1. 3rd Annual Cross Border Litigation and Asset Recovery Forum 2015, Lagos, November 6, How criminal prosecutions can be used to improve recovery opportunities in civil fraud and other economic cases

2. Returning illicit funds:
Proactive approach
Strong Swiss anti-money laundering rules.
Restitution is an important pillar of Swiss policy combating illicit assets.
Switzerland has restituted approx. USD 1.8 billion to foreign states.

3. Returning illicit funds:
Peru (Montesinos): 2002 (USD 92 million);
The Philippines (Marcos): 2003 (USD 684 million); 
Angola I: 2005 (USD 24 million);
Kazachstan I: 2007 (USD 115 million),
Mexico (Salinas): 2008 (USD 74 million);
Kazachstan II: 2012 (USD 48 million)
Angola II: 2012 (USD 43 million);
Haiti (Duvalier): 2014 (USD 5,7 million); and
Republic of Nigeria (Abacha): 2005: USD 700 million.

4. Swiss criminal proceedings:
How can they aid to improve asset recovery?
Swiss criminal law as an effective instrument to assist in overseas economic crime cases
Experienced state prosecutors.
Tested court system.
Reliable jurisprudence,
Recognizable judgments.
Supportive stance towards other countries.
Effective instruments:
Money Laundering Reporting Office (MROS),
Data Protection Act access,
Criminal procedural rights of victims.

5. Swiss Criminal Law: The legal concept of a criminal organization
A new tool: Criminal Organisation
Introduced into Criminal Code in 1994.
crimes committed by mafia-type, highly organized secret groups.
Characteristics:
Three or more members,
Structure set up for undefined period of time
Allocation and exchangeability of duties,
No transparency,
Strict code of confidentiality,
Aim to commit serious crimes.

6. Swiss Criminal Law:
Advantages of proving the existence of a criminal organization
Legal presumption that all assets of a member of a criminal organization are under control of organization and of an illicit nature.
An incriminated member must prove the legitimate origin of the assets (reversal of the burden of proof).
No proof of link between assets in Switzerland and crimes abroad.
Simplification of investigation and time gains.
Public awareness (media) increases pressure on banks, authorities and courts -> increased likelihood of findings.
Wide and thorough investigations in many countries.
Settlements with minor targets more likely.

7. Jurisprudence by Federal Tribunal:
Can a government can be a criminal organization?
Concept successfully applied by the highest court in Switzerland in the case of General Abacha in 2005.
Provisional freezing of Abacha assets.
The Federal Tribunal found that the persons around General Abacha constituted a criminal organization.
Defendants had the right to prove the legitimacy of the acquisition of the assets.
Presumption was not refuted by accused and funds were eventually returned to Nigeria.
Recent settlement regarding the funds in Luxembourg.

8. Coordination of criminal proceedings
Strategic considerations
Keeping things in focus
Who takes responsibility where criminal investigations are being pursued in several countries?
Demonstrate how assets were stolen (modus operandi).
Defence teams are well staffed, trained and have large financial resources at their disposal – expect a tough fight.
KISS (Keep It Straight and Simple) your case. The defence will MILC the case (Make It Long and Complicated).
Try to maintain the moral high ground.
Apply pressure on all fronts simultaneously.
Avoid changes in administration and in the case leading team.

9. Thank you for your kind attention.
PRAGER DREIFUSS LTD