Lawyer Monthly - December 2024

trail linking potentially illicit assets seized by the state to how they were stolen from the victim. Difficult questions may arise where illegal assets are mixed with legally obtained funds and then redirected to an investment. However, where such a link can be established (most commonly by means of bank records), the victim is entitled to have these funds returned directly in the criminal court’s final judgment (restitution). If the stolen funds are no longer available (used up or inaccessible), the court can seize other assets of the accused to the countervalue of the assets initially stolen, enforcing this compensation claim against the accused’s remaining legal assets. If other redress is not forthcoming, the civil complainant may request that this compensation claim be allocated to the damages suffered, with the damages claim ceded to the state. Note that in these proceedings, if no direct link is established between the seized assets and the damages suffered, the civil complainant is no better off than other creditors and may find itself in debt enforcement proceedings alongside other parties with claims against the perpetrator. Therefore, investing effort into identifying the path that the defrauded funds took may significantly improve the victim’s chances of obtaining full restitution. What are some of the main legal hurdles when it comes to enforcing international judicial decisions in Switzerland, particularly in relation to financial crimes? How does Swiss law accommodate these enforcement requests? Switzerland is generally a favorable jurisdiction for enforcing foreign court decisions. The country has a broad network of state treaties and is wellconnected internationally. However, it is important to differentiate between enforcing criminal judgments on the one hand and civil (damages) judgments on the other. Where a foreign judgment clearly includes a payment obligation to a victim, and the victim requests recognition and enforcement locally, the procedural steps are reasonably straightforward. The party may request a local court to recognize the foreign judgment, preferably in a jurisdiction where the party suspects or knows assets are located. The claimant must demonstrate the existence of assets belonging to the judgment debtor and show that the judgment is enforceable in the country of origin. If no (limited) grounds for refusal exist, the court will WWW.LAWYER-MONTHLY.COM 67 In your experience, what are the most effective legal avenues for recovering illegally acquired assets within Switzerland? Are there specific procedures that make asset recovery more successful in international cases? As mentioned earlier, taking part in the criminal proceedings as a civil complainant (with full rights as a procedural party) and securing a damages judgment is an important first step to recovering assets. During the criminal trial proceedings, and based on evidence recovered by the prosecution (or obtained at the request of the civil complainant), civil complainants can apply for the seizure of illicit assets by the prosecution. Additionally, civil complainants can demonstrate the paper The revised Swiss Criminal Procedure Code streamlines access to key evidence by limiting document sealing grounds.

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