Former president Mohamed Morsi's Constitutional Declaration in November 2012, as well the rapid increase in death sentences issued after the ouster of Morsi in 2013, largely contributed to delaying the process of retrieving the Mubarak regime's frozen assets in Switzerland, according to Swiss officials.
In a meeting with Egyptian journalists in Bern at the Swiss Federal Department of Foreign Affairs (FDFA), Valentin Zellweger, the director of the task force on assets recovery as well the head of the Directorate of International Law at the FDFA explained why Egypt has not retrieved yet the assets of Mubarak regime members four years after Mubarak's ouster in 2011.
"What we need as the Swiss government from the Egyptian government is an indication, or rather a legal evidence, from an Egyptian court sent to the Swiss prosecutor general that the money Mubarak and his regime men put in Swiss banks actually came from illegal sources, whether through corruption or embezzlement or money laundry," he said, adding that this move would allow the Swiss prosecutor general to open a case against Mubarak and his regime in Switzerland.
Half an hour after the announcement that Hosni Mubarak had stepped down from power on 11 February 2011, the Swiss government announced that it had frozen the assets of 30 Mubarak regime figures.
"No other country in the world did that, or was clear about the assets like Switzerland," Zellweger said.
The list includes the ousted president, his sons and prominent figures accused in the media during the 18-day popular uprising of corruption. (The complete list is below). Due to bank secrecy laws in the past, Switzerland — as a world centre of offshore financial services — attracted from around the globe a number of dictators, decades before other offshore havens, like the Cayman Islands, emerged.
"That list is an initial one and is different from the one the Swiss prosecutor is working on, but we acted fast to make sure that those names on the list do not take their money to another country," Zellweger said, revealing that the Swiss prosecutor also found additional funds for some of the names on the list.
Based upon Swiss government's intial estimate, the total amount of assets that belong to Mubarak regime figures in Swiss banks is equal to CHF 650 million, or "nearly $698 million (LE5 billion)." In the year 2011, the first committee assigned to retrieve Mubarak regime assets from abroad issued a statement saying that Mubarak and company had no less than $1.1 billion in the EU alone. The first Egyptian committee assigned officially by the Egyptian government to retrieve illicit assets from abroad was head by Essam El-Gohary, head of the Illicit Gains Authority at the time.
According to Zellweger, there should be legal cooperation and exchange of information between the Swiss prosecutor general and his Egyptian counterpart in order to build parallel cases against Mubarak and his regime in Egypt and Switzerland.
"To send confidential information regarding the funds from the office of the Swiss prosecutor general to his Egyptian counterpart, the Swiss government has to go to a Swiss court to ask for an order to allow the information exchange," he explained, elaborating in detail what has happened on the Swiss end.
Side effects of political upheavals
In November 2012, former Islamist president Morsi issued his controversial Constitutional Declaration by which Egypt's prosecutor general, Abdel-Meguid Mahmoud, was dismissed. As the declaration spurred anger and unleashed a series of protests and general unrest in Cairo, it affected negatively progress on retrieving Mubarak regime assets in Bern.
"Morsi dismissed the Egyptian prosecutor 20 days before the case to allow the exchange of information in front of the Swiss court, and as a result of that decision back in Cairo, the court decided to reject the request of the Swiss government," Zellweger explained.
The declaration of Morsi, according to the Swiss official, was an indication that there was no separation of powers in Egypt, as Morsi, head of the executive, interfered directly in the judicial authority.
The separation of powers is among the requirements of Swiss law to exchange confidential information. That was the first stumbling block facing the Swiss government.
"We decided to wait and see what was happening in Cairo before we would go to the court for an appeal," Zellweger said.
In July 2013, Morsi, following mass protests against his rule, was ousted and a new administration in Egypt took power. Promises of restoring Mubarak regime assets and funds were renewed in Cairo.
Still, criminal courts in Egypt began to issue unprecedented mass death sentences on hundreds of Morsi supporters in violence as well terrorism-related trials, causing international outcry. This was another stumbling block for retrieving Mubarak regime assets from Switzerland.
"The death sentences are impacting directly the case, as Switzerland cannot share confidential information with countries that still have the death penalty in their penal codes," Zellweger told Egyptian journalists in Bern.
Nevertheless, he made clear that the Swiss government knows that those sentences are initial verdicts, and that it is waiting for the final verdicts, which would be decisive. Another workaround proposed is to seek leave from a Swiss court that at least in the case of Mubarak regime funds in Switzerland, death sentences in Egypt would not be taken into account.
"We as a government are just waiting for the right moment to go back to the court, so Mubarak or his men won't be able to appeal against the court ruling," Zellweger said.
If an Egyptian court could to prove via a conviction that Mubarak and regime figures gained their money held in Switzerland illegally, in a fair trial with fair proceedings according to international standards, Egypt could then send an official letter to the Swiss prosecution to retrieve the frozen assets. The Swiss prosecutor would then issue a decision to send the funds back, according to the Swiss government.
"Nevertheless, the decision of the Swiss prosecutor can by appealed by Mubarak or his men in front of a Swiss court, and so a Swiss judge will determine its final fate," Zellweger said.
Currently, the Swiss government extended a freeze on Mubarak regime assets in the country for another three years. A new proposed law is currently before the Swiss parliament to extend freezing periods in general.
"Already the process to retrieve the assets will take time, but it depends on cooperation between the two governments," Zellweger told Egyptian journalists, citing the example of Nigeria where nearly $750 million in illicit funds amassed by dictator Sani Abacha in Swiss banks was returned early 2015.
"On the other hand, there are other countries that do not ask back the money or assets of dictators, like in the case of Congo. Switzerland had to return $7 million only to the family of late Mobutu Sese Seko, after years of his assets being frozen," Zellweger said.
"You cannot give a gift to someone who does not want it," he added.
"We need cooperation from the other government," Zellweger said.
When asked the position of the Swiss government on the latest developments in the cases Mubarak currently faces in court after being acquitted in several trials, Zellweger said that the Swiss embassy is following the matter closely.
To date, ousted president Mubarak was sentenced to three years in a maximum security prison on charges of embezzlement in the case known in the media as the "presidential palace case."
Mubarak's sons, Alaa and Gamal, are also convicted in the same case and were sentenced to three years each in a maximum security prison. The Mubaraks were also fined LE125 million and were ordered to return LE21,107,000 to the state.
The Mubaraks are convicted of embezzling LE125 million ($17.9 million) originally allocated for developing communications centres at the presidency in order to establish and develop their private buildings.
In early June, the Cairo Court of Cassation ordered that the former president stand another retrial on charges of unlawfully killing protesters during the 2011 protests. This would be the third retrial and the final one for Mubarak according to Egypt's legal system.
List of Egyptian officials with frozen assets in Switzerland
This is the initial list released online by the Swiss government in February 2011. It includes 30 names:
Former President Mohamed Hosni Mubarak and his wife Suzanne Thabet
Gamal Hosni Mubarak and his wife Khadija El-Gamal
Alaa Mubarak and his wife Heidi Raskh
Mounir Thabet, Mubarak's brother-in-law
Businessman Mohamed Magdy Raskh, Alaa Mubarak's father-in-law, and his wife Mervat Eid
Gamal Abdel Aziz, Mubarak's late secretary, and his wife Magda El-Bandary
Former Minister of Housing Ahmed El-Maghrabi
Former Minister of Tourism Zoheir Garana
Former Minister of Interior Habib El-Adly and his wife Elham Sharshar
Sherif Habib El-Adly
Businessman Ahmed Ezz
Former Minister of Industry Rashid Mohamed Rashid
Businessman Hussein Salem
Khaled Hussein Salem and his wife Ain El-Hayah Mossad
Former Minister of Housing Ibrahim Soliman and his wife Mona El-Monayeri
Businessman Yassin Mansour and his wife Sherin Kamel
Former Prime Minister Ahmed Nazif
Late Prime Minister Atef Ebeid and his wife Nagd Hamda
Former Minister of Oil Sameh Fahmy and his wife Nahed Tawfik