A/HRC/36/52 45. After six years of proceedings, only a quite paltry sum ($250,000) has been repatriated.64 An early order to return to Tunisia $40 million whose criminal origin had been sufficiently established was, however, overturned on appeal by a court which found a violation of the accused’s right to be heard. 46. The repatriation of the funds will be possible once final and enforceable judgments confirming the illicit origin of the frozen assets have been issued or concluded in Tunisia. The Tunisian Government has to prove the acts of embezzlement and corruption committed by Ben Ali and his accomplices. But freezing orders have a limited duration, legal procedures are too slow and the crimes that are at the origin of the requests for repatriation are subject to statutes of limitation. C. Malaysia 47. The case involving Malaysia refers to the alleged misappropriation of $4 billion from a State-owned investment fund set up in 2009 to promote economic and social development projects. Dozens of interconnected people, companies and Governments have been identified as having a connection with the fund, which operates mainly from the Cayman Islands. Malaysia has rejected the Swiss offer of legal assistance, claiming that criminal investigations are being conducted by its own authorities. 65 48. In Switzerland, criminal investigations into bribery and money-laundering revealed that about $800 million were illicitly deviated through three Swiss banks (reportedly, BSI SA, Coutts & Co. Bank and Falcon Private Bank).66 FINMA has withdrawn the banking licences of all of them for flagrant violations of anti-money-laundering obligations and has confiscated the illicitly gained profits from Falcon (SwF 2.5 million) and Coutts & Co. (SwF 6.5 million). Only in the case of Coutts were criminal proceedings also opened for suspected deficiencies in the bank’s internal organization and FINMA is reportedly considering opening enforcement proceedings against the responsible employees. 67 VII. Negative impact of the non-repatriation of illicit financial flows on the enjoyment of human rights 49. The non-repatriation of illicit financial flows not only contributes to increasing the gap between developed and developing countries; it also hinders the socioeconomic development of the developing countries in particular, as well as their capacity to deliver basic social services to their citizens. As a consequence, citizens’ confidence in the Government and the rule of law is eroded, and corruption and poverty perpetuated. Non-return jeopardizes the enjoyment of economic, social and cultural rights 50. Illicit financial flows reduce the resources to be committed to social and economic investment and infrastructure, jeopardizing the State’s ability to fulfil economic, social and cultural rights to the maximum of its available resources. Diversion of funds through corruption particularly impacts on the socioeconomic rights of the population of the poorest States, which may encounter difficulties in fulfilling their minimum core obligations with respect to the most basic rights: the right to food, the right to an adequate standard of living, and the rights to health and education. 68 64 65 66 67 68 “Switzerland to return over USD 250,000 of Ben Ali’s money to Tunisia”, Africanews, 1 June 2015. In addition, Tunisia managed to recover $28.8 million held by Ben Ali’s wife in a Lebanese bank. See www.admin.ch/gov/en/start/documentation/media-releases.msg-id-60510.html. Ibid. FINMA, “FINMA sanctions Coutts for 1MDB breaches”, 2 February 2017; “Falcon sanctionné pour ses manquements en lien avec 1MDB”, 11 October 2016. See, for example, African Commission on Human and Peoples’ Rights, communications Nos. 25/89, 47/90, 56/91 and 100/93, Free Legal Assistance Group and others v. Zaire. 13