Claim of the United States on Frozen Assets in the Context of an International Mutual Assistance Procedure in Criminal Matters

Facts

In 1986/1987, the United States requested the Swiss authorities to freeze certain accounts held by various individuals, including [H.], with Swiss banks and financial institutions. This request, based on the Treaty between Switzerland and the United States on Mutual Assistance in Criminal Matters (IMAC), was accepted by the Swiss Confederation. However, in 1990, the criminal charges against the persons targeted by the mutual assistance request were dropped by the US judicial authorities.

In 1992, after the United States had unsuccessfully requested the transfer of the frozen funds and assets in their favor on two occasions, the Federal Office of Police decided to reject the mutual assistance request, but maintained the asset freeze until June 30, 1992, to allow the requesting State to assert its interests in civil proceedings. The Federal Tribunal then rejected the appeal of the United States against this decision and maintained the freeze for a period of sixty days.

In May and June 1993, the United States declared that they were claiming ownership of the assets that were the subject of the attachment proceedings initiated against [H.] by various third parties, including [J.] and others. As the debt collection office had dismissed their claim of ownership, deemed to be late, the United States filed a complaint with the Supervisory Authority for Debt Collection and Bankruptcy of the Canton of Geneva, which annulled the decision of the office and instructed it to register the claim.

Considerations

The Debt Collection and Bankruptcy Chamber of the Federal Tribunal rejected the appeal of [J.] and others aimed at establishing that the claim of the United States was late and obtaining its rejection.

The Chamber considered that, although the DEBA does not set any time limit for filing the declaration of claim, it must be made within a short and appropriate period of time given the circumstances. However, the delay in announcing the claim is not contrary to good faith when the pursuing creditor knows that a specific third party could…