The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
• In the context of various criminal proceedings in connection with its football-related investigations, the Office of the Attorney General of Switzerland (OAG) has since December 2019 secured the forfeiture of around CHF 36.6 million held in frozen bank accounts in Switzerland and returned these funds to the entitled party. In September 2020 alone, the restitution of over CHF 20.5 million in unlawfully acquired funds was ordered.
In the course of its series of football-related investigations, the OAG opened several criminal proceedings in connection with former South American football officials. These included various criminal proceedings in connection with Nicolas Leoz, who was president of the South American Football Confederation CONMEBOL for many years, and with the former secretary general of CONMEBOL, Eduardo Deluca. Both were alleged to have abused their positions to the prejudice of CONMEBOL and to have unlawfully enriched themselves and possibly other persons.
The funds forfeited between December 2019 and September 2020 amounted to around CHF 36.6 million and were unlawfully acquired to the prejudice of CONMEBOL. As the party suffering harm within the respective criminal proceedings is doubtlessly known – the CONMEBOL – the forfeited funds will be returned directly to it. The restitution of funds to the party suffering harm and being entitled to them is required by law and serves to restore the lawful state.
The first criminal proceedings in this context were concluded in December 2019. The criminal proceedings were conducted against both Leoz and Deluca. The proceedings against Leoz were abandoned after his death in August 2019, with the result that the presumption of innocence continues to apply in his case. Deluca on the other hand was convicted by summary penalty order of complicity in multiple instances of aggravated criminal mismanagement (Art. 158 No 1 para. 3 in conjunction with Art. 25 Swiss Criminal Code). Despite the proceedings against Leoz being abandoned, more than CHF 16.1 million which the OAG had seized in the course of its proceedings in Switzerland was forfeited and refunded to CONMEBOL.
In September 2020, the OAG abandoned criminal proceedings conducted against Deluca. This was essentially because criminal proceedings are being conducted in Argentina relating to the same matter (thus avoiding double jeopardy); the OAG had provided the Argentinean authorities with mutual legal assistance in connection with this case. At the same time as abandoning its proceedings, the OAG also ordered that funds of around CHF 1.8 million seized in the criminal proceedings in Switzerland would be forfeited and refunded to CONMEBOL.
Also in September 2020, as part of criminal proceedings conducted against persons unknown, the OAG ordered the forfeiture of around CHF 18.7 million that the OAG had frozen in its proceedings in Switzerland, along with its restitution to CONMEBOL. Although the respective criminal proceedings are still ongoing, the restitution orders have already entered into force.
The various seizures of assets and restitutions in this context are an example of the way in which the procedural strategy in criminal proceedings (or in a series of related proceedings) may be determined by the cooperation and the coordination between the prosecution authorities in different countries. A key challenge in many criminal proceedings, not only in the football-related proceedings, is their complexity due to the international dimension of the matters under investigation, specifically because many of the parties to the proceedings live abroad, and because of the need to investigate cross-border business activities and money transfers involving several countries.
If, as in the present context, both the suspects and the presumed victims are of foreign origin, the parties to the proceedings live abroad, the alleged offences took place abroad and the only connection with Switzerland is that certain assets are to be found here, cooperation and coordination with the foreign authorities involved are indispensable. In view of the personal circumstances of the persons involved, the fact that it is easier to carry out compulsory and rehabilitation measures, the more direct access to evidence, etc. the foreign authority can take the lead in the actual prosecution. In this constellation, the prosecution authority in Switzerland therefore focuses on working by way of mutual legal assistance with the foreign state with more direct access (while respecting the Federal Act on International Mutual Assistance in Criminal Matters IMAC) as well as on the seizure, forfeiture or restitution of the assets held in Switzerland.
For further information on the two cases that have been concluded, the OAG is referring to the respective abandonment of proceedings orders and the summary penalty order. Requests for access may be sent to the Legal Services at the OAG.
The OAG will not provide further information on the ongoing criminal proceedings against persons unknown at present. Likewise the OAG will not provide any information on any other funds and/or assets that may be frozen. The presumption of innocence applies to all parties to the proceedings unless and until they are the subject of a legally binding conviction.
• This media release was published by the Swiss Office of the Attorney General (OAG) on 14 October 2020. Click here for the original.
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