When Switzerland allowed fugitive child predators into the country
A couple convicted of child sex abuse in India managed to flee to Switzerland while on bail. Two decades after their arrest, cross-border legal complexities could help them escape justice once again.
It‘s a week before the first Christmas of the new millennium, but Mumbai-based child welfare activist Sangeeta Punekar is not feeling the Christmas cheer. A few days earlier, a former street urchin-turned- taxi driver had approached her and told her that a foreign couple was roaming suspiciously around the city. He had seen objectionable material on their laptop.
“He asked us to do something about it. He also told us where they were staying as he had dropped them off at their hotel once,” Punekar told SWI swissinfo.ch.
She spent the next few days trailing them, and her worst suspicions were confirmed. The couple was luring street children to their fancy hotel in the suburbs. Punekar approached the commissioner of police with the information but says she was brushed off.
She finally managed to convince a junior police officer to intervene, provided she could catch the couple red-handed. Punekar got lucky. One day, she spotted the couple getting into a cab with a couple of young girls off the street. By taking the train, she reached the hotel before they arrived and waited in the lobby.
“When they entered the hotel, I saw that the two girls they had picked up on the street had received a complete makeover in the taxi. Their hair was nicely brushed, they wore new outfits and had plush toys in their hands. It looked like a very planned-out crime,” she says.
The two girls aged nine and 11, who sold flower garlands on the street, had been transformed to look like affluent city kids to avoid raising suspicion among hotel staff. As soon as they entered their room, Punekar called law enforcement. A little over an hour later, the police raided the hotel room.
Punekar says that they found the couple, with pornography playing on the television and cameras set up for filming.
Besides catching them in the act, the police found enough evidence to arrest the Swiss couple, according to Punkekar. The couple’s luggage only had four sets of their own clothes. The rest was children’s clothing, erotic wear and sex toys. Child pornography from previous trips to India, as well as Sri Lanka and the Philippines, was found on their laptop. In a desperate attempt, the man put a memory card in his mouth and chewed it with the aim of destroying evidence.
“Upon arrest he said that he had been coming here for 11 years and that every Indian is corrupt and he knows how to buy each one of us,” recalls Punekar. She believes that the Indian police hesitated in reacting because they felt “intimidated by a white man from a European country”.
Legal wrangling
At the time, India did not have a specific law to tackle child sex abuse. Only rape – irrespective of adult or child victim – was considered a crime. The couple (names withheld for privacy reasons) eventually stood trial in the Mumbai Sessions Court. The Swiss police also helped gather evidence.
“They met us in India at the time and showed us the material they obtained from the couple’s flat in Switzerland,” says Punekar.
The couple hired numerous lawyers and legal assistants but was sentenced to seven years in prison by the court in March 2003. It was a huge victory for child rights in India as only two other foreigners had been convicted for child sexual abuse before, in the seaside resort of Goa. The case was an eye-opener for many people in India, especially the police and the judiciary, says Punekar.
“Until then judges and senior police officers, who were generally the same age as the couple, believed that such old men and women were incapable of doing such deeds.”
However, prosecutors’ victory was short-lived. The couple appealed to the Mumbai High Court and a year later they were released on the grounds of their advanced age after paying INR100,000 (around CHF3,000 at the time) to each of the two victims. They had only served half of their seven-year sentence.
Punekar and other child rights activists protested the decision and the state’s attorney general filed a petition to India’s Supreme Court asking for the judgement to be overturned. The apex court granted the couple bail but dismissed their petition to leave the country. Their passports, which had been confiscated after their arrest, were not returned to them.
Within a few days of being denied permission to leave the country, the couple fled India.
Back to Switzerland
“We knew they were going to flee the country. More than escaping their sentence, it hurt that they were outsmarting people here,” says Punekar, who believes that they were let out on bail because “Indian officials don’t want foreign nationals to die in prison as it brings international attention”.
According to her, the man had told her at the time of arrest that he was in possession of multiple passports and knew how to flee. Punekar believes the couple escaped to Nepal via the country’s border with India.
But it remains unclear how they managed to travel back to Switzerland and enter the country. The Swiss Federal Archives contain nine classified documents mentioning the couple. These include six files involving the Mumbai consulate, one linked to the embassy in New Delhi and two concerning the Swiss foreign ministry.
A SWI swissinfo.ch request for access to these classified documents was denied by the foreign ministry and the decision is being appealed. In Switzerland, sensitive documents are classified for a period of either 30 or 50 years and the government reserves the right to deny requests for access to them.
The two fugitives are still listed on the Interpol Red Notice which is not an international arrest warrant but a “request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action”, according to Interpol.
India has an extradition treaty with Switzerland, but it does not apply to Swiss nationals. However, Switzerland does offer the possibility to transfer people who have been sentenced in other countries. Certain conditions must be met first, among them that “the judgment must be final and enforceable”. In this case the couple was still awaiting the judgement of India’s Supreme Court so it is likely that this condition of enforceability was not fulfilled in the eyes of the Swiss authorities. The available information in two of the nine classified documents in the Swiss Federal Archives mentions “extradition and prosecution”.
Swiss trial
Legal documents also show that the couple’s crimes continued after their return to Switzerland. The man, now 79 years old, was the subject of a court hearing in the northern Swiss city of Frauenfeld for multiple counts of sexual acts with children and child pornography, committed in Switzerland.
“It is heartening to know there is a fresh case against him but it is sad to know he hasn’t changed his ways,” says Punekar.
Article five of the Swiss Criminal Code recognises offences committed against minors abroad. However, it is up to a Swiss court to decide “whether a measure ordered abroad but only partly executed there must be continued or taken into account in the sentence imposed in Switzerland”.
At the hearing in August, the Frauenfeld court rejected the case against the 79-year-old man because of a lack of clarity on the status of the criminal case against him and his wife in India. The court asked the prosecution – which recommended a 12-month prison sentence and a fine of CHF2,000 (almost $2,200) for the man – to ask the Indian authorities for legal assistance.
“The criminal investigation is pending again and further clarifications are being made. Once these investigations have been completed, a new charge is planned,” says Marco Breu, a representative of the Frauenfeld public prosecutor’s office.
For now, the couple are free citizens. The prosecution could not give an estimate of when new charges will be filed. A lot depends on cooperation from the Indian authorities. Given the advanced age and poor health of the man accused, it is possible that he may eventually escape justice.
Travelling sex offenders
There are no accurate statistics of the number of people who travel abroad to have sex with children. The Parliamentary Assembly of the Council of Europe (PACE) estimates that the number could be around 250,000 every year. However, this does not take into account expats who have relocated to a foreign country or opportunistic encounters that are believed to account for the majority of cases.
An indirect but poor measure of criminal activity are the Interpol’s Green Notices which are voluntary warnings issued by countries about criminals who are likely to reoffend. Between 2011 and 2015, a total of 1,928 Green Notices on travelling child sex offenders were issued with the vast majority (almost 95%) in the Americas.
According to the Global Study on the Sexual-Exploitation of Children in Travel and Tourism, there is also no typical profile of a transnational sex offender. Nevertheless, the perpetrators are often male (92.7% according to ECPAT – Ending Child Prostitution and Trafficking and Interpol 2018). Abusers are not just tourists, but also business travellers, migrant workers, voluntourists, expats, volunteers and domestic travellers.
The stereotype of the white, Western, middle-aged male pedophile exists but other kinds of abusers have emerged. For example, virginity-seeking Chinese, Japanese and Korean men heading to Southeast Asia or young professional travellers abusing underage prostitutes in Brazil or even female sex tourists heading to Sri Lanka looking exploit “beach boys”.
Sex travellers and Switzerland
Switzerland has participated in global initiatives to halt child sex tourism. It was one of the main funders of The Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism, also known as “The Code”. In 2009, along with Austria and Germany, it launched the “Don’t look away” campaign that raised awareness of child sex tourism and created an online platform for reporting suspicious cases worldwide.
However, there are no official statistics on the number of Swiss committing sex crimes on children abroad. The Swiss Federal Police (Fedpol) has an online reporting form that allows anyone to report a case of suspected child sex tourism. According to a Fedpol representative, a total of 47 reports have been made since 2015. However, Fedpol warned that this is not representative of the actual number of cases worldwide.
A 2006 UNICEF report looking into child sex tourism on the Kenyan coast concluded that around 12% of Swiss visitors to the coastal towns of Malindi, Mombasa, Kilifi and Diani are involved in sexually exploiting underage girls in hotels and villas. This puts the country in the third spot after Italians (18%) and Germans (14%).
Several cases of sexual exploitation of children committed abroad by Swiss nationals have been recorded in the media in recent years, including a 66-year-old Swiss man arrested in Nepal in 2018 for sexually exploiting a 16-year-old boy in a hotel and an 81-year-old multiple offender who was sentenced to five years’ imprisonment in Cambodia in 2012 for similar crimes.
But there has only been one case of a Swiss person being convicted in Switzerland for sexually abusing minors abroad. The man was convicted twice in Switzerland for child abuse but managed to escape to Thailand. The Swiss police caught him there and brought him back to the country to serve his prison sentence. After his release, he left again for Thailand where he groomed young boys for sex and to produce pornographic content. In 2018, the man – then in his seventies – was handed a 16-year prison sentence by the Gruyère Criminal Court for sexually abusing 80 boys in Thailand over a period spanning a decade.
“People with such intentions benefit from the differences between the law enforcement systems in the country concerned and those in their home country,” says Tamara Parham of the Swiss child protection agency.
She fears that child sex criminals will soon also benefit from legal differences within Switzerland. As of 2021, the federal government will hand over responsibility for covert investigations into child pornography to the country’s 26 cantons.
“This is despite the fact that the cantons are devoting no – or too few – resources to this problem,” she says. “ Because the laws differ from canton to canton, cantonal borders also act as barriers for the police and law enforcement agencies.”
Her organisation is lobbying for the creation of a national strategy to combat child pornography.
For her part, Indian child rights activist Punekar hopes that the couple she has been trying to bring to justice all these years do not escape again, and that the case brings attention to the issue of sex abuse against children abroad, and the legal loopholes that exist.
“More than the sentence it is important that Switzerland recognises that such offences are happening and these people need to be convicted.”
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