Monday, January 28, 2008

Words from a retired crime-fighter

Bernard Bertossa, a former Swiss prosecutor-general, has been a relentless campaigner against corruption, money-laundering and crime in Europe. He retired a few weeks ago, and, freer to speak his mind, he has just given a fascinating interview with Le Monde newspaper. If you read French, click here for the full interview.

Bertossa was one of the seven signatories of the “Appel de Geneve” – the Geneva Appeal (of October 1996) – which was c0-signed by some of Europe’s finest, most senior, and most experienced legal minds. It is a short document, describing the existence of a shadow world in Europe, “the Europe of tax havens” in which international crime and international corruption became intertwined with, and grew rapidly as a result of, international financial liberalisation, spreading noxious roots deep into the political systems of some of our most respectable institutions. Cross-border secrecy and judicial obstacles make national borders into semi-permeable membranes, allowing the criminals through but stopping the forces of law and order.

Like the “Elf Affair” which we recently commented about, the Appel de Genève has been largely ignored in the English-speaking world. But it has had important effects in continental Europe which, as we recently indicated, is now leading the global fight against secrecy jurisdictions.

The Appeal was a rousing call for judicial cross-border co-operation: for the emergence a new European judicial space where crime-fighting magistrates in one country are allowed to co-operate freely with those in other countries to catch the crooks. Like so many things that we comment about, this is an astonishing gap in the fabric of the modern system of nation states.

This new judicial space in Europe that the Appel de Genève called for: does it exist, Bertossa was asked.

No. As regards the fight against grand financial crime, this judicial space does not yet exist. As in 1996, there is national justice, confronting international crime. There has been some progress – such as the European arrest warrant and harmonisation of procedures for seizing goods. Mutual assistance on judicial matters is going faster, but . . . magistrates remain trapped inside their borders and depend on the good will of others to go forward with their financial enquiries.

The main obstacle to co-operation on these crucial matters is

judicial nationalism. Sovereignty (in the European Union) has been ceded in almost all areas; justice is again the last place where sovereignty is holding out.

Bertossa was asked about a working group in France currently looking at the decriminalisation of business law; this was, Bertossa said, the “Berlusconi way." (Bertossa had struggled with Berlusconi before) These changes in France, if they go ahead, would make it easier to commit financial crime, by reducing the penalties.

Bertossa also pointed out a key difference between many continental European legal systems, and those of the “Anglo-Saxon countries” of the UK and the US. Under the French system, investigating magistrates (unlike the prosecutors) are generally more independent of political power. (See a good, brief description of the differences here.) In this context, Bertossa was asked of the shocking political interference by UK Prime Minister Tony Blair over the recent Saudi arms scandal, which has spectacularly undermined the United Nations’ Convention Against Corruption. The impact of Blair's intervention will be felt for many years to come:

It would be hard to imagine, even in France, a minister or a Prime Minister openly saying to a magistrate that he should stop his enquiry. Or at least he would use complex, underhand tricks to achieve it. In Switzerland, it seems inconceiveble. In England, it remains possible.

Bertossa said that while Swiss bankers were more prudent about accepting dirty money than they used to be, and while there are judicial actions for money-laundering, these cases are less numerous, and less public, than before.

Is this because there is less dirty money in Switzerland than before, or that the political authorities are less inclined to look for it? I do not know. . . . certain dossiers, which were opened during my time, are now lost in the sand.

And he had a final word for Britain, on the fabled “Abacha Money” – billions of dollars stashed in Switzerland, the United Kingdom and the United States by the notoriously corrupt Nigerian dictator Sani Abacha. Switzerland has restituted some of this money, via the Bank for International Settlements. What have the other countries done?

Nothing. In the Abacha Affair, there was more money in London than in Switzerland, but not a single penny has returned yet. As for the United States, they have a philosophy of non-restitution.

But we would like to finish on a more upbeat note. In between the lines of Bertossa's comments, we do detect progress on some of these often-ignored but absolutely crucial matters within Europe. This progress is excruciatingly slow, extremely patchy, and there is a very, very long way to go indeed. But this progress shows that change is possible.

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