A/HRC/36/52 39. In 2000, investigations opened by the Swiss authorities resulted in a report incriminating 14 banks for lack of compliance with their due diligence duties under antimoney- laundering legislation. The authorities, however strikingly concluded that the existing regulatory framework was in principle sufficient and even extensive if compared internationally and that the Swiss financial centre had appropriate rules designed to avoid undesirable funds.58 40. In 2004, thanks to the action of the Geneva Public Prosecutor, Bernard Bertossa, the greater part of the frozen assets were repatriated to Nigeria. Switzerland responded favourably to Nigeria’s request for mutual legal cooperation. In addition, criminal investigations into money-laundering were opened pursuant to articles 305 ff of the Swiss Criminal Code. By considering that the structure set up by Abacha and his accomplices constituted a “criminal organization”, the Swiss courts confirmed that the illicit origin of the assets may be presumed under certain circumstances.59 41. In 2016, Nigeria tried to recover another $321 million that had been confiscated in Switzerland. However, after an extrajudicial agreement reached between the Government of Nigeria and the family of the former dictator, Switzerland agreed to return part of the funds to the Government while simultaneously dropping criminal proceedings against Abba Abacha, the son of the deceased dictator, who waived all further claims to the assets. 60 B. Tunisia 42. For more than 20 years, the former dictator of Tunisia diverted public funds and public properties for his own benefit. According the World Bank, more than 21 per cent of the profits generated by the Tunisian private sector were controlled by the dictator’s clan.61 Zine El Abidine Ben Ali and his accomplices used public institutions as tools to favour their private businesses and manipulated the law to serve their personal interests and punish those who opposed them. 43. In 2011, mutual legal assistance proceedings to clarify the origin of the $61,750,000 blocked in Switzerland were immediately undertaken. FINMA also announced sanctions and stated that the identity of the banks involved in the looted Tunisian public treasure would be made public. The list was never released, nor was information on any eventual sanction imposed on any of the banks suspected of accepting and hiding the money of the Ben Ali and Mubarak clans. In 2013, FINMA concluded that only in 4 of the 22 cases examined was it necessary to initiate a binding “administrative” procedure to secure information on the role played by the banks in “grave wrongdoings”.62 44. In March 2015, Tunisia filed a civil action against HSBC claiming SwF 114 million plus interest for having accepted the fortune of Ben Ali’s brother-in-law. The funds of illicit origin would have transited through HSBC accounts in the period when corruption was particularly notorious in Tunisia. Reportedly, the bank’s own compliance body had pointed out this fact to the managers.63 58 59 60 61 62 63 12 Commission fédérale des banques, “Fonds Abacha auprès des banques suisses”, 30 August 2000, p. 18. Swiss Federal Office of Justice, “Abacha funds to be handed over to Nigeria: majority of assets obviously of criminal origin”, 18 August 2004. “Nigéria : Genève clôt en catimini le dossier du dictateur Abacha”, Le Monde, 17 March 2015. B. Rijkers, C. Freund and A. Nucifora, All in the Family: State Capture in Tunisia, World Bank, Policy Research Paper No. 6810 (2014). FINMA, Obligations de diligence des banques suisses en relation avec les valeurs patrimoniales de «personnes politiquement exposées», 10 Novembre 2011, pp. 7-10 (subsequently updated). The bank charged management commissions of 2 per cent, amounting to a total of SwF 8.3 million. “La Tunisie réclame 114 million de francs à HSBC pour avoir accueilli l’argent du clan Ben Ali”, Le Temps, 19 March 2015.