Facts
The Republic of Haiti submitted a request for judicial assistance to Switzerland in 1986, as part of a criminal procedure against Jean-Claude Duvalier and members of his family. The request aimed to freeze the Duvalier family's funds in Switzerland. The Swiss Confederation ordered the blocking of various accounts, including an account held by the Brouilly Foundation, whose beneficiary was Simone Ovide Duvalier, Jean-Claude Duvalier's mother.
The Investigating Judge of the canton of Geneva ordered the transmission of bank documents in 1988, but the procedure was delayed due to political instability in Haiti. In 2002, the Federal Council ordered the blocking of Jean-Claude Duvalier's assets and those of his entourage for three years. The request for judicial assistance was declared inadmissible in 2008 due to the statute of limitations.
The Republic of Haiti submitted a new request for judicial assistance in 2008, which was admitted by the Federal Office of Justice (FOJ). The Brouilly Foundation filed a public law appeal against the FOJ's decision, which was admitted by the Federal Tribunal.
Considerations
The Federal Tribunal examined the issue of the statute of limitations under Swiss law and found that the request for judicial assistance was inadmissible due to the statute of limitations. The Court considered that the coercive measure within the meaning of art. 5 IMAC was the seizure ordered in the new decision to initiate proceedings of June 27, 2008, and not the initial seizure of 1986.
The Court also examined the issue of dual criminality and found that the facts mentioned in the request for judicial assistance constituted participation in or support of a criminal organization within the meaning of art. 260ter SCC. However, the Court considered that the statute of limitations had intervened in February 2001 for the offense of participation in a criminal organization, and that the right to confiscate was also prescribed.
The Court further considered that the requested assistance measures…