Switzerland's attorney general Michael Lauber speaks during a press conference on May 10, 2019 in Bern, following a hearing into a reportedly undisclosed meeting between the country's top prosecutor and FIFA president. - Switzerland's attorney general Michael Lauber has faced criticism over informal contacts with Gianni Infantino while his office was investigating decades of graft within world football. (Photo by STEFAN WERMUTH / AFP) (Photo credit should read STEFAN WERMUTH/AFP/Getty Images)
Michael Lauber failed to take notes of meetings in 'unusual ' breach of protocol © AFP

Switzerland’s Federal Prosecutor, Michael Lauber, has been ordered to recuse himself from an investigation into corruption at Fifa, a setback which threatens to derail the high-profile probe into the governing body of world football. 

Switzerland’s Federal Criminal Court on Tuesday issued a judgment forcing Mr Lauber and two other prosecutors to step down over what it called “unusual” breaches of protocol. 

Documents leaked by the website Football Leaks late last year revealed Mr Lauber to have held two private meetings with Fifa chief Gianni Infantino in the spring of 2016, brokered by an old school friend of Mr Infantino. A third meeting was later revealed by Swiss media to have taken place in Bern in 2017. 

According to Swiss law, prosecutors must take scrupulous notes of any meetings or discussions they hold with the subjects of their investigations. Mr Lauber did not record any detail of his off-diary meetings with Mr Infantino. 

“It remains unclear why . . . these meetings were necessary for the orderly conduct of proceedings” the Federal Court, based in Bellinzona in southern Switzerland, said in its judgment. Regular discussions to co-ordinate technical and organisational aspects of the case, it noted, had already taken place through official channels. 

“The content of these controversial discussions [was] beyond the control of other parties to the proceedings,” the court ruled, calling Mr Lauber’s probity into question and raising the possibility that the secret discussions may have unfairly favoured Fifa.

“Such an approach cannot be reconciled with the obligation to treat all those involved equally and fairly” as other parties in the case would not have known of the meetings without the media’s reporting, the court said.

Mr Lauber admitted the first two meetings with Mr Infantino took place, but initially denied having any memory of the third. He later conceded it had occurred, but said he had no recollection of what was discussed. The three other participants at the meeting, including Mr Infantino, have continued to deny any recollection of it. 

“Frankly, normally you might have meetings like this in your offices, not in a pub or a luxury hotel. He isn’t an undercover agent. He has made a lot of very strange professional mistakes,” said Mark Pieth, professor of criminal law at the University of Basel and chairman of the OECD working group on bribery, adding: “this stinks.”

In a statement on Wednesday afternoon, a spokesperson for the Federal Prosecutor’s office said that “appropriate measures” were now being taken as a first step to dealing with the consequences of the court’s decision in Bellinzona.

A new prosecutor will be appointed to oversee the case, they said. The work investigating Fifa was a collaborative effort overseen by a task force of experts, they added. “It is clear that the recusal does not call into question the entire work of the [case]. Most of the pending criminal proceedings will continue according to plan.”

Mr Lauber has previously defended his actions. In a press conference last month - after supervisory authorities opened an investigation into his office’s conduct - Mr Lauber castigated critics for spreading “conspiracy theories”. 

“It is not only a full frontal assault on me personally . . . in my opinion, it’s also an infringement of the independence of the Office of the attorney-general,” Mr Lauber told reporters. 

He is facing a battle to have his position reconfirmed by Swiss parliamentarians in September. An initial vote, which had been expected to deliver him another term in office, was postponed from June as the scandal surrounding the Fifa case deepened. 

Mr Lauber is one of Switzerland’s most high-profile and longstanding federal prosecutors. He has overseen sweeping reforms of the prosecutor’s office, and has been responsible for bringing dozens of high profile cases. 

Critics say less attention has been paid to legal procedure, however, with many of the headline-grabbing actions Mr Lauber’s office has taken yet to actually come to trial. 

In 2015, Mr Lauber stood alongside US prosecutors in announcing a sensational probe into the activities of Fifa. His officials seized over 9 terabytes of data from Fifa’s offices, and have launched more than 100 interlinked investigations into the body.

Bribery allegations in connection with Fifa’s controversial decision in 2010 to select Qatar as host of the 2022 World Cup triggered investigations in the US, Switzerland and France. The probes have led to the arrest and imprisonment of dozens of former executives at international football’s governing body.

Swiss federal prosecutors have focused their inquiries on some of Fifa’s top officials, such as Jerome Valcke, the organisation’s former secretary-general. They are currently investigating an allegation that he was bribed by Nasser al-Khelaifi, a Qatari television executive and president of Paris Saint-Germain football club. Mr Valcke and Mr al-Khelaifi have always denied wrongdoing.

Fifa did not immediately respond to a request for comment on Mr Lauber’s recusal.

Time on the clock for prosecutors in Switzerland to successfully bring their cases to court against Fifa is now running short. Under Swiss law, wrongdoings must be prosecuted within a fixed timeframe.

The court’s decision against Mr Lauber also now threatens to jeopardise other high-profile prosecutions. “Fifa gets everyone excited, but Lauber has been doing the same kind of thing in all his other cases,” said Mr Pieth, citing investigations against Malaysia’s 1MDB and Brazil’s Petrobras as big examples. “With all of this mess, the Swiss are discrediting themselves.”

Additional reporting by Murad Ahmed in London

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