INDIA AGAINST CORRUPTION & BAD GOVERNANCE STORY 64

INDIA AGAINST CORRUPTION & BAD GOVERNANCE STORY 64

WILL PUBLISH ARTICLES REGULARLY ON CORRUPTION / BAD GOVERNANCE IN INDIA . PASS ON TO AS MAY HONEST INDIANS AS POSSIBLE

http://brighemantmahajan.blogspot.com/One can go in for a PIL in the supreme Court with this.
Sunder

'Politically Exposed Persons' Law to Expose Indian Leaders

Since we are talking of the recovery of more than a trillion US dollars of the nation's wealth, as also the opportunity of exposing / shaming / punishing the individuals  involved, isn't it well worth pursuing ? The opportunity has come about after the Swiss have enacted the act in October 2010. May be the people concerned have yet to react. I hope that they do sooner than later

English is not an official language of the Swiss Confederation. This translation is provided

for information purposes only and has no legal force.

Federal Act

on the Restitution of Assets of Politically Exposed Persons

obtained by Unlawful Means

 

Restitution of Illicit Assets Act (RIAA)

of 1 October 2010

 

The Federal Assembly of the Swiss Confederation,

based on Article 54 paragraph 1 of the Federal Constitution1, and

having examined the Federal Council Dispatch of 28 April 20102,

 

decrees:

 

Section 1: Subject Matter

 

Art. 1

 

The present Act governs the freezing, forfeiture and restitution of assets of politically

exposed persons or their close associates in cases where a request for mutual assistance in

criminal matters cannot produce an outcome owing to the failure of state structures in the

requesting state in which the politically exposed person exercises or exercised office

(country of origin).

 

Section 2: Freezing of Assets

 

Art. 2 Conditions

 

The Federal Council may order the freezing of assets in Switzerland with a view to the

instigation of forfeiture proceedings under this Act, providing the following conditions

are fulfilled:

a. The assets have been secured provisionally in the context of a process of mutual

assistance in criminal matters instigated at the request of the country of origin.

b. Powers of disposal over the assets rest with:

1. individuals who exercise or have exercised a high public office abroad (politically

exposed persons). This category includes specifically heads of state

or government, high-ranking politicians, high-ranking members of the administration,

judiciary, armed forces or national political parties, and senior

executives of state-owned corporations of national importance, or

2. natural or legal persons who are closely associated with politically exposed

persons for family, personal or business reasons (close associates).

c. The country of origin is unable to satisfy the requirements of legal assistance proceedings

owing to the total or substantial collapse, or the unavailability, of its national

judicial system (failure of state structures).

d. The safeguarding of Swiss interests demands that the assets be frozen.

1 SR 101

2 Federal Gazette 2010 2995

2

 

 

Art. 3 Duration

 

1 Assets remain frozen until a legally binding ruling on their forfeiture is made.

2 If no forfeiture proceedings are instigated within ten years of the freezing order

taking effect, the freeze shall be lifted.

 

Art. 4 Amicable settlement

 

1 The Federal Council may instruct the Federal Department of Foreign Affairs

(FDFA), while the asset freeze is in force, to seek an amicable settlement that permits

the full or partial restitution of the frozen assets. Articles 8–10 apply by analogy

to such restitution.

2 The amicable settlement must be approved by the Federal Council.

3 If the Federal Council approves the amicable settlement, the asset freeze shall be

lifted.

 

Section 3: Forfeiture

 

Art. 5 Procedure

 

1 At the request of the FDFA, the Federal Council may instruct the Federal Department

of Finance (FDF) to take legal action before the Federal Administrative Court

to enable frozen assets to be forfeited.

2 The Federal Administrative Court shall decide on the forfeiture of assets on the

basis of the following criteria:

a. The power of disposal is held by a politically exposed person or his or her

close associates;

b. They have been obtained by unlawful means; and

c. They have been frozen by the Federal Council pursuant to this Act.

3 No statute of limitations in respect of criminal prosecution or penalties may be

invoked.

4 Should mutual legal assistance proceedings in criminal matters resume, forfeiture

proceedings shall be suspended until a legally binding ruling has been issued in

respect of the legal assistance proceedings.

 

Art. 6 Presumption of unlawful origin

 

1 The presumption that assets are of unlawful origin applies where

a. the wealth of the person who holds powers of disposal over the assets has

been subject to an extraordinary increase that is connected with the exercise

of a public office by the politically exposed person; and

b. the level of corruption in the country of origin or surrounding the politically

exposed person in question during their term of office is or was acknowledged

as high.

Restitution of Assets Act

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2 The presumption ceases to apply if it can be demonstrated that in all probability the

assets were acquired by lawful means.

 

Art. 7 Third-party rights

 

The following categories of asset may not be seized:

a. those over which a Swiss authority can lay claim;

b. those to which a person who is not a close associate of the politically exposed

person has acquired rights in rem in good faith:

1. in Switzerland, or

2. abroad, if they are the object of a judicial decision which can be recognised

in Switzerland.

 

Section 4: Restitution

Art. 8 Principle

 

The objectives of the restitution of forfeited assets are the following:

a. to improve the living conditions of the people of the country of origin, or

b. to strengthen the Rule of Law in the country of origin and to fight the

impunity of criminals.

 

Art. 9 Procedure

 

1 Seized assets shall be returned in the form of financing for programmes of public

interest.

2 The details of restitution may be governed by an agreement between Switzerland

and the country of origin.

3 Such an agreement may govern, in particular

a. the nature of the programmes of public interest that are to be financed by the

assets that have been returned;

b. the way in which the returned assets are to be used;

c. the parties involved in restitution;

d. checks and monitoring with regard to how the returned assets are being used.

4 The Federal Council is responsible for concluding such an agreement.

5 If no agreement can be reached with the country of origin, the Federal Council

itself shall determine the process of restitution. In particular, it may return the forfeited

assets via international or national institutions and order supervision by the

FDFA.

4

 

 

Art. 10 Procedural costs

 

1 A flat-rate charge of no more than 2.5 per cent of the seized assets may be debited

for the account of the Confederation or the cantons to cover the costs of freezing and

returning the assets.

2 The Federal Council shall determine this flat-rate charge on a case-by-case basis.

 

Section 5: Legal Redress and Cooperation between Authorities

Art. 11 Appeal

 

1 Orders issued by the Federal Council to freeze assets may be challenged by an

appeal to the Federal Administrative Court.

2 The appeal does not have a suspensive effect. Article 55 paragraph 2 of the Federal

Act of 20 December 1968 on Administrative Procedure3 does not apply.

3 No objection may be raised on the grounds of unreasonableness.

4 Proceedings and means of legal redress are otherwise governed by the general

provisions on the administration of justice at federal level.

 

Art. 12 Cooperation between authorities

 

1 The Federal Office of Justice shall notify the FDFA when a request for mutual

legal assistance in criminal matters concerning assets frozen in Switzerland of politically

exposed persons or their close associates has proven unsuccessful.

2 At the request of the FDFA or the FDF, federal and cantonal authorities must

provide all such information as is required to enforce this Act.

 

Section 6: Final Provisions

 

Art. 13 Amendments to current law

Amendments to current law are set out in the Appendix.

 

Art. 14 Transitional provisions

 

1 Assets already frozen on the commencement of this Act on the basis of a Federal

Council order issued pursuant to Article 184 paragraph 3 of the Federal Constitution,

because a request for mutual legal assistance in criminal matters has proven unsuccessful,

shall remain frozen until a decision on their forfeiture enters into force in

accordance with this Act.

2 The asset freeze shall be lifted if forfeiture proceedings have not been instigated

within one year of the entry into force of this Act.

3 Federal Act on Administrative Procedure, SR 172.021

Restitution of Assets Act

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Art. 15 Referendum and commencement

 

1 This Act is subject to an optional referendum.

2 The Federal Council shall determine the commencement date.

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Annex

(Art. 13)

 

Amendments to current law

 

The following federal acts are amended as described below:

 

1. Federal Act of 17 June 2005 on the Federal Administrative Court4

Art. 33 b point. 3

 

Appeals are permissible against rulings:

 

b. of the Federal Council concerning:

3. the freezing of assets pursuant to the Federal Act of 1 October 2010 on

the Restitution of Assets of Politically Exposed Persons Obtained by

Unlawful Means5;

Art. 35 d

The Federal Administrative Court shall rule as the court of first instance on the

following subjects of legal action:

d. petitions for the forfeiture of assets pursuant to the Federal Act of 1 October

2010 on the Restitution of Assets of Politically Exposed Persons Obtained by

Unlawful Means6.

Art. 44 para. 3

3 Court costs and compensation are governed by Articles 63–65 of the Administrative

Procedure Act7.

 

2. Federal Act of 11 April 1889 on Debt Collection and Bankruptcy8

Art. 44

 

Objects that have been seized under federal or cantonal criminal or fiscal law or

pursuant to the Federal Act of 1 October 2010 on the Restitution of Assets of Politically

Exposed Persons Obtained by Unlawful Means9 shall be realised in accordance

with these laws.

4 Federal Act on the Federal Administrative Court , SR 173.32

5 SR ...

6 SR ...

7 Federal Act on Administrative Procedure, SR 172.021

8 Federal Act on Debt Collection and Bankruptcy, SR 281.1

9 SR ...

Restitution of Assets Act

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