Facts
The Republic of the Philippines requested Switzerland's assistance in a criminal proceeding to recover assets allegedly acquired illegally by Ferdinand Marcos, his relatives, and persons close to him in the exercise of their public functions. Switzerland froze the assets of several foundations and companies, including Maler 1, Maler 2, and Arelma Inc., as well as those of Palmy, Avertina, and Vibur Stiftung, and authorized the transfer of bank documents to the Philippines.
The heirs of Ferdinand Marcos, Imelda Marcos, and the concerned foundations lodged an appeal against the decisions to return these assets, arguing that the conditions for early return were not met. The Federal Court was seized of the case and had to rule on whether the assets could be returned to the Philippines without the existence of an enforceable judgment rendered in the requesting state.
Considerations
Interpretation of Article 74a para. 3 IMAC
Article 74a para. 3 IMAC provides that the return of assets may be made at any stage of the foreign proceedings, generally on the basis of an enforceable decision rendered by the requesting state. However, the Federal Court considered that this provision leaves a margin of appreciation to the mutual assistance authorities to decide whether the conditions for early return are met.
Conditions for early return
For early return to be possible, the following conditions must be met: the illicit origin of the assets must be evident, Switzerland must have an interest in the immediate restitution of the assets, and the Philippines must guarantee a restitution or confiscation procedure in accordance with UNO-Pakt II.
Third-party rights
Third-party rights, within the meaning of Article 74a paras. 4 and 5 IMAC, do not preclude the early return of assets. The claims of the heirs of Ferdinand Marcos and the concerned foundations are not real rights that could…