural guarantees of the UN Convention II - are complied with. In this regard, i~ :s necessary to perform a prognosis of how it can o~.;'er.·'''''l s~

be effected within the scope of Art. 2 lMAC (cf. 3vE :23

II 16l E. 6b P 167 with references).

aa) In the present case, the Zurich Distric~ Attorneys' Office has argued that the contrace of deoost~ of August 14, 1995 between the PCGG (Presidential Commission on Good Government) and the PN8 (Philipp:~~ National Bank) [the so-called escrow agreement) e~s~r~~ that the rights of the involved parties are upheld, whereby ie is up to the Philippine courts and authcr:t!~$ to resolve any disputes from this agreement. Accord ~::9 -:;) No. ~, Para. VII of the agreement, the assets ~ay ~o~ he

[aJ 033


12:24/97 WED 11:04 FA! KOHN SW 1FT GRAF PC

- 2E; -

disposed of in any way other than in conformity with an enforceable judgment by the competent Philippine court or in conformity with identical instructions by the PCGG and either the affected foundation or the duly represented" (under Philippine law) estate or heirs, or the potentially entitled parties. The supreme Cour~ concluded from this agreement that the assets on deposit can be disposed of even without" a court judgment that satisfies the aforementioned minimum requirements; it could be replaced, insofar as. there exists a desire or instruCL; ()~) to thac effect by the PCGG. by the mere consent of the estate administrator appoineed against the will of ~~c . heirs. Therefore., the escrow agreement certainly cannot ensure a judicial forfeiture or restitution ruli~g. In contrast, the Philippines asserts chat the disputed assets fall under the custody of the cour~ ("custodia legis") until the final and enforceable conclusion of :he pending forfeiture proceedings. Therefore, the PNB can transfer or release the assets only at the bidding 0: :~e Sandiganhayan, regardless of the provisions of t~e esc~~w agreement. However, it ~learly follows from this ~hat tr.e

es~ro~ agreement is not paramount in the view of the Philippines: inste~d, the Philippine authorities and specifically the highest court bear responsibility fc~ ensuring that a decision on the assets is reached :n judicial proeeedings governed by the rule of law.

bb) Thus, the question arises as to whether ~t is not sufficient for the requesting state to prov:de t~~ assurance that the forfeiture or restieution of the assets will be decided on only in judicial proceedi~gs that satisfy the requirements of Art. 2 IMAC.

1lJ034


12 12" " 9 7 WED 11: 05 F A.t KOHN SWIFT GRAF PC

- ~7 - .

The Philippines is a party to the UN Convention

II and is thus obligated under international law co

domestically enforce all the rights set out in the ~

convention. The rights guarant.eed in the convention are direcely applicable and ~an be appealed before Philippine

courts and administrative authorit.ies (Philippines

Initial Report on the UN Convention II of March 7, 1989,

N 16, with reference to Art. II, Sec. 2 and Art. XIII, Sect. 18(7) of the 1987 Philippine Constitution) . Moreover, the Philippines has ratified the 1st Optional Protocol to this convention of December 16, 1966, which permits individual appeals to the UN Committee for HumaQ Rights (Jean-Bernard Marie, International Instru~en~s Relating to Human Rights, Classification and Status of

Ratifications as of 1 January 1997, Human Rights Law

Journal 18/1997, p 7~ ff, esp. p 84). The Philippines has an independent judiciary and guarantees comprehensive

rights of defense to the accused. which satisfy the minimum standard of Art. 14 UN Convention II (cf. Art.

III [Bill of Rights], Sec. 11-17 of the 1987 Philip9i~e Constitution and Rule 115 [Rights of Accused] of the Philippine Rules of Court).

In addition, it must be noted that on Octobe=

19, 1989 Switz.erland concluded an extradition treaty ""1:11 the Republic of the Philippines. This took effect on February 23, 1997 (RS 0.353.964.5; RO 1997 P 1313 ff).

With the ratification of the extradition treaty (Federal Resolution of March 20, 1991, RO 1997 P 1312), the Swiss parliament expressed its general trust in the Philippine Republic'S system of justice.

The record indicates that the rights of defense are in fact being guaranteed in the proceedings agat~S~ Imelda Marcos and her children; The accused have been able to defend themselves at length and have made

~035


12/2-1/97 WED 11:05 FAX KOHN SWIFT GRAF PC

- 28 -

extensive use of their procedural rights. In con~rast, the appellee, which is formally the possessor of the assets to be forfeited or restituted, has thus far root

been involved in the forfeiture proceedings pending in the Philippines. Even if it is a legal construct established co conceal the Marcos family's actual ownership of the assets, it still has the right to a fail:" hearing insofar as the proceedings relate to accounts nominally in its name. Therefore, the assurance provided by the Philippines must guarante.e not only the procedural rights of the accused, but also those of the formal possessor of the assets to he surrendered. From the circumstances noted above, it can be justifiably assu~ed that the Philippines could be counted on to provide s~ch

an assurance.

d) I t can be concluded from the above t ha t: ~. ~lr..

tortious origin of the predominant share of the distrained assets is obvious and that Switzerland has a substantial interest in an advance repatriation of the monies. Given this factual situation, based on Art. 74a,

Para. 3 lMAC it is possible to waive the requireme~t of a final and enforceable ruling, under the condition ~~at the Philippines assures that a decision on the fer~el:~~e or restitution to the entitled parties will be reac~ed only in judicial proceedings that satisfy the proced~:al principles set out in the UN Convention II. In so dO~~9, the procedural rights of both the accused and the appellee, as former possessor of the assets, mUSt be guaranteed.

e) Contrary to the view of the appelle@, S I :~~ ... the lMAC revision it is no longer necessary that th

~036


1,2/24/97 WED 11:05 FAI KOHN SWIFT GRAF PC

- 29 -

assets (Para. 2) and that it be ordered by a ccurt (Para. 3 in conjunction with Art. 14 UN Convention II). However, it is irrelevant whether this occurs within the cont.~xt

of the criminal proceedings against the aecused or in separate proceedings, and whether such proceedings take place before a criminal, civil, or administrative court. Thus, the fact that the Philippines is designating the forfeiture proceedings before the Sandiganbayan as a "civil case" and handling it under civil procedural law plays no role.

!..-..:.. If an advance surrender of the ass·ets is possible in principle, then it is necessary to examine whether any third-party rights bar an immediate surrender. Under Art. 74a, Para. 4 lMAC, objects or assets can be withheld if:

" a) the injured party has his habitual residence in Switzerland and they a:~ tc be restored to him;

b) an authority asserts rights to them;

c) a person not involved in the punisnablp. act whose rights are not safeguarded by the requesting state substantiates cha~ ~e acquired. in good faith, the rights to such objects or assets in Switzerlar.d or. if he has his habitual residence in Switzerland, abroad; or

d) the objects or assets are needed fo~ criminal proceedings that are pendl~g :n S~itzerland or are suitable for forfei~J~e in Switzerland."

a) The appellee relies on the applicable ~a~~ of Art. 74a, Para. 4, Letter c: lMAC. It is of the ~p; n:.·:')n that this provision is applicable here because it is d

III 037



- 30 ..

"person not involved in the punishable act." ~he description of the entitled party in Art. 74a. Para- 4. Letter c lMAC is reminiscent of the one in Art. 10, Para. 1 lMAC, old version, which protects the sphere of privacy of the nunin"olved third party." The Federal Supreme Court had developed a very restrictive practice in this regard. whereby t.he critical factor \-las not whether th~ third party should be regarded as a participant in the act, but rather whether there exists a direct connection to the act depicted in the request (BGE 112 Ib 462 E. 2b P 463 f, 107 Ib 252 E. 2b/bb P 255). Based on this adjudication, a person who received assets of tortious

origin was not inherently considered to be an uninvolved third party, regardless of whether or not he aceed in good faith (E. 3 not reproduced in 8GE 111 Ib 129) - This adjudication cannot be simply transferred to Art. 74a, Para. 4, Letter c I MAC , where the aim is to protect tr.e bona fide aequirer of the objects or assets subj~ct t~ forfeiture. Nevertheless, it must be required that the person in question at least be a "third party" and r.ct :1 sham juridical person that is only formally au~onomo~s

and is controlled by the accused, s~ that the acc~sed continues to exercise actual power of disposition ove~ the tortiously acquirea assets or their equivalent vftl~~, In this case, moreover, one must deny the existence cj good faith on the part of the company, which must b~ regarded as an element of the bad faith on the part ~! the accused. In the present case, the appellee is nominally the party entitled to the bank accounts i~ dispute; however, it was controlled by Ferdinand Ma:-~t';s. who regardless of the, legal autonomy of the company retained actual power of disposition over the ass~ts. ~·"t· appellee has not contested this point, i.e., has ~o~ substantiated that the bank accounts ~ere acquir@d L~ good faith and independently of Ferdinand Marcos.

It] 038


12/2-1/97 WED 11:06 FA .. 1 KOHN SWIFT GRAF PC

.. 11 -

b) Furthermore, the appellee discerns an impediment under the meaning of this provision in the fact that third parties have effected ateachmentsunder civil law on the assets, which are frozen under criminal'

law.

aa) Under Art. 74a, Para. 4, Letter c lMAC, objects and assets can be retained in S~itzerland if ~ person not involved in the punishable act whose rights are not safeguarded by the requesting staee substant ia'res

that he acquired, in 9~od faith, the rights to such objects or assets in Switzerland or, if he has his habitual residenc'e in Switzerland. abroad. The sa'me formulation is found in Art. 59, Para. 4, Letter c I~AC (regarding the extradition of property). The wording of these provisions (II rights ~ such obj ects or assets J' )

supports the view that this pertains only to rights i~ rem, hue not to mere claims, even if an attachment of t~e assets situated in Switzerland has been effected for s~ch claims. Attachment is a pure se~urin9 instrument wh~c:~ grants the creditor no substantive preemptive right (BG2 116 III 111 5. 3 P 115 ff; Kurt Amonn/Oominik Gasser; Outline of Debt Collection and Bankruptcy Law, Bern lS~i,

S Sl Rz 2 P 406) .

bb) This interpretation corresponds to the

arrangement under Swiss law, whereby distraint under criminal law takes preeedence over at~achment under c:vi: law (BGE 93 III 89 E. 3 P 93 with further references), and only t.he holder of a right in rem to the asser.s ca:~ hinder their forfeiture (Federal Council Report on the Revision of the Swiss Criminal Code and of the Mili:ary Code of June 30, 1993, SBl 1993 III P 310 00, Art. ~9. N~, 1, Para. 2 StGB; Stefan Trachsel, Penal Code Brief Commentary, 2nd edition, Zurich 1997, Art. S9 Rz lE; Niklau9 Schmid,

Il1 039


12/24/97 WED 11:06 FAl KOHN SWIFT GR~F PC

- 3~ -

The New Forfeiture Law According to StGB Art. 58 ff SPC, ZStrR 113/1995 p 343; unpublished Federal Supreme Court ruling of June 5, 1996 in re: UBS, E. 3ai divergent opinion Denis giotet, The Civil Effects of Criminal Distraint, Bern 1995, p 95 ff, esp. R2 270 ff. who attempts to apply the priority principle). Art. 60. Para. 1, Letter b SPC provides for an exception only in favor of the injured party, to whom under certain preconditions the judge must award the forfeited objects and assets, the proceeds of their exploitation, or equivalent claims (cf. BGE 117 IV ·107 E. 2~ P 111 f), insofar as they are the result of the criminal act committed against him (B~E

122 IV 365 E. III/2b P 374 f). This exception arrangement of domestic law was moreover incorporated into the Mutual Assistance Act without changes: Art. 74a, Para. 4, Le~ter a lMAC considers only claims for restora~ion (and not claims for damages in general) by injured parties and ,"

also requires that such parties have their habitual residence in Switzerland.

ce) Finally, nothing can be found in the Federal Council Report on Art. 74a, Para. 4, Letter c

lMAC to support the appellee's view: Although it is stated there (BBl 1995 III P 26 Note 45) that a surre~der of assets to the requesting state is not possible before conclusion of the proceedings pending in Switzerland if a creditor satisfies the formal conditions of Paragraph 4

and, for example, has instituted proceedings to ascertain the validity of an attachment levied on the pro~eeds from the criminal act, this statement does not concribute to ~ better understanding of the text of the law; indeed ic requires approval of an attachment in addition tQ ~he presence of the formal conditions of Para. 4.

dd) Therefore. there is much to be said for the view that attachments under ci~il law generally do not bar a surrender in mutual assistance proceedings (as

ilJ040


12/24/97 WED 11:06 FAX KOHN SW 1FT GRAF PC

.. II .

supported by ~aurice Harari, International Restoraeion of Objects and Asse~s: Considerations on the Occasion of the Revision of the lMAC, in: Penal Proceedings, International Penal Law, Penal Mutual Aid. Studies in Honor of Dominique Poncet, 1997, p 167 ff, esp. p 191 f; of the same view regarding the old law is Curt Markees, International Mutual Assistance in Criminal Mateers, the Federal Law of March 20, 1981 (IMAC),'Swiss Juristic ~eview No. 422 (1982) p 2l; ibid, The Surrender of Objects in International Criminal Mutual Assistance, in: Current Problems of International Criminal Law, Commemorative Issue for Heinrich Gruezner, Hamburg 1970 .. pp 92-99, esp. p ~4; Lionel Frei, Distraint and Forfeiture as Legal Assistance Measures, in ZStrR 105/l988 p 312 ff, esp. p 333; on the state creaty of ~ay 25, 1973 between Switzerland and the United States regarding mutual legal assistance in criminal ma~ters, cf. BGE 120 III 123 E. 3b P 126). However, this question need not be concluSively clarified, since the civil-law attachments in the present. case were effected after t.b~

accounts were frozen in the mutual assistance proceedings. after the Federal Supreme Court had already

approved in principle the surrender of the assets to t~e Philippines. In this situation, there is clearly no reason to grant the attaching creditors priority over tr.e interests of the requesting state.

~ Finally, within the framework of the genera!

discretion accorded the mutual assiseance authorities according to Art. 74a, Para. 1 and 3 lMAC, the quest~cn arises as to whether any rights of other persons unprotected by Art. 74a, Para. 4 and 5 lMAC justify a .rejection of the request for mutual assistance.

a) Even while Ferdinand Marcos was still living, approximately 10 1 000 persons of Philippine nationality filed actions for damages before the Oist r 1 C'O'_

• I4J OJI


12/2-1/97 WED 11:07 FAX KO~~ SWIFT GRAF PC

.. 34 -

Court of Hawaii. claiming that Ferdinand Marcos was responsible for the serious violations of human rights committed during his term of office (torture, murder, ar.d disappearances of persons in the custody of the Philippine police, the army, and paramilitary groups) .

After the death of Ferdinand Marcos on September 28, 1989, the proceedings were continued against the Marcos estate. On November 16, 1991, ~he District Court of Hawaii issued an order ("preli~inary injunction") enjoini~g the defendant and his representatives and agents from transferring, convey:'ng ' .. encumbering, altering, concealing, or in any other way disposing of any and all assets. On January 27, 1995, t'.hp. court 'ordered the Marcos estate to pay damages ranging

between USD 10,000.00 and USD 185,000.00 to 135 rando~1y chosen individual plaintiffs; the total awards amounted to USD 251,891,811.00 to the group of torture vieti~s, USD 409,191,760.00 to the heirs of persons executed while

~n custody, and USD 94,910,640.00 to the heirs of perso~s who had disappeared. In addition, the 'court ordered :hp. estate to pay "exemplary damages" in the amount of liSD 94,910,640.00. to be distributed proportionally to a1: the plaintiffs. The total amount of the a~arded damages is usn 1,964,005,859.90. The judgment contains a "permanent injunction" directed at, among others, =he S\1iliss Bank Corpo'ration and Credit Suisse as II agent.s a:,\o

representatives~ of the estate of Ferdinand Marcos, prohibiting the transfer, conveyance, encumbrance, distribution, conversion, concealment, and any othe!"

disposition of monies of the Marcos estate on the~~ pa::.

The District Court judgment was upheld by tt.e Ninth Circuit Court of Appeals on January 8, 199; an~ lS enforceable (for the further history of the aCtior., ~f.

~0-l2


·.l

12/24/97 WED 11:07 FAI KOHN SWIFT GRAF PC

• lS ..

E. 7d below). The plaintiffs are interested in galning

access to the assets of the Marcos estate situated in Switzerland, while the Swiss banks fear detriment in the USA if they surrender the assets to the Philippines, thus violating the "permanent injunction."

b) As argued above, Art~ 74a, Para. 4 IMAC considers in principle only the rights of injured parties with their habitual residence in Switzerland and of creditors in rem. However, this does not mean that the interests of other creditors would be irrelevant. This :5

especially true of persons who were injured by the

criminal act that is the subject of the request for mutual assistance and that is the source of the assets ~o be surrendered: If it can be assumed that the victim of a criminal act will win damages neither from the accused nor from a third party (e.g., an insurance company) nor from the requesting state, then his interest in gaining access to the assets distrained in Switzerland merits protection in principle - domestically this assessment forms the basis of Art. 60 SPC as revised in the eont~x: of the Victims Assistance Act of October 4, 1991 and wa~ also considered in the Federal Supreme Court ruling on . the Gelli case (BGE 112 Ib 610 E. 9b P 626). In the present ease, however, there is no connection between tr.e criminal acts that were presumably the source of the assets distrained in Switzerland and the claims raised by the creditors: This is true of hoth the attaChing creditors mentioned in E. 6 and the victims of human rights violations to whom the District Court of Hawail awarded damages against the estate of Ferdinand Mareo$. Under domestic law (Art. 60 Spe), therefore, they wou:d have no right to be awarded these assets (cf. BeE '~2 IV 365 E. III/2b P 374 f).


12/24/97 WED 11:07 FAX KQHN SWI IT GRAF PC

- 36 -

c) Nevertheless the question arises as to whether the interests of the victims of human ri9hts violations under the Marcos regime should not be considered: The discretion accorded mutual assistance authorities by Art. 74a lMAC must be exercised with due observance of the fundamental values of the lMAC and of the Swiss legal regime and Switzerland's international obligations. This includes specifically the safeguarding of human rights, the performance of ~hich is incumbent upon the administrati~n and courts as executors of the international law regime (cf. Daniel Thurer, International "Rule of LawU - Domestic Democracy, SZ!ER 4/1995 pp 4SS-47a, esp. p 471; Olivier Jacot-Guillarmod,

The Swiss Judge and European Law, ZSR 1993 II pp 227-576, esp. pp 377, 517, and 539 f; Luzius Wildhaber, Country

Report Switzerland, in: Control of Foreign Power, WDStRL

56/1997, pp 67-80, esp. pp 75-79; see also Joint Opinion of the Federal Office for Justice and of the Directorate for International Law of April 26, 1989, The Relationship Between International Law and Domestic La~ in the Context of the Swiss Legal Regime, VPB 53/l989 No. 13 a, band '3 and No. 15 P 417 ff and p 459 ff as well as BGE 1.1.7 Ib 367 E. le p 373) .

In this regard, reference must also be made to Art. 16 of the Swiss-Philippine extradition treaty, regarding multilateral agreements to which both contractual parties are bound. Specifically, the treaty thereby gives precedence to international treaties on tr.e protection of human rights over bilateral mutual assistance obligations (in the same sense BGE 122 II 48~ E. 3c P 488 and the unpublished E. 3e; cf. also Walter Kilin, Human Rights Agreements as Guarantee of an Objective Regime, in: Current Problems of Human Rights Protection, Heidelberg 1994, pp 9-48, esp. pp 24 f dnd .~s f, and J6rg Paul Muller, Change in the Sovereignty


12/2~/91 WED 11:08 FAX KOHN SWIFT GRAF PC

- 31 -

Concept in Terms of Basic Rights - Presented Through the Example of Effects of International Human Rights Protection on the Swiss Legal Regime, in: Questions o[ International and National Human Rights Protection, Symposium on the 60th Birthday of Luzius Wildhaber. Basel 1997, pp 45-66, esp. p S6 f). This precedence, which lS an expression of the international ordre public, must definitely be observed if mutual assistance, as in the present case, is provided not on the basis of a treaty, but rather in the context of the IMAC (cf. Art. 1, Para. 1 and 4 lMAC).

The aim of Art. ~ lMAC is to prevent a situation in which Switzerland, by way of mutual assistance or extradition proceedings, is involved in proceedings that do not live up co the in~ernational minimum standard of the ECHR or UN Convention II or th~t are contrary eo the international ordre public (BGE 123 II 511 E. Sa p 517, 161 E. 6a p 167, 122 II 140 E. Sa p

142 ~ith reference). According to Are. la IMAC, in applying that law consideration must be given to the public order and to the fundamental interests of Switzerland, which include the safeguarding of human rights (cf. Report by the Federal Council of June 2, !982 on Swiss human rights policy, SBl 198Z II P 729 f! a~d Report by the Federal Council of November 29, 1993 o!~ Swiss foreign policy in the 1990s, BBl 1994 I l53 ff, esp. pp 159 bottom, 179 ff, and 200 f; Walter Kalin/ Aloia Ri~liD, Goals, Means, and Strategies of Swiss Foreign Policy, in: A. Riklin/H. Haug/R. Probse (editors), New Handbook of Swiss Foreign Policy·, Bern,

Stuttgart. Vienna 1992. p 167 ff, esp. p 180 f; Mathias-Charles Krafft/Jean·Daniel-Vigny, Swiss Policy wi:h

Regard to Human Rights, in: New Handbook of Swiss Fcre!~~ Policy, p 223 ff, esp. pp 223~227 and Z29 f). In ~t~ first ruling on this provision in light of Art. la a~d 2 .•

~045



.. 38 -

Letter a lMAC and of the relevant international law, Lhc Federal Supreme Court performed an interpretation of Art. 74a lMAC'and ensured that third parties have access to

effective legal protection in the requesting state which satisfies Art. 6 and 13 ECHR, so that they can assert any rights to the object to be surrendered, and that the protection of basic rights does not bar a surrender in mutual assistance proceedings (BGE ~23 II 134 E. 7a p 143) •

aa) In the present proceedings, it is necessary

to consider most of all the guarantees of UN conventicr.. II, to which both Switzerland and the Philippines have acceded. Art. 2 of that convention obligates the contracting states to observe the human rights set out il'l the convention and to guarantee them to all persons who are situated in their territory and are subject to their dominion (Para. 1). Each contracting state is obligated to take the necessary steps, ~o undertake legislative 0~ "other preeautions" that are necessary to lend effectiveness to the rights recognized in the conventlO!~ (Para. 2). It must ensure that any person whose righ:s or liberties as recognized in the convention are violated

has the right to file an effective complaine, even ~~ l~~ violation was committed by persons who were acting :~ an

official capacity (Para. 3, Letter a). Anyone who bri~g~ such a complaint must be able to establish his right through the competent judicial, administrative, 0%"

legislative organ Or through another institution that i~ competent under the state's provisions of law (Pard. J, Letter b). Among the rights and liberties recognized by the convention and to which ~rt. 2 relates are in particular ehe right to life (Art. 6), the prohibi,t lon 0:1 torture and cruel, inhumane. or degrading treatment C~ punishment (Art. 7), and personal liberty (Art. 9), A~~" 14, Para. 1 UN Conyention II guarantees the right ~~ b~

(4J 046


12/2-1/97 WED 11:08 FAX KOHN SWIFT GRAF PC

• 39 ..

tried, equitably and publicly, before an independent and

impartial court. functioning on the basis of law, by way of criminal-law indictments and civil· law claims and obligations. Both Switzerland and the Philippines have issued a statement pursuant to Are. 41 UN Convention 11 which allows them reciprocal control over compliance with

the conven~ion and the right to resort to the UN Commission on Human Rights.

bb) Mention must also be made of the UN acco~d

on torture and other cruel, inhumane, and degrading

treatment or punishment of December 10, 1ge~ (SR O.lOS)! which both Switzerland and the Philippines have ratified. Art. 13 obligates each contracting state to ensure that anyone who asserts that he was tortured in an area unGer

the sovereignty of' the state in question has the right to resort to the competent authorities and to a prompt,

impartial examination of his case by those authorities.

Under Art. 14, each contracting state must ensure ~~at

the victim of torture receives indemnification and has a~ actionable right to fair and reasonable compensation, including the means for rehabilitation that is as complete as pc:>ssible. These obligat.ions apply accQrd.!.;;g~ y

to other forms of cruel, inhumane, or degrading t%·ea:~er::' Or punishment (Art. 16, Para. l).

ee) According to these provisions, vict~~s o~

serious human rights violations are entitled to compensation and eo a fair trial, in which they can

assert their claims for compensation. Such claims ar~ directed primarily against the Philippines, in whose eerritory and under whose dominion the human rights violations were committed. However, no victims' rigl!: :r.

fl]0-l7


KOHN SWIFT GRAF PC

- 40 -

preferential satisfaction from specific assets can be deduced from either the UN convention II or the, UN accord on torture. In principle, the parties injured by the Marcos regime must thus rely on eith~r taking par~ in the probate proceedings, if they wish to as~ert the personal responsibility of Ferdinand Marcos for the human ri9ht~ violations committed during his term of office, or else demanding compensation from the Philippine state for the injustice perpetrated by its institutions. However, insofar as the Philippine state • as apparently contemplated by President Ramos on March 21, 1997 (cf. Article in the Saudi Gazette of March 21 and 22, 1997) uses all or SOme of the forfeited assets to compensate the victims of human rights violations, this would be welcomed.

dd) Based on t;he above, the interests of these persons do not bar in principle a surrender of the assets to the Philippines. Nevertheless, the question ar:i.se~ uS to whether the mutual assistance should not be made conditional on the assurance of their rights in the Philippines (Art. SOp IMAC).

As demonstrated, the state treaties ratified by the Philippines (UN convention II and UN convention on Torture) already guarantee ehe right of victims to effective and fair proceedings to assert their c:la il,!,\s r,~) compensation. These state treaties can be directly invoked before the Philippine authorities and cour:s (Art. II Sect. 2 Philippine Constitution; Philippines Initial Report; N 16). After all official domestic channels have been exhausted, individual complaints can be brought before the UN Commission on Human Rights (1st Facultative Protocol on the UN Convent.ion II of December 16, 1'966).

~048


12/2'&"97 WED 11:09 FAX KOHN SWIFT GRAF PC

- 41 -

Moreover, the Philippine Constitution also concains relevant provisions: Art- III Sec. 12(4) of the Constitution obligates the legislature to provid~ for criminal and civil sanctions for the violation of human rights and to compensate and rehabilitate the victims of torture and similar practices, as well as thei·r families,

The compen~ation claims can be brought before civil courts (Philippine Initial Report, N 22). Art. III S@c.

16 of the Constitution grants a. universal right to a quick settlement of c,laims before all judicial, quasi:

judicial, and administrative authorities. Since the 1991

abolition of the special judicial authority for members of the army, police, and citizens' militias for criminal acts committed in serviee, human rights violations by ~he armed forces and police authorities can be prosecuted by the regular courts. The Constitution moreover establishes a commission to protect human rights ("Commission on Human Rights"; CHR) (Art. XIII Sec. 11), which investigates any type of violation of civil or pclitic3! rights, either ex officio or on the basis of brought charges (Art. XIII See. 18(1» and promotes appropriat~ measures to protect human rights (Sec. 18(3». The commission is empowered to monitor compliance with international human rights obligations on the part of ~~~ Philippine government (Sec. 18(7» and to propose to Congress effective measures to compensate the victims of

human rights violations and their families, amon9 other things (Sec. 18(6». The procedural rights of victims of human rights violations are thus also guaranteed under Philippine law.

ee) Nevertheless, i~ cannot be denied that there exist shortcomings in the enforcement of thesp-rights. Tht!! Philippine judiciary is reputed to l,~ ponderous and susceptible to corruption and political influence (cf. - regarding the following as well - u.s. Department of State, Philippines Report on Human Right.s

ItJ 0.&9


12/24/97 WED 11:09 F.~ KO~ SWIFT GR:\F PC

- 42 -

Practices for 1996 pp 1 and 4 f; Report of "the Philippin~ Alliance of Human Rights Advocates to the Session of t~le UN Commission on Human Rights, March 1996, p lS}. The criminal prosecution authorities are understaffed and underpaid and generally work very slowly. Procedural delays, often lasting years, undermine the confidence of persecuted persons in the judicial system and result in the fact that perpetrators often end up geteing off scot-free. Nor has much progress been made in clearing up old cases from the Marcos era and prosecueing the people responsible. However.th~ reason for this is not the bad will of the Philippine authorities, to whom a large degree of openness toward the problem of human righcs is attested, but rather the structural and financial shoreeomings of the Philippine judiciary. Such shortcomings can be rectified only through long-term reforms, some of which have already been instituted: Thus, the supreme Court of the Philippines has adopLed a plan for the accelerated handling of cases pending be:r)re it and the lower courts (cf. Art. XVIII Sec. 12 of ~he Philippine Constitution). Under President Aquino, a tQsk force was set up in 1988 to improve the dispensation ?f justice and speed up court proceedings, which has presented numerous proposals, some of which have already been implemented (Philippine Initial Report N 125~133) . Moreover, President Ramos and his Interior Minist~r Robert Barbers have also made efforcs to institute criminal proceedings against influential persons ann r.av~ dismissed numerous policemen for breach of official Ol.ty (u.s. Department of State, Philippines Report, p 4 r.;.

ff) In several extradition rulings, the Fede~a~ Supreme Court has demanded concrete assurances from ~h~ requesting staee in order to safeguard the fundament3t human and procedural righes of the person to be extradited (e.g., BGE 122 II 373, Directions p 381, :21

• IaJ 050


12/24/97 WED 11: 09 FA .. ~ KOHN SWIFL'

12/24/97 WED 11:10 FAl KOHN SWIFI' GRAF PC

- 44 -

human rights violations under the Marcos regime does not

appear to be an abuse of discretion. There is indeed

justification for demanding of the Philippines that it inform the Swiss authorities of the current status of the proceedings and regularly update them on all impor~ant developments, and that it do so not only with regard to the judicial forfeiture or restitution proceedings, but

also with regard to the precautions or procedures set oue in Art. 2 No.2 and 3 and Art. 14 UN Convention II and

Art. 12·16 (esp. 14) of the UN Torture Convention that have been taken to compensate the victims of human rights

violations under the Marcos regime.

hh) Such information makes it possible and necessary for attendant control to be exercised by the Federal Council. which must take steps pursuant to Art.

41 UN Convention II or Art. 30 UN Torture Convencion anyway (Art. 102 Para. 8 Fe; cf. the Report on Swiss

foreign policy in the 19906 of November 20, 1993 cited

above, p 200 on the application of Swiss foreign polley to reinforce international law and the' peaceful settlement of disputes; D. Schindler in the Fe commentary, Art. 102 Rz 115-ll9; regarding the joint

responsibility of state institutions for the implementation of international law obligations, cf. tr.e joint opinion of the Federal Office for Justice and C!le Directorate for International Law cited above, VPB 53/l989 No. 13 P 417 f and BGE 117 Ib 367 E. 2e p 373) .

d) Finally, it is necessary to examine the question of whether the district attorney also should have considered the interests of the Swiss banks.

aa) The banks assert that if the assets are transferred to the Philippines then they could be c~a~~2d in the USA with "contempt of court" and be punished w~th

~052



.. 45 ...

high fines. Moreover, the victims could attempt to collect their claims from the U. S. branches of. t.he Swiss banks. In fact, since the judgment by the District Court

of Hawaii, proceedings have been instituted in the United States with the aim of forcing the Swiss banks to transfer the Marcos monies frozen in Switzerland to the

legal representatives of the victims. However, on December 3, 1997 the u.s. appellate court in San Francisco (United States Court of Appeals for the Ninth Circuit) ruled that such orders would be in conflict with the freeze on those same monies ordered by Switzerland at the request of the Philippines. The steps demanded by :~e plaintiffs would violate the "act of state doctrine" developed by the u.s. Supreme Court, which prohibits U.S. courts from declaring sovereign acts by foreign states legally invalid (cf. Underhill v. Hernandez, 16A U.S. ;;:;0 (1897); ianeo Nacional de euba v. Sabbatino, 376 U.S. 198

(l964); W.S. Kirkeaerick ~ Co., Inc v. Environmental

Tectonics Com., Int' 1, 493 U. S. 400 (1990)). The CO~I·':.

of appeals thus instructed the federal district cour~

(U.S. District Court for the Central District of

California) to desist from all actions relating t.o tr.t~ frozen Marcos assets in Switzerland (US9 Credit SUlsse v. u.s. District kourt of California, 97 C.D.O.S. ~O~7.;.

bb) Even if the court of appeals had n~t r~i~d

in this way, a rejection of the Philippine request =~~ mutual assistance on the basis of the Qrders hand~ci ~;N~ in the USA would have been unacceptable based 5 imp 1 y !':~ fundamental considerations. As early as March 24, ~)S~ the Marcos accounts were frozen by the Swiss Federa: Council as a precautionary measure, and since cher. :~~! have remained frozen on behal f of the Phil ippines. l.~ -;-::' an order from the eompetene cantonal mutual assi$:a~c~

authoricies. On December 21, 1990, the Federal S~pre~~

~053


12 / 2-1:97 WED 11:10 FAX KOHN SWIFT GRAF PC

- 46 -

Court approved in principle the surrender of the assets to the Philippines for forfeitur, or restitution to the entitled parties. The first order ("preliminary injunct.ion U ) by the Hawaii District Court in 1991 was handed down aft,er this ruling by the Federal Supreme Court. It related to asse~8 situated in Switzerland and was directed against Swiss banks that were not a party tc the proceedings in Hawaii; its clear aim was to prevent the surrender of the assets to the Philippines and thus to frustrate a mutual ,assistance action legally ordp.~ed by the Swiss authorities in keeping' with their eompetence. The Swiss authorities then intervened repeatedly with the authorities and courts of the United States, pointing out that the Swiss mutual assistance measures must be given priority and thae unilateral measures by American courts aiming to force Swiss companies within Switzerland to surrender the frozp.n

monies to the USA would violate Swiss sovereignty. T f i!'l the present case the Federal Supreme Court were to deny the mutual assistance already approved in prineiple :n 1990, then this would give individual ~reditors the option of impeding Swiss mutual assistance measures by resorting to American courts, even though the assets a~e situated in sovereign Swiss territo~y and the mu~ual assistance is in conformity with the lMAC and

international law.

8.- a) The conclusion from the above is that t~e Zurich district attorney acted correctly in orderir.g t~p. surrender of the assets to the Philippines. Ho~ever, ~~~ granting of mutual assistance must be made conditional ~:: the provision of an assurance by the Philippines that ~ hE~ forfeiture. or restitution of the assets to the enti:l~d parties will be ruled on only in judicial proceedings

~05"



- 47 -

which satisfy the proeedural prin.ciples set out in the UN

Convention II, and that it will keep the Swiss authorities up to date on the status of those proc~edings

and on.the precautions and procedures applied to compensate the victims of human rights violations under the Marcos regime. These conditions can be ordered directly by the Federal Supreme court as the appellate instance (Art. SOp, Para. 1 lMAC). The contested judgment of the Zurich Supreme Court is thus reversed; the noted conditions are attached to the district attorney's order, which is otherwise upheld.

b) Immediately following this rul ing, the l='O?:vI shall notify the Philippines of the conditions and establish an appropriate deadline for it to declare its ·acceptance or rejection of them (Art. 80p, Para. 2 IMAC).

After receipt of the response, the FOPM must determine whether it satisfies the demanded conditions (Art. BOp,

Para. 3 lMAC). The respective order by the Federal O::ir:~ can be contested before the Federal Supreme Court thro~gh administrative appeal within ten days (Art. sop, Para. 4 lMAC). The assets shall be surrendered to the Philipp'i~es upon eonclusion of the depicted proceedings and of the

associated mutual assistance proceedings. The modali:y cf

the surrender shall be based on the order by the Zurich District Attorneys' Office. Accordingly,

is obligated to liquidate all ~o~~y market investments and precious metals held in speci~ic customer aCt':ounts and to transfer the proceeds to corresponding accounts designated by the Philippine

. . National Bank (PNB) and approved by the Zurich Dist!" :~t. Attorneys' Office; the balance of securities and si~~:a: instruments held in the customer accounts shall be transferred to corresponding securities accounts designaeed by the PNB and approved by the District Attorneys' Office; and the surrender of assets shal~ O~ effected in keeping with the obligations of the

(lJ 055


12'2-1/91 WED 11:11 FAX KOHN SWI FI' GRAF PC

- 48 -

Philippine government and of the PNB under ~he escrow agreement of August 14, 1995.

c) With this procedural outcome, the appellee' bears the court costs (Art. 156, Para. 1 OJ) and no compensation is awarded to the parties (Art. l59, Para. 2 OJ) .

Accordingly. the Supreme Court holds:

~ The administrative law appeal is approved and the ruling by the Supreme Court of the Canton of zurlch of February 20, 1991 in re: District Attorneys' Office of the Canton of Zurich (UK950182) is reversed. The case is referred back to r.h?

Supreme Court for reassessment of the costs of the cantonal proceedings.

2.- The decision by the District Attorneys' Cf~ic~ of ~he Canton of Zurich of August 21, 1995 regarding

(REe 1/384/86) is up~e:d.

with attachment of the following conditions:

a} The Philippines assures that the forfeitu:e ~! restitution of the assets to entitled parl!eS shall be ruled on in judiCial proceedings t:-:~~. satisfy the procedural principles set o~t :r. Art. 14 of ~he International Conveneion 0: December 16, 1966 on Civil and Political ~~gr.:~ (UN Convention II) .

b) The Philippines shall inform ~he Swiss authorities of the curre

Documents

JUDGMeNT BY THE SWISS FEDERAL SUPREME COURT 49.pdfThe examining magistrate in Geneva adapted ~he mutual assistance orders· issued by him to the Supreme Court judgments of December