REPUBLIC AND CANTON OF GENVA Geneva. 25 August 2008 Public Prosecutor Of the Republic and Canton of Geneva ORDER TO CLOSE THE CASE In view of proceedings P/N 105 1997 directed against Benazir BHUTTO Asif Ali ZARDARI and Jens SCHLEGELMILCH, Considering that the following relevant elements result from the proceedings. 1. Late Benazir BHUTTO was the Prime Minister of the Republic of Pakistan from December 1988, and from 1993 to 1996. 2. On 3 October 1997, the public Prosecutor of Pakistan formed a request for international judicial assistance in criminal matter addressed to the examining magistrate of the Canton of Geneva in the frame of an investigation directed against the late Benazir BHUTTO, former Prime Minister of Pakistan her husband ASIF ALI ZARDARI and her mother Nusrat BHUTTO suspected to have benefited from an undue enrichment while carrying out their duties. On 6 November, 1997, the Public Prosecutor of Pakistan completed his request specifying the nature of the activities that were prosecuted, i.e. that the members of the regime of late Benazir BHUTTO would have benefited from undue enrichment in the frame of public works contracts and that the facts that were described could be qualified under Swiss Law, according to him, as theft breach of trust and bribery. 3. The Public Prosecutor of Pakistan gave notice that he was carrying out in his country criminal proceedings for bribery, directed in particular against late Benazir BHUTTO, her husband and her mother would have personally benefited from unjustified payments, in particular in relation with the conclusion by various Pakistani Ministries of contracts entered into with Swiss Companies of goods inspectorate i.e. SGS SOCIETE GENERALE DE SURVEILLANCE SV (thereinafter "SGS") and COTECNA INSPECTIONS SA (HEREINAFTER "(COTECNA") late Benazir Bhutto was suspected of having deliberately agreed and in certain cases of having deliberately participated in the bribery activities of her husband. 4. The parallel with the proceedings relating to the international judicial assistance criminal proceedings for money laundering were initiated in Geneva on 3 November 1997, in particular against Asif Ali ZARDARI, late Benazir BHUTTO and jens SCHLEGELMILCH and examining Magistrate was put in charge that same day. 4.1. The Geneva Proceedings encountered various states. On 30 July, 2003 the examining Magistrate rendered sentence order against the implicated persons for simple money laundering. The Court ruling on the opposition revoke the aforementioned sentences and returned the file to the Public Prosecutor. On 22 December 2003 the Public Prosecutor returned the file to the examining Magistrate asking him to complete his investigation. The examining Magistrate returned the file to the Public Prosecutor's Office to which the matter was eventually referred to on 19 March 2008. 4.2. In the frame of these proceedings Asif Ali ZARDARI and Jens SCHLEGELMILCH were indicted for money laundering being suspected of having with late Benazir BHUTTO Hans FISCHER of Robert MASSY, respectively General Manager of SGS and Director of CONTECNA, from spring 1994 to autumn 1997 committed acts proper to hinder the identification of the origin, the discovery ad seizure of the commissions agreed in order to obtain the conclusion of a contact of customs inspectorate in Pakistan between SGS CONTECNA and Pakistan, it being specified that the said contact could not have been entered into without the violation by late Benazir BHUTTO of the duty of her position. Late Benazir BHUTTO was indicted on the same grounds. The representative of SGS and CONTECNA were also indicted it being noted that proceedings against them were closed by the Public Prosecutors office in April of 2001. 4.3. The indicted persons protested against the charges. As she was heard by the examining magistrate, Benazir BHUTTO indicated that she never received any amounts from SGS CONTECNA and that she never influenced or participated to the decision allocating the contracts to the companies by Pakistan Jens SCHLEGELMILCH indicated to examining magistrate that he never bribed any officials in Pakistan that he only played the role of remunerated lobbyist activity that he considers as legal. Asif Ali ZARDARI could not be auditioned but he adopted globally the same position as Jens SCHLEGELMILCH, indicating that he did not participate to the attribution process of the contracts to SGS/CONTECNA. For their part the representatives of SGS and of CONTECNA indicated that the commission paid had been deducted from the profit margin of the concerned companies and that these commission had not led to an increase of the price of the services agreed upon with Pakistan. 5. During the investigation, the examining magistrate was leak to hear various witnesses upon request of the parties. 5.1. Was heard as witness Makhdoom SHAHABUDDIN who was the Minister of finance and Economic Affairs of Pakistan from 1994 to 1996. He expressed himself about the SGS and CONTECNA litigious contracts as well as about the circumstances which led to their conclusion. He indicated, in particular, that the decision to entrust a private company with certain tasks of Customs Inspectorate, as well as the choice of this company, namely SGS and of the detailed terms of the contract, were made before November, 1993, i.e. By the SHARIF Government which had proceeded the once late Benazir BHUTTO. When the government changed in November 1994, the contact had not yet been concluded. Certain elements had to be forced on SGS for the sake of the country. The talks with SGS and CONTECNA had been conducted by the representatives of the CBR (Central Board of Revenue) and representatives of the Customs. Makhdoom SHAHABUDDIN explained that neither her not late Benazir BHUTTO had attended and / or participated to these talks, which had taken place on the basis of the offers of the proceeding government. He added that he did not know whether, in relation to these offers, provisions had been made for commissions in favour of the members of the proceeding government for their entourage. Yet he had no reason to think that said government took "bribes". He also declared that he had never been informed of commissions provided in favour of Late Benazir BHUTTO and / or her husband. 5.2. Was heard as well as witness, through rogatory commission in Canada. Javed TALAT, who had been the Secretary of the government of Pakistan at the Ministry of Finance from July 1994 to March 1996. The witness globally declared that he had participated neither to the invitation to tender started in 1993, not to the selection of the tenderers. The evaluation of the various propositions received had been made by the CBR, when he took the direction of said office, the names of the responsible person having been led to issue opinions or to participate to the decision on the attributions. Yet he did not remember these names. Javed TALAT further indicated that in 1993 he had been requested by Mr. QURESHI to prepare a contract with SGS for the verification of importations. He had examined the question and prepared a report to the intention of the latter, in which he had indicated that the relation between the costs and benefits resulting from the contract were not favourable to the Pakistani Government. Hence he had not finalized this agreement with SGS. The persons who finally had discussed and prepared said contract with SGS were M. SIDIQUI, the customs officers, the director of customs and senior civil servants. This choice had not been imposed by Late Benazir BHUTTO. Javed TALAT added that he was not informed about the interventions of the latter in the talks. On the other hand he knew that the conclusion of the contract had been done in 1994, during a meeting chaired by late Benazir BHUTTO and to which the main ministers and participated. The final decision to conclude the contract had been unanimous. Javed TALAT finally declared that he had no knowledge of commissions which would have been paid to late Benazir BHUTTO and to her husband by SGS and CONTENCA in relation to this government contract. 5.3. Was heard as well as witness Mr. Khalil AHMAD customs state officer employed as chief collector, chief of the south division of Pakistan at the time of the facts and chairman of the Evaluation Committee set up by the CBR. He indicated that in 1992, the Pakistani government inspection of importations. After an evaluation, the CBR had chosen three, while recommending to prime minister SHARIF the offer made by SGS. In April 1992, Mr. SHARIF had approved the offer at stake by a letter of intent to sent SGS. In 1994, the SGS / CONTENCA preposition had been re-examined by the committee he chaired himself and two essential phrases of the proposal, regarding the remuneration to SGS / CONTENCA and the duration and terms of the contract had been modified in favour of Pakistan. He had then submitted his report to CBR in August 1994, recommending the attribution of the contract to SGS / CONTENCA under he conditions modified in favour of Pakistan. His report was then presented by the CBR chief to the government during a meeting chaired by Benazir BHUTTO. The witness indicated that he had never been influenced in his evaluation work by any of the accused nor by any body. 5.4. Were heard as well as witnesses that London jewelers who had sold a set of jewels acquired among other with the commission paid by SGS / CONTENCA. Unlike what was mentioned in the aforementioned sentence orders, according to which said jewelers had declared that Benazir BHUTTO would have acquired personally said set of jewels said witnesses – who before hand had not been heard by the justice – indicated that they had indicated that they had never seen Benazir BHUTTO in their boutique and that she was not purchaser of said jewels. 6. As regards to the proceedings in Pakistan they were as follows. On 15 April 1999 the High Court of Justice of Lahore convicted Benazir BHUTTO and her relatives of whom Ali Asif ZARDARI to 5 years imprisonment and to a fine of USD 8.6 millions. On 06 April 2001 this decision was canceled by the Supreme Court of Pakistan which returned the file to the first judges for a new decision. Pakistan did not hold any new trial since that date even though Asif Ali ZARDARI was at the disposal of the Pakistani authorities among others because he was imprisoned there. On 5 October 2007 the President of the Republic of Pakistan issued a National Reconciliation Ordinance from which emerges notably at its section 7 that all procedures initiated in Pakistan or abroad before 12 October 1999 by the NAB (National Accountability Bureau of in reference to the NAB. i.e. against people who had a public term of office in Pakistan and which would still be pending at the state of inquiries or before a court were withdrawn. Benazir BHUTTO and her husband Asif Ali ZARDARI are concerned by this decision. Today this decision is definitive and enforceable. 7. On 27 December 2007, Benazir BHUTTO passed way. 8. On 1 June 2008 the Public Prosecutor of Pakistan sent through the Pakistani Embassy in Switzerland a letter dated 22 April 2008 in which he decalred the following: - the inspection contracts were allocated to SGS / CONTENCA by government officials in good faith in compliance with the law. - the international judicial assistance request to the Swiss Authorities was filed by the former government for political reasons. - the international judicial assistance request and its appendixes are withdrawn. - the Republic of Pakistan suffered no damage and therefore withdrawns its participation as civil party against Asif Ali ZARDARI Jens SCHLEGELMILCHand all third parties concerned by the proceedings - the public of Pakistan withdraws itself from every procedure which has been initiated in Switzerland whatever its nature initiated in Switzerland in this context. - finally the republic of Pakistan apologized for any inconvenience which may have been caused to the Swiss Authorities. 9. Benazir BHUTTO's death puts and end to the proceedings concerning her. As regards Asif Ali ZARDARI the Public Prosecutor of Pakistan after having initially involved Asif Ali ZARDARI dropped all charges against him as well as against Jens SCHLEGELMILCHis being noted the sentence pronounced in 1999 in Pakistan was revoked in 2001 that new trial has been held in Pakistan since then i.e. since nearly 7 years. Besides the Public Prosecutor of Pakistan believes today that the proceedings have been instituted for political reasons against Benazir BHUTTO and her husband. More than that Pakistan motivates the withdrawal of the proceedings underlying that the procedure of contract allocation under SGS / CONTECNA was not marred by irregularities admitting there with that it believes that no bribery act was done. At last, the testimonies collected in the file and reported above show no conclusive evidence which would allow to invalidate the final observation mad on the basis of the file by the public prosecutor of Pakistan. Therefore the proceeding will be closed. ON THESE GROUNDS THE PUBLIC PROSECUTOR 1) Closes the proceedings P/11105/1997 instituted against Asif Ali Zardri and Jens SCHLEGELMILCH. 2) Takes note that the proceedings P/11105/1997 are extinguished as regards Benazir BHUTTO. 3) Informs the parties in accordance with article 192 Swiss Penal Code that they may file an appeal against the present order to close the case by filing motivated submissions before the Clerk of the Accusation Chamber within ten days after receipt of the present decision. The Public Prosecution Daniel ZAPPELLI |
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