The Swiss cases saga – II

In the light of this explanation, it is easier to see how Judge Daniel Devaud of a court in Geneva canton (not the Swiss federal court) completed the recording of evidence and formulation of his view of the facts surrounding the case, regardless of Asif Zardari’s refusal to spurn the ‘letters rogatory’.  These letters are the written requests made by a judge to a judge in another country to take evidence of a witness in that country in connection with a case pending trial in the court whose judge wrote the letters.

My advice as counsel to Benazir Bhutto then, having spent some time in Switzerland to dig out the information surrounding the freezing of the accounts and the impending prosecution, was for her and Asif Zardari to decline to accept the indictment or letter rogatory to answer questions. The case before Judge Devaud started after the government of Pakistan requested legal assistance under the Federal Act on International Mutual Assistance in Criminal Matters (Act on International Criminal Assistance, IMAC), 1981. Under the rules, the examining magistrate known as a judge in the Swiss system, investigated in his chambers and at the end of his protracted inquiry process pronounced a summary judgement sentencing the couple (and a Swiss national including Jens Schlegelmilch) to various terms and fines. The appeal by the accused removed the summary sentence passed by Judge Devaud and the appeal entailed the option to reject the sentence to face a full trial before a judge and a jury or three judges. Benazir Bhutto opted to choose the three judges option.

Before the trial was to start, the legal system required a fresh inquiry, conducted more or less in the same way as Judge Devaud did, but this time not to pronounce a sentence by the new Judge Vincent Fournier, but to forward the completed inquiry to the chief prosecutor of Geneva, Daniel Zapelli to bring a case of aggravated money laundering before the court.  As opposed to earlier prosecution under Pakistan’s request, this was an indigenous prosecution by canton of Geneva with their own charge of aggravated money laundering, having nothing to do with the federal government of Switzerland or its attorney general.

Now if Pakistan is to initiate a request de novo under the Supreme Court’s directions to invoke the Mutual Assistance in Criminal Matters Act of Switzerland, the Swiss attorney general will get involved and he may choose to try the matter in their newly established federal criminal court in Bellinzona.

The earlier prosecution was at Pakistan’s request but the subsequent one is Swiss, on charges of aggravated money laundering, and carrying a maximum five-year sentence, as opposed to the summary sentence of six months awarded by Judge Devaud. Geneva canton examining magistrate Vincent Fournier wrapped up his inquiry in late October 2007, just a month before the assassination of Benazir Bhutto and handed over his confidential findings to chief prosecutor Daniel Zappelli for action.

Unlike the investigation by Judge Devaud, where Ms Bhutto and Mr Zardari refused to appear, the former did appear before Judge Vincent Fournier on a number of occasions.  Mr Zardari was unwell and could not appear after being indicted by the judge. His inquiry had the advantage of recording statements of Ms Bhutto as a witness and testimonies of other witnesses. On most occasions she had chosen not to reply to the questions put by the judge or the chief prosecutor.

Published in the Express Tribune, June 4^th, 2010.