Will the Swiss Government Condone Gross Human Violations in Returning Stolen Assets to Uzbekistan?

The Swiss take pride in their nation’s uncompromising defense of human rights. Its diplomats offer unwavering support for the rights of the oppressed in international fora; its NGOs provide generous support to human rights defenders around the world, and as home to the United Nations Human Rights Council and other UN human rights agencies, Geneva is the center of the global discourse on human rights. But if recent press reports are to be believed (here [German] and here [English]), the Swiss government may be ready to ignore gross human rights violations perpetrated by the government of Uzbekistan.

The issue is part of the struggle over how to return the several hundred million dollars that Gulnara Karimova, daughter of its recently deceased dictator, stashed in Switzerland with the help of lackeys Gayane Avakyan and Rustam Madumarov. The monies are allegedly bribes international telecommunications companies paid Karimova to operate in Uzbekistan.

The Uzbek government is seeking their return while Uzbek civil society argues that because the government is so corrupt, the Swiss government should follow the precedent established in a Kazakh case and return the monies directly to the Uzbek people.  If the Swiss government does not, and does return the money to the Uzbek government, it will be forced to condone grave human rights abuses Avakyan and Madumarov have suffered at the hands of the Uzbek government.

The United Nations Convention Against Corruption gives the Uzbek government a right to request any funds Avakyan and Madumarov have involved in the Karimova hide in Switzerland, but it must present Switzerland with a legal basis to support return. The basis with Avakyan and Madumarov are agreements both signed giving up any claim they might have to the funds. But by any measure these agreements are the result of multiple violations of their most basic rights.

Avakyan and Madumarov are serving long sentences in an Uzbek prison after convictions before a secret military tribunal.  Reports are that both were denied the right to lawyers of their own choosing and were not present in the courtroom during the trials against them. Torture is rampant in Uzbek prisons, where visits by the International Committee of the Red Cross (founded in Switzerland in 1863) or other independent monitors is not allowed. The only reported contact Switzerland has had with the two is a short interview in late 2016 where they begged Switzerland to return the money to the Uzbek government in a scene termed “embarrassingly poignant.”  Moreover, in April, the Uzbek government refused to provide the New York Times any information on Avakyan or the status of her case.

As a strong supporter of human rights, how can the government of Switzerland accord the Avakyan and Madumarov agreements any validity?  The agreements were signed only because the two were convicted without due process, and in prison they were likely tortured or threatened with torture if they did not sign.  To give the agreements reached under such duress any legal weight would require the Swiss government to acquiesce in multiple violations of Avakyan and Madumarov’s rights, and indeed it could be argued that this acquiescence makes it complicit in the violations.

Moreover, Swiss law would seem to bar the government from returning the assets. The Swiss constitution imposes upon the government a duty to respect international law, a duty which, a recent treatise on Swiss law explains, requires it to reject legal assistance requests when the requesting country fails to abide by the basic human rights guarantees of international law.  There is too a Swiss statute barring the government from cooperating in criminal matters “if there are reasons to believe that the foreign proceedings” do not meet the procedural requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms or the International Covenant on Civil and Political Rights.

The way for Switzerland to meet its obligations under UNCAC without violating its human rights obligations or domestic law is to insist that Avakyan and Madumarov be retried under fair and open proceedings.  If, as almost certainly would be the result, they are judged accomplices to wrongdoing by Karimova, their assets can then be lawfully seized.  And indeed, if the current government agrees to a retrial under these conditions, it would go a long way towards proving its claim that since the death of Karimova’s father it has changed.  It would provide substance to the new leadership’s assertions that it has turned over a new leaf and now fully respects the rights of its citizens.

This process may indeed be what Switzerland and Uzbekistan have agreed to as part of the return of the assets. But because the proceedings involving Avakyan and Madumarov and the Uzbekistan government’s asset recovery request are cloaked in secrecy, neither its citizens or even parliamentarians know. The Swiss government should give a full account of how it intends to deal with the Uzbek request.  It owes it to its citizens to allay any fears that it might be backtracking on the nation’s historic commitment to human rights.

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