How to manipulate the outcome of a court trial related to Swiss Bank Secrecy which is applied to data of a trust company domiciled in the Cayman Islands
how to protect the dark side of
THE FINE ART OF SWISS PRIVATE BANKING
(visit also for more information
"Tax Justice Networks Blog" Summary Causa Elmer)
Key questions which should have been answered by the Swiss prosecutors
Alexandra Bergman and Dr. Peter C. Giger
when the investigation was opened on September 27th, 2005
1) Can Swiss banking secrecy law (Art. 47 of Swiss Banking Law) be applied to data sourced from a
Cayman Trust Company (Julius Baer Trust Company Ltd., Cayman Islands) which is obviously not a bank under Cayman law? (The famous law firm "Baer & Karrer" owned by Dr. Thomas
Baer writes about Rudolf Elmer, page 4 here the link "Swiss Secrecy, Whistleblowing and Elmer")
Answer: NO (evidence) Swiss Bank Law Article 47, says Rudolf Elmer must have been an employee of a Swiss Bank in order to apply the law against
2) Was Rudolf Elmer employed by Bank Julius Baer & Co. AG, Zürich (Switzerland) during the period from September 1st, 1994 to March 10th, 2003 when he worked in the Cayman Islands?
Answer: NO (evidence 1) (evidence 2)
2.1. For whatever reason if yes, does Art. 47 Swiss Banking Law apply in the case of Rudolf Elmer?
Answer: highly questionable due to extra-territorial application (evidence
1, evidence 2)
2.2. if no, does Art 47 Swiss Banking Law apply in the case of Rudolf Elmer?
Answer: NO (evidence 1, evidence 2, evidence 3, evidence 4)
3) Can someone be investigated in two countries for the same crime and can the same information be used against Rudolf Elmer to prosecute him a second time?
Answer: NO (evidence)
Conclusion: the investigation should not have been opened in the first place in 2005, which strangely enough the investigating Prosecutor Alexandra Bergmann already stated in 2006 (evidence) due to the fact that Julius Baer & Co. AG, Zürich has not suffered any damage and therefore is not in a position to file a claim. What the prosecutor did not say is that the complaint should have been filed by Julius Baer Trust Company Ltd,, Cayman Islands (a trust company, not a bank where the data comes from) and the entire case should have been handled in the Cayman Islands under Cayman Law.
The methodology of the manipulation by Zurich's Courts
(respectively how to ignore the material truth and protect
the dark side of Swiss Private Banking)
These are the ways in which the judicial system of Zurich has manipulated the case as of today:
-by ignoring arguments made by the defending lawyer in 2005: Swiss banking
secrecy law cannot be applied to the case of a trust company operating in the Cayman Islands and, secondly, Rudolf Elmer was not employed by a Swiss bank (evidence 1, evidence 2) neff,
- by blocking all the witness requests of the defending lawyer (evidence),
- by extending the period of limitation (violation of Swiss Bank Secrecy 7
years according to law : WikiLeaks published data Jan 9th, 2008 and the WikiLeaks verdict was made Jan 12th, 2015, evidence 1) the documentary "A Leak in Paradise",
- by ignoring the actual employment contracts of Rudolf Elmer (evidence),
- by treating an insurance agreement as an employment contract (evidence),
- by lack of the command of the English language (evidence: expatriate agreement the meaning of the word: "exclusively"),
- by consistently not questioning Bank Julius Bär & Co. AG, Zürich about employment contracts of Rudolf Elmer, dubious clients, abusive practice etc.(evidence)
- by ignoring the fact that also the Prosecution Office concluded already in 2009 that Rudolf Elmer was NOT employed by Julius Bär & Co. AG, Zürich (evidence)
- by ignoring all the evidence provided by the defending party in the court that Rudolf Elmer was not an employee of a Swiss Bank (evidence)
- by ignoring the fact at the Appeal Court (Higher Court of Zurich) that Rudolf Elmer was not an employee of a Swiss Bank and even worse by stating Rudolf Elmer was an employee of Bank Julius Bär & Co. AG, Zürich. The judges of the High Court also deliberately ignored the "Assignment as Chief Operating Officer" (evidence)
- by not investigating criminal clients of the bank (evidence the doc
film "A Leak in Paradise") The Guardian articles "Isle of Plenty" and
"Rare glimpse of
..." as well as The Federal Prosecution Office (reason: no connection to Switzerland) ,
Prosecution Office of Zurich and the Tax Commission II of the State of Zurich)
- by not returning the case by the judges of the High Court due to lack of evidence to the Lower Court. Instead the judges of the Higher Court act as prosecutors instructing Prosecution Office what needs to be investigated again. The hidden reason is that returning to the Lower Court – which is general practice - would have meant that the frozen period of limitation would have been unfrozen and all charges would have expired instantly, which is what the judges of the Higher Court were seeking to avoid (evidence).
- by reinvestigating the case due to lack of evidence the judges of the Higher Court reopened the investigation under their supervision (another 20 binders of documents with so-called evidence were filed and several international assistance requests were performed) under the guidance of the judges of the Higher Court (evidence),
- by ignoring Article 2 of the Swiss Civil Right Law which says: “The manifest
abuse of a right is not protected by law” in other words sham trusts, abusive structures etc. (evidence) do not have any protection under Swiss Law.
- by ignoring Article 102 of the Swiss Criminal Law which says that headquarters are responsible for the conduct of their subsidiaries wherever they are domiciled (evidence),
- by ignoring Article 6 of the Principles of Criminal Procedure Law which says that Prosecution has to investigate the incriminating and exculpating cricumstance with equal care (evidence). Julius Baer`s abusive business (e.g. shame trusts, tax evasion, fraud etc.) was excluded in the investigation and ruling of the Swiss authorities by the Federal and local (Zurich) Prosecution offices, judges of the lower and higher court.
- by materially amending the indictment of June 25th, 2011 and replacing the former indictment with a new and amended indictment of December 13th, 2013 by the Prosecution Office under the guidance of the judges of the High Court. (evidence).
- by applying Swiss Bank Secrecy (Art 47) to a trust company, not a bank, of the Cayman Islands (source of the data Julius Baer Trust Company Ltd, Cayman Islands (evidence),
- by ignoring the fact that the Cayman Islands does not have a particular banking secrecy law. There only exists a confidentiality law which covers the entire industry in the Cayman Islands,
- by ignoring the fact that 5 medical doctors confirmed before Dec 10th, 2014 (Trial date) that Rudolf Elmer was not fit for the trial (Elmer was twice in the Emergency Room in the hospital Dec 8th 2014 and Dec 10th 2014 and survived another breakdown Jan 12th, 2015, evidence),
- by delaying the case for more than 10 years (first imprisonment of Rudolf Elmer Sep 27th, 2005 (evidence),
- by ignoring the criterion of the decision of the European Court of Human Rights in the case of Germany vs Heinisch of 2011 where it is state that whistleblowing is protected under certain conditions (evidence).
- by ignoring Swiss Federal Law which the judges of the High Court of Zurich did in the case against the journalist Leo Müller (BILANZ, Axel Springer Verlag) defended by the well-known law firm LEXPARTNERS.MCS (lawyer Tobias Troyer). The ruling of the Swiss Federal Court of December 3rd, 2015.
That is not all there are more reasons why Swiss Bank Secrecy cannot be applied in the case of Rudolf Elmer, however, those reasons have been presented to the Federal Court of Switzerland for a public debate only among Federal Judges at the Federal Court of Switzerland in Lausanne on Wednesday, October 10th, 2018, 09.15. t the continuation of the appeal trial at the High Court of Zurich. The High Court of Zurich eventually was forced to issue contre-coeur an acquittal in respect of the violation of Swiss Bank Secrecy in 2016 but charged Rudolf Elmer court fees of CHF 320`000 an astronomic amount simply to take revenge in my view. For the finance center of Zurich it is crucial to make Rudolf Elmer a scapecoat. Finally, the purpose clearly was to demonstrate to other potential Swiss whistleblowers that you will encounter the social, financial and professional death if you dare to tell the truth to society about the dirty part of Swiss Banking!
The prosecution of Rudolf Elmer has been
1) one of the biggest mistakes of the Financial Center of Zurich because it hurts the entire Swiss financial industry
2) a time-wasting investigation which now fires back
3) extremely expensive not only financially but also from a reputational point of view for Switzerland and als the Swiss tax payers
4) aimed primarily at deterring others from blowing the whistle on illegal and unethical behaviour by Swiss banks.
The abuse of the Swiss legal system in an attempt to intimidate potential whistleblowers has caused great harm to the independence of the Swiss judiciary and to Switzerland's international reputation.
Who wonders why Herve Falciani, Stephanie Gibault, Bradley Birkenfeld and
many other whistleblowers would not come to Switzerland to stand trial!
Quoted from Scroll.in of India (Noopur Tiwari): "While bankers running the racket on an industrial scale got away unscathed, it was Falciani who had to do go to prison in 2012 for five months. He was arrested in Spain on an Interpol warrant issued by Switzerland. But Spanish judges refused to extradite him on grounds that his evidence showed the bank was acting like “a tax haven in itself”. It was a clear message: Falciani wasn’t the criminal on the run and therefore I was found guilty in Swiss Courts and punished with five years of imprisonment.
Falciani’s request to the court to summon the Geneva prosecutor (who recently blamed Switzerland’s “weak laws” for his failure to criminally prosecute HSBC) and French custom officials (who worked with him) were turned down. These witnesses would have worked in Falciani's favour. In refusing to admit them, the outcome of the trial is being manipulated."
Visit also for more information "Tax Justice Networks Blog - Summary of the causa