Death sentences and due process threaten recovery of Mubarak assets
 
 

Former President Hosni Mubarak’s assets in Switzerland have been frozen since he stepped down in February 2011, and there they remain to this day.

A few years, several cabinets and two presidents later, the asset recovery process has repeatedly fallen vulnerable to the beleaguered judicial process domestically, namely when it comes to corruption cases related to Mubarak, his family and members of the former regime.

Last week, a court upheld the death sentence against former President Mohamed Morsi and other Brotherhood figures, presenting yet another stumbling block and possibly jeopardized the asset recovery process.

In a meeting with a delegation of Egyptian journalists to Switzerland earlier this month, Ambassador Valentin Zellweger, director of the Task Force Asset Recovery, said that the return of the assets would ultimately come down to trust in Egypt’s judicial system.

The task force, which falls under the Swiss Federal Department of Foreign Affairs’ Directorate of International Law, was created in 2011 in a swift response to the Arab uprisings.

Zellweger asserts that Switzerland remains very willing to return the assets to Egypt, but that this is subject to developments in the country.

The Swiss government moved to freeze Mubarak’s assets hidden away in its banks on the same day he was removed from power in February 2011. Since then, it has renewed the freeze on the assets of Mubarak, his family, along with 30 members of his regime, as it awaits the result of Egyptian legal proceedings to determine the fate of these assets.

The first three-year freeze was due to expire in February 2014 and was up for review by the Swiss government. In December 2013, the seven-member Federal Council, which includes the Swiss president and six ministers, extended the asset freeze for three more years.

According to Zellweger, the process is now stalled at the phase of exchanging information between the Egyptian and the Swiss prosecutor, which has to be approved by a Swiss court. Following this step, an Egyptian court would use the combined Egyptian and Swiss evidence to convict Mubarak and others on the list.

The conviction would then be sent to the Swiss government with a request for the return of the funds to Egypt, a decision that can then be challenged in Swiss courts.

In December 2012, a Swiss court rejected a request to share information between the Swiss and Egyptian prosecutors. Zellweger explains that at the time, Morsi’s move to remove the prosecutor general cast a doubt on the independence of the prosecution.

“In summer 2013, you had yet another revolution in Egypt and we waited for a moment where we could tell the Swiss courts that we are confident the information we send to our colleagues in Egypt will stay with them,” Zellweger says.

If the Swiss government shares the information and then it is manipulated or misused in any way, this can be challenged by Mubaraks’ lawyers in court, and if they were to win, those whose assets have been frozen would be able to undo this decision in Swiss courts, Zellweger explains.

Since the risks are high, he continues, the Swiss government is waiting for a time when they’re confident they can demonstrate to the court four guarantees: that there is a separation of power between the judiciary and the executive branch in Egypt, that the information sent to the Egyptian prosecutor will remain confidential, that the death penalty will not be handed down to the defendants in the relevant case and that the defendants have been granted due process.

Switzerland is signatory to the European Convention for Human Rights, which prohibits it from sharing information with countries that still apply the death penalty. A way around this is for the Egyptian authorities to write a declaration to the Swiss authorities guaranteeing that the defendants in the case they’re asking support for will not be subjected to the death penalty.

However, death penalties still affect the process indirectly, Zellweger adds.

“They’re impacting indirectly in the sense that there’s an impression in Switzerland that these were summary judgments, not individual judgements. It will be decisive  what will be decided in higher courts,” he says, awaiting final verdicts in these cases.

Human rights organizations have pointed out the lack of due process in several mass death sentences issued over the past two years.

Since all decisions taken by the Swiss government in this matter can be challenged in Swiss courts, Zellweger says that trust in the Egyptian judicial system is crucial.

If Mubarak or any of those whose assets are frozen are convicted in Egyptian courts and the Swiss government orders the return of their money to Egypt, they can challenge this decision in a Swiss court arguing that Egyptian courts are not to be trusted. The Swiss court would then have to rule on whether the Egyptian trial lives up to international standards.

Zellweger asserts that the Swiss and Egyptian authorities are in close contact on the matter, adding that the Swiss prosecution is pleased with its communications with its Egyptian counterpart. 

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