Defendants have argued they will be prejudiced if they are heard by Portuguese courts
The Lisbon Court of Appeal has rejected the appeal by the Swiss defendants in the BES case – Etienne Cadosh, Michel Creton and Eurofin – to have the criminal proceedings against them separated and sent to the Swiss courts.
According to a recent ruling of the court, to which Lusa news agency has had access, the judges of the 9th Criminal Section decided to reject the appeal, upholding the previous decision of the Central Court of Criminal Investigation to refuse to delegate jurisdiction in the criminal proceedings against the two individual defendants and the company Eurofin Investments – a Swiss commercial company.
At issue was an order issued by the Central Court of Criminal Investigation, which on 15 February 2022 refused the defendants’ request to send the case against them to Switzerland.
All three defendants argued that requirements for the case to be delegated to the Swiss judicial authorities were met, and also that the Central Court of Criminal Investigation’s order violated Portuguese law and the Portuguese Constitution, and that the Central Court of Criminal Investigation’s decision should therefore be withdrawn.
According to the appellants, the delegation of the case to the Swiss authorities “is justified, both by the good and effective administration of justice and by the fact that it is in Switzerland that the defendants may serve any sentences arising from these proceedings so that only the Swiss authorities are in a position to assess the context of re-socialisation sought by the sentences”.
The appeal also argued, among other points, that the defendants have Swiss nationality, “reside and have always resided in Switzerland, are French-speaking, do not speak, understand (the defendant Michel Creton) or have no command (the defendant Alexandre Cadosh) of the Portuguese language”, for which they would be “prejudiced in their defence”, in addition to which the acts to be carried out would be “subject to successive and inevitable delays, with prejudice to the other defendants and the administration of justice”.
The applicants also said that the BES case has been going on for eight years and is “a long investigation into the possible commission by the Espírito Santo Group (GES), through financial entities not subject to supervision by the Bank of Portugal, of economic and financial offences committed in an organised manner and with an international or transnational dimension.
“The case has 25 defendants, and its subject matter is facts that indicate the commission of a total of 346 crimes, so it is clearly a case that will take many years to conclude.
“Moreover, considering the path the case has taken until the indictment was handed down, it is not expected that the case will gather any more speed in the pre-trial and trial phases”, Etienne Cadosh, Michel Creton, and Eurofin’s appeal also said.
The defendants emphasised that “it took more than eight months” to receive notification of the indictment, duly translated into their mother tongue.
The Public Prosecutor’s Office opposed the appeal, contesting the grounds and stressing that the Swiss defendants, as procedural interveners in the case, “it is also up to them to ensure the desired speed” of the Portuguese justice system.
It also said that, as regards the right to a decision within a reasonable time and through a fair process, as claimed by the Swiss defendants, this “assists in equal measure and proportion to the defendants resident in national territory”.
The assistant in the case of Banco Espírito Santo SA (in liquidation) also opposed the Swiss defendants’ claim, pointing out, for example, that although the Swiss defendants argue on the issue of language, the fact that they requested the opening of the investigation “means not only that they have understood what they are accused of, but also that they have exercised their defence”.
In the decision handed down now, the Lisbon Court of Appeal emphasises that the process is “in the instructional phase (…) with a view to submitting the defendants to trial or not”, whereby the transfer to Switzerland “would frustrate the success” of diligences and “would make the production of evidence unviable in the trial phase (…) with the serious risk of duplicating the production of evidence”.
In this way, the Lisbon Court of Appeal understood, in line with other decisions already handed down, that there is a clear interest in jointly assessing the responsibility of the different suspects and defendants in order to ascertain the degree of participation of each one, minimizing “the risk that, by separating the criminal proceedings, each one of those persons or all of them may reduce or even hide their participation and legal and criminal responsibility in the event in question, frustrating or jeopardizing the Portuguese State’s claim to punishment”.
In conclusion, the Lisbon Court of Appeal fully upheld the Central Court of Criminal Investigation’s order and maintained the Swiss defendants’ appealed decision.
The BES/GES case, considered one of the biggest cases in the history of Portuguese justice, brings together in the main case more than 240 investigations, which have been joined, and complaints from more than 300 people, individuals and companies living in Portugal and abroad.
According to the Public Prosecutor’s Office, whose indictment ran to around 4,000 pages, the collapse of the Espírito Santo Group (GES) in 2014 caused losses of more than €11.8 billion.
But for all these words, justice is still taking its time, with almost nine years now having passed with no trial date in sight.