ISLAMABAD, Aug 8: The following is the concluding part of text of the judgment of Swiss investigating magistrate, Mr Daniel Devaud, in the SGS, Cotecna case against Ms Benazir Bhutto:

• 14 April 1997 USD 139,062.80 for the period of the fourth quarter 1996 for payments received by SGS (cf. pp. 1699-1700);

• 19 August 1997 USD 190,063.30 for the period of the first quarter 1997 (cf.p. 1697);

• 25 August 1997 USSD 319,381.83 for the period of the first quarter 1997 for payments received by SGS (cf. pp. 1695-1696);

That finally Mr Schlegelmilch again billed to Cotecna his own remuneration of 1.25% provided by the contract of 29 June 1994, viz the following payments which he received on his SBS account:

• USD 22,444.50 on 22 May 1995 (cf. pp. 1692-1693);

• USD 93,105.40 on 2 and 4 August 1995 (cf. pp. 1689-1690);

• USD 118,862.15 on 22 may 1995 (cf. pp. 1686-1687);

• USD 99,605.90 on 29 January 1996 (cf. pp. 1683-1684);

• USD 104,221.11. on 12 April 1996 (cf. pp. 1680-1681);

• USD 119,264.01 on 6 August May 1996 (cf. pp. 1677-1678):

• USD 127,310.61 on 26 November 1996 (cf. pp. 1673-1674);

• USD 48,198.56 on 15 April 1997 (cf. pp. 1670-1671);

• USD 79,193.05 on 19 August 1997 (cf. pp. 1667-1668);.

That thus, from the commencement of the contract, the commissions provided by the agreements of 11 March and 29 June 1994 were regularly paid on the following accounts between May 1995 and September 1997 (cf. pp. 1080 to 1109) for a total of:

• BOMER FINANCES INC. USD 8,190.085.00 (eight million one hundred ninety thousand eighty five dollars);

• NASSAM OVERSEAS INC. USD 3,807,338.00 (three million eight hundred seven thousand three hundred thirty eight dollars);

• Mr Jens Schlegelmilch USD 1,538,014.00 (one million five hundred thirty eight thousand and fourteen dollars);

That in effect at the time of the first payment of commissions by SGS, on 24 may 1995, MARISTON SECURITIES INC., which was initially going to be used to receive 6% of the billed amounts, was replaced by the company BOMER FINANCE INC., a company incorporated in the Virgin Islands whose beneficial owners are Mr Asif Ali Zardari and Benazir Bhutto (cf. p. 1662).

That by decision of the shareholders of BOMER on 25 June 1991, Mr Jens Schlegelmilch is the sole Director/Chairman;

That Mr Jens Schlegelmilch had received from Mr Asif Ali Zardari a management mandate for the company BOMER;

That Mr Jens Schlegelmilch acknowledged having started to hold the accounting for account n° 552.343 of the company BOMER at UBS Geneva;

That such accounting mentioned: 50% AAZ - 50% BB;

That when interrogated regarding that accounting sheet, Mr Jens Schlegelmilch indicated that he had received instruction from Asif Ali Zardari according to which in case of death, the sum should be divided between his family and the family of his wife;

That the instruction had moreover shown that Benazir Bhutto had a true discretionnary power on the disposition of the BOMER account;

That thus, in August 1997, when her husband Asif Ali Zardari was in prison in Pakistan, Benazir Bhutto acquired an item of jewelry in London for the price of GBP 117,000.00;

The item of jewelry was paid for partly in cash and, for the balance, by a bank payment from the account of BOMER;

That in September 1997, following the discovery of these practices, Hans Fischer was laid off by SGS;

That by judgment of 15 April 1999, the High Court of Lahore (Pakistan) condemned Benazir Bhutto and Asif Ali Zardari to 5 years of imprisonment and USD 8.6 million of fines.

That on 6 April 2001, said judgment was annulled by the Supreme Court of Pakistan which sent the case back to the first judges for a new decision (cf. pp. 949 to 1002).

CONSIDERING IN LAW:

That by taking useful means to enrich herself or enrich her husband by way of a contract concluded for the accound of the State of which she assumed the supreme direction, Benazir Bhutto was guilty, at least, of acts relating to the unfair management of the public interests which she had the mission of defending;

That nothing effectively permits the conclusion that SGS and Cotecna, for themselves, Hans Fischer and Robert MASSEY, had consented to a sacrifice of more than USD 5 million for the sole purpose of making a donation, without compensation, to the couple Bhutto-Zardari. These payments were without a doubt made in order to obtain the desired contract, in such a manner that SGS and Cotecna therein found their benefit. If Benazir Bhutto had acted fairly, it would not be herself or her husband, but rather the State of Pakistan, which should have benefited, by example in the form of a discount on amounts billed by SGS and Cotecna, from the financial sacrifice that SGS and Cotecna were prepared to make;

That it is moreover not doubtful that the behavior of Benazir Bhutto and her husband is criminally reprehensible in Pakistan, as evidenced by the criminal procedures undertaken in this regard and to which the recent decision by the Supreme Court does not put an end;

That the above finding dispenses the judge to examine whether the behavior of Benazir Bhutto meets the constitutive elements of a crime of passive corruption, within the meaning of article 315a CP and the corresponding provisions of the Pakistani penal code, it being nevertheless remembered that Pakistan has always contended that the contracts concluded by Benazir Bhutto acting for Pakistan with SGS and Cotecna on 29 September 1994 were in violation, by Benazir Bhutto, of the duties of her office;

That until 1 May 2000, the active corruption of foreign public agents was not subject to prosecution in Switzerland, so that Jens Schlegelmilch cannot be reproached in Geneva for actions relating to such a corruption;

That he cannot either be blamed in Switzerland for the participation in unfair management of the Pakistani public interest or participation in the passive corruption of Benazir Bhutto (ATF 104 IV 239);

That on the other hand, since the unfair management of public interests is a crime and that it does not matter whether this crime was committed abroad (art. 305bis, al. 3 CP), Mr Asif ali Zardari may be reproached in Switzerland for having.12 committed acts of laundering money arising from the criminal activities of Benazir Bhutto;

That by virtue of the principle of abstract double incrimination, which prevails in doctrine and in jurisprudence, the acts which, in Switzerland, were carried out in order to obstruct the identification of the origin, the discovery or the confiscation of assets of criminal origin are indeed punishable, even if the principal infraction did not occur in Switzerland (ACKERMANN, Einziehung, organisiertes Verbrechen und Geldwäscherei, vol. I, pp. 453 ss, n. 175 ss and citations);

That under Swiss law, the author of the principal crime may also be prosecuted for money laundering if he carries out actions proscribed by article 305bis CP (ATF 120 IV 329; 122 IV 211; 124 IV 276 = SJ 1999 p. 193);

That a fortiori he who, without being the so-called author of the principal crime, however contributes to its commission, must be prosecuted if, moreover, he participated in the putting into place of a structure having as its purpose that certain assets be paid according to modalities clearly destined to camouflage their real destination;

For this is clearly the case in the present matter: Mrs Benazir Bhutto not only carried out actions so that the agreement between BOMER FINANCE INC. be kept secret, but she also participated in the putting in place of companies which she knew would serve as a screen to camouflage the real recipients of funds which she would cause to be paid by SGS and Cotecna;

That use of “screen” companies is typical of acts punishable under article 305bis CP (ATF 119 IV 245; 124 IV 276 = SJ 1999 p. 193; CASSANI, Commentaire du droit penal suisse, vol. 9, pp. 72 ss, n. 31 ss; CORBOZ, Les principales infractions, vol. II, p. 312, n. 25);

The behavior covered by article 305 bis CP is only punishable if the author knew or should have known that the estate assets which he helped to conceal came from a crime;

That this subjective element is also met in the present case, notwithstanding the silence of Mrs Benazir Bhutto. Since:

• It is not necessary that the author knew -or should have known- with precision from which precise principal infraction came the assets in question, nor that he knew the author of this infraction: it suffices that the author had envisaged or accepted that these assets came from a behavior capable of a large sanction, or that they served as remuneration of such behavior (CASSANI, op. Cit., p. 8, n. 51);

• Mrs Benazir Bhutto knew that the “bribes” paid by SGS and Cotecna were destined for her and her husband;

• The precautions taken by Mr Asif Ali Zardari in concert with Mr Jens Schlegelmilch in order to keep the concluded agreement secret clearly demonstrate that he was aware of its illicit character;

That in summary, Mrs Benazir Bhutto thus knew that she was acting in a criminally reprehensible manner by abusing her role in order to obtain for herself or her husband, considerable sums in the sole private interest of her family at the cost of the Islamic Republic of Pakistan;

That, in order to fix a penalty, the Investigating Magistrate has applied the criteria of article 63 CPS;

That the accused fulfills the objective and subjective conditions for the granting of a measure of probation, the Judge of Investigation esteeming that such a measure would be of such a nature to deter her from committing new infractions;

That the laundered assets may be confiscated provided that they are still in the possession of the launderer. If not, the confiscation may only bear on the consideration obtained by the author in remuneration for the committed infractions. If the assets which served as this remuneration are no longer available, notably because they have been mixed with the estate of the author, the confiscation may be replaced by the payment of a compensatory claim (art. 59. ch.1 and 2 CP; ATF O. of 19.2.2001 cons. 3c, n° 6S.667/2001; ATF 126 I 197 cons. 3c. bb; 122 IV 365= SJ 1999 I 419-420; CASSANI, “Le blanchiment d’ argent, un crime sans victime ?”; in Wirtschaft und Strafrecht, Zürich 2001, p. 498-499);

That the file has established that Mrs Benazir Bhutto and her husband Asif Ali Zardari were paid by SGS and Cotecna in connection with the inspection contracts (preshipment inspection of goods) as a result of their unfair management of the public interests of the Islamic Republic of Pakistan, and laundered in concert with Mr Jens Schlegelmilch and her husband in Swiss banks:

• USD 8,190,085.00 on the account of BOMER FINANCE INC. at UBS Geneva;

• USD 3,807,338.00 on the account of NASSAM OVERSEAS INC. at BARCLAYS Geneva;

being in total USD 11,997,423.00 (eleven million nine hundred ninety seven four hundred twenty three dollars);

That Mrs Benazir Bhutto will be condemned to reimburse jointly with her husband Mr Asif Ali Zardari the proceed of the unfair management of the public interests of the Republic of Pakistan laundered in Switzerland, being USD 11,997,423.00 (eleven million nine hundred ninety seven four hundred twenty three dollars);

That has first to be ordered the confiscation of the assets on the following accounts:

• USD 2,484,000.00 on the account of BOMER FINANCE INC. at UBS Geneva;

• USD 3,748,373.00 on the account of NASSAM OVERSEAS INC at Barclays Geneva;

That there is also reason to order the confiscation of amounts which were transferred from BOMER FINANCE INC. to the account of HOSPITAL MIDDLE EAST INC. at UBS Geneva, being USD 5,502.292.00.;

That these confiscated amounts represent a sum of USD 11,734,665.00.

That the amounts frozen do not fully cover the sum to be reimbursed; therefore, Mrs. Benazir Bhutto shall be condemned, jointly with Mr Asif Ali Zardari, to the payment of the balance by way of a compensatory claim in the amount of USD 262,758.00, i.e. in Swiss francs, at the exchange rate 1.324, CHF 347,892.00.

That the Islamic Republic of Pakistan having been recognized the quality as civil plaintiff and being the victim of the actions of Mr Jens Schlegelmilch, it is right to order the restitution of the confiscated amounts and compensatory claim to the Islamic Republic of Pakistan;

That, for the remainder, Mrs Benazir Bhutto shall be condemned to a participation of one third of the costs of the procedure which amount to CHF 23,000.00, the fee being fixed at Fr. 500.00.

FOR THESE REASONS

Given in law articles 36, 41.1, 48, 50.2, 63, 68, 69, 305bis CPS; articles 218 and following CPPG;

THE INVESTIGATING MAGISTRATE

Finds Mrs Benazir Bhutto, born in 1953, guilty of participation in money laundering, infraction under article 305bis paragraph 1 CP;

Sentences her to 180 days of imprisonment.

Grants her the benefit of probation with a period of testing of three years.

Orders the confiscation of the goods on the following accounts:

• USD 2,484,000.00 on the account of BOMER FINANCE INC. with UBS Geneva;

• USD 3,748,373.00 on the account of NASSAM OVERSEAS INC with Barclays Geneva;

• USD 5,502,292.00 on the account of HOSPITAL MIDDLE EAST INC. with UBS Geneva;

And orders the restitution thereof to the Islamic Republic of Pakistan;.

Sentences Mrs. Benazir Bhutto, jointly with Mr Asif Ali Zardari, to the payment to the Islamic Republic of Pakistan of CHF 347,892.00 as a compensatory claim;

Orders the forfeiture of the necklace acquired by Mrs. Benazir Bhutto in London and seized in Geneva;

Orders the restitution of the necklace to the Islamic Republic of Pakistan.

Also condemns her to a participation in one third of the CHF 23,000.00 costs of the procedure, i.e. to CHF 8,166.00, including a fee of CHF 500.00.

Notifies the present sentencing order:

• to the condemned Mr Mrs Benazir Bhutto, being for her at his counsel Dominique PONCET, Esq., P.O. Box 5715, 1211 Geneva 11

• to the Islamic Republic of Pakistan, being for it at its counsel Jacques PYTHON, Esq., rue Massot 9, 1206 Geneva

• to UBS SA, P.O. Box 2600, 1211 Geneva 2

• to Barclays Bank (Suisse) SA, legal department, P.O. Box 3941, 1211 Geneva 3

The clerk

Patricia CHRISTEN The Investigating Magistrate

Daniel DEVAUD.

OPPOSITION

This sentencing order is susceptible to OPPOSITION by the parties within a period of FOURTEEN DAYS from its notification by simple written declaration without cause addressed to the Greffe du Tribunal de Police, P.O. Box 3715, 1211 GENEVE 3.

The opposition of a civil party may only be in regard to a civil judgment. The General Attorney, in lieu of opposition, may request during the same period of fourteen days, the transmission of the file to the competent jurisdiction for reasons of prosecution.

In the absence of opposition, the ordinance of condemnation becomes FINAL and ENFORCEABLE (art. 218 C and 370 CPP).

The period for opposition and the opposition stay the procedure until a decision is rendered on the opposition, unless the law provides otherwise (art. 369, paragraph 2 CPP).

For persons already imprisoned without warrant, the ordinance condemns them to a firm sentence taking place of the warrant and is effective as long as the condemnation has not become definitive and executory, under reserve of a provisional liberation in conformity with the provisions of articles 151 to 163 8art. 369, paragraph 3 CPP).

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STATE OF COSTS

(according to the list of procedural costs)

Emolument CHF 500.00

Expenses CHF 7,666.00

Emoluments and

costs of the

non-judicial

administration CHF

TOTAL

Found the present

state of costs

at CHF 8,166.00

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OPPOSITION TO TAX

(art. 6 of regulation on tariffs of costs and expenses in criminal matters)

The parties, or if it is condemned, the plaintiff, may oppose the taxation by the state of costs of the State or the taxation of costs of a party within a period of THIRTY DAYS from the notification of the decision of condemnation of costs or expenses.

Opposition is made by written request addressed to the criminal section of the Cour de Justice, which rules in last resort.

N.B.: The service of contraventions shall send you a payment slip when this ordinance of condemnation becomes definitive and executory.

Concluded