We will publish on this page general information and updated details on the judicial fights of tax evasion whistleblower and former Wikileaks source Rudolf Elmer, whose case we believe is at the center of, and crucial (at the highest level) to, international justice.
Throughout the years this page has become the authority on Rudolf Elmer's fight since it contains dozens of copies of original documents including many exclusives, now made available to everyone to better understand this almost decade-long case and the wider politics behind it.
It is important to remember that the high stakes of this case shouldn't obscure the fact that it has cost a lot to Elmer and his family. For more on this read our interviews with him (1 and 2).
Note: Translations below are working documents to help non-German-speaking readers understand the main issues. Only the original documents are considered authoritative.
July 24, 2014, 03:00 p.m. Today journalist David Leloup publishes an exclusive article that lifts the veil on what happened on January 17 2011 when Rudolf Elmer met Julian Assange at the Frontline Club in London, where he handed over two CDs allegedly containing data on 2,000 wealthy tax cheats.
It appears that, although the CDs were empty (an evident precaution in case of a raid by authorities), Rudolf Elmer did give Assange the data on 2,000 offshore accounts holders, whose accounts were managed at the Standard Bank in Jersey.
However Assange seems to have chosen not to publish the data in order not to put Rudolf Elmer at more risk of abuse by the Swiss judicial system.
Following this symbolic act, and despite the absence of evidence of any real data having been handed over to Wikileaks, Elmer has been jailed for 187 days at his return to Switzerland from London just as a preventive and punitive measure.
Two weeks ago (see the July 10 post below) Rudol Emer has been charged for violating Swiss bank secrecy during this symbolic act, still without any evidence of data being handed over or that it was pertaining to Jersey, which is of course outside of Switzerland's jurisdiction.
July 23, 2014, 08:00 p.m. The Economist newspaper has published a blog on Rudolf Elmer's woes, in which it summerizes quite well the contradictory (even conflicting) decisions of differents branches of the Swiss government, such as signing an OECD convention for greater tax transparency on the one hand, and charging Rudolf Elmer with a three years old alleged offense on the other.
These conflicts may indicate that the controversy that Swiss banking secrecy created outside the country may have spread internally, which would be a good sign of democratic progress on this issue in Switzerland.
Indeed the Zurich prosecution office of prosecutor Peter Giger has issued a statement yesterday informing that Rudolf Elmer is charged with revealing Julius Baer (his former employer) client accounts details via Wikileaks, between 2007 and 2011.
We are convinced that this new attempt by the Zurich financial lobby, through the Zurich canton prosecution office, will only be counterproductive to them as it will bring back under the international spotlights Rudolf Elmer's courageous act and the plight through which that same prosecution office (as well as allegedly Julius Baer) have put him and his family.
Prosecutor Peter Giger's phone statement, relayed by Bloomberg, is quite revealing that he wishes to ignore Elmer's bigger picture message and focus on legal technicalities in order to try to pin him down:
“Elmer sees himself as a whistle-blower,” prosecutor Peter Giger said by telephone. “He has a message he wants to bring across. I am convinced he broke the law in trying to do that.”
This new fight will be the occasion for us to step up our support to Rudolf Elmer and reflect on new ways to bring his case to further international attention. Get in touch with us if you wish to join our effort.
Meanwhile, on the good side, after the kangaroo court trial (see previous posts) in which tax evasion lobby-apologist and pseudo-journalist Leo Mueller was shamefully cleared of defaming him, Elmer appealed to the Zurich High Court, which has accepted his complaint and will most likely handle the case much better than the Lower Court, at the expense of Mueller but also the Lower Court puppet judge (again see previous posts for the shocking details).
We'll keep you posted of further developments on this page and also through our Twitter account.
PS: Here is the English translation of an article, "Life Like A Thriller", on whistleblowers, published in newspaper Handelblatt's print edition of June 17, 2014.
April 11, 2014, 06:00 a.m. We're glad to publish Rudolf Elmer's open letter (in the original Swiss-German and a rough English translation for general understanding) to Swiss Government Advisor Martin Graf to attract his attention on the impact the nine-year-old ongoing and internationally growing case against him could have on Swiss finances and the broader economy, and on the latest support he got, namely from Pope Francis, Martin Schultz (President of the EU Parliament), and Herman Van Rompuy (President of the Council of the European Union).
April 6, 2014, 11:00 a.m. Congratulations to the producters and crew of "A Leak In Paradise", the documentary on Rudolf Elmer's fight again bank secrecy and tax evasion, for winning at the the pitch contest of MIPDoc festival. Here's an interview of a representative of the producers after the winning:
Below is a teaser of the documentary. The producers are looking for more deals with TV channels in order to reach their funding requirements.
March 13, 2014, 07:45 p.m. To this day, the judge sitting at the hearing of Elmer vs. Meuller libel case hasn't made his decision known yet, which shows just how much the Swiss judicial system got entangled in its own - sometimes contradictory - ploys to try to protect the massive international criminal money white-washing machine that brings Switzerland trillions a year of what should have been tax contributions intended for other peoples, if not blood- and drug-money that should never have taken that circuit.
Just deciding if the statute of limitations has expired seems to be the subject of (most likely) a politico-judicial nightmare. And for good reason: if they decide in Elmer's favor, as common sense dictates when reading the content of the libelous article, then they'd be attacking the banking secrecy sacred cow. If they decide against him, they'd be handing him ammunition so that he can further expose to the international community (which is the more and more aware victim of the Swiss banking secrecy system's cost to the world) how much it has been and is still losing, and how easily huge criminal networks find refuge for their billions in the Swiss tax haven.
You can't fight the truth forever.
As we see it from here the Swiss authorities are trapped by their own doing and have reached a dead-end, and would better give Elmer a break, recognize the rightfulness of his almost decade-long fight, and start implementing fundamental change that will make Switzerland look more like a real member of the international community and not like the country that is justifiably attracting the anger and wrath of the world Superpower and of its European neighbors, and is friends only with some failed states and transnational underground criminal organizations.
February 24, 2014, 02:45 p.m. In a hilarious and revealing twist, the very "loud" (when he hides behind his pen to attack courageous citizens who challenge global criminal lobbies) pseudo-journo Leo Mueller... did not show up at court this morning! Maybe he overslept. Or maybe he didn't dare to show his face and face the music. Even his lawyer couldn't get hold of him on the phone, and after delaying the hearing by 30 minutes the judge decided to proceed with the hearing.
As for himslef, the judge... didn't make up his mind yet regarding the period of limitations, which is astonishing since he did put it on the agenda of today's hearing. After hearing Elmer's plea and Mueller's lawyer's, he decided to... still not make a decision, again.
When we were talking about the Swiss judicial system reaching unprecedented lows, for anyone who was still in doubt this may be the fatal blow.
The judge must make his decision in the next three hours, obviously by fax (another way of avoiding the public eye and anger?) since the hearing is over, otherwise he might be the subject of a complaint for not doing his job.
We will keep you informed of any development.
February 24, 2014, 11:15 a.m. Considering the fact that the hearing was scheduled to start with the discussion of the statute of limitations' applicability, Rudolf Elmer might or might not have had the chance to make his plea.
A rough English translation can be found here. (note: BILANZ, the newspaper's name, is obviously also auto-translated, as BaALANCE.)
Basically Elmer argues that the Bilanz issue containing the defaming article was published between February 12 and 25 2010 (Bilanz is a bi-weekly), which would make it still possible for the complaint to be heard (the defense will certainly argue for considering only the 12th of February 2010, which would render the complaint impossible to file since it would be over the four years' period).
Whatever the judge's decision, we have already shown (see below) that he couldn't have ignored that risk when turning down Elmer's previous complaints. The less painful decision though, for Switzerland's justice system credibility, is certainly to give Elmer his right to complain against a blatant and gross defamation attempt (see the Feb. 22 update below).
February 24, 2014, 01:00 a.m. In order to prove the incompetence or ill intentions of the Zurich Lower Court judge, we have had access to the Zurich High Court decision dating back to June 21 2013 (see PDF here) which shows that it had warned the Lower Court about the approaching statute of limitations deadline:
The hearing, scheduled to start in a few hours (at 10:00 am, GMT+01), will be the occasion for everyone to see how the Zurich Lower Court will handle this fact and if it will further undermine the credibility of the Swiss judicial system.
Note: we have been informed that the Occupy Zurich movement will be present at the Lower Court (at Wengistr. 28, Zurich) starting at 10:00 am to show support to Rudolf Elmer.
February 22, 2014, 05:30 p.m. In a manner charateristic of the deceitful nature of the Swiss judicial system, Rudolf Elmer has been informed this week by the district court that the first point to be discussed during the hearing on Monday is... whether the complaint is within the period of limitations of four years or not (it has been almost four years now since the publication of the article - which is the starting point for the statute of limitations).
Bilanz, Leo Mueller's article titles "What betrayal costs - The informant, the [German] data buyers, the damage: the [Swiss] financial center will lose little, Germany win nothing". Rings like propaganda.
This tactic shows once again the kind of (clan) support anti-whistleblower, pro-tax evasion newspapers like Bilanz get from the Swiss judicial system.
Needless to say that, even before it has started, Monday's hearing can already be called a kangaroo court and should be denounced as such starting now.
Despite this, Elmer is going to make a point during the hearing and will likely make a statement that we will publish, on Monday morning, on this same page.
Leo Mueller on Elmer and other whisleblowers: "The denounciators - Cheats and reprobates: the data thieves - At the beginning of each these cases a failed personality". Strong language from a coward siding with the system. Let's see what he says when it all collapses.
February 19, 2014, 11:00 a.m. On February 24 at the Zurich Lower Court will be held the hearing of the complaint of Rudolf Elmer against Bilanz journalist Leo Mueller for libel.
The article in which Rudolf Elmer has been defamed dates back to early 2010, however Elmer has only recently been able to finally file the complaint and get a court trial, after several failed attempts. Indeed, since March 2010, he has been turned down six times by the Lower Court judge (Th. M. Meyer) and High Court judge (K. Balmer) who put forward as a reason the ongoing case against Elmer (that is did he break the bank secrecy law). The true reason might instead be that the judges attempted to push the complaint against tax evasion lobby-apologist Leo Mueller beyond the period of limitation. Such are the politics of Swiss justice. It is not until Elmer brought the case two times to the High Court, which told the Lower Court judge to back-off, that he could finally file his complaint.
In his article Leo Mueller used strong language and called Elmer among other things a "data-thief", which is a typical wording that exposed criminal parties and their apologists use against whistleblowers.
During the next days we will publish here translated extracts from the article (which is in Swiss-German) and show everyone the kind of tactics and attacks the Swiss tax evasion industry has been using against Elmer.
Stay tuned, and visit our Twitter account for updates.
November 23, 2013, 04:30 p.m. It is now the ninth year of the case against Rudolf Elmer where he is suspected of sending threats to Julius Baer executives. Despite the absence of evidence, the case remains open, which is a way of keeping pressure on Elmer in the hope of seeing him throw the towel. We think this situation is unacceptable and could not last.
We have consequently addressed the top judges of the Zurich High Court (which handles the case) a letter to remind them of the absence of evidence, highlight serious inconsistencies and errors in the prosecution's case and ask them a few questions regarding the handling of the entire case.
Rudolf Elmer's fight continues to raise awareness and media interest worldwide. Tomorrow Spanish TV channel La Sexta will broadcast as part of its show Salvados a documentary on the massive whitewashing of dirty money thanks to tax havens. Preview here (in Spanish):
More news on the case will be coming soon.
Update: Salvados' interviews with Rudolf Elmer now available online here.
July 4, 2013, 03:30 p.m.
Good news regarding Rudolf Elmer, who won a partial victory against two Swiss newspapers -Weltwoche and Bilanz- who defamed him (one called him "data thief", and now a court says it has 20 days to come with proof of that).
June 15, 2013, 02:40 p.m. L'Expansion, a French economic and financial monthly newspaper, publishes a special report on "The Great Liars of the economy", such as Cahuzac and the likes who have avoided paying their taxes by stashing part of their wealth in the largest tax haven in the world, Switzerland.
The special report includes a portrait of Rudolf Elmer and his fight against the Swiss authorities to expose the systemic and massive white-washing of criminal money protected by banking secrecy.
June 11, 2013, 08:30 p.m. Rudolf Elmer's latest interview (in German) to the SWR:
May 15, 2013, 02:45 p.m. After our recent new interview with Rudolf Elmer, we publish his letter to the Zurich High Court judges to highlight irregularities in the handling of his case that suggest a partial treatment.
March 17, 2013, 04:15 p.m. Rudolf Elmer takes part to a panel on Indian news channel NDTV after an online newspaper revealed with hidden camera-supported footage that many banks have accepted to white-wash the money of a posing politician without knowing its source, and going as fear as suggesting multiple-account ith smaller unitary deposits schemes in order to evade suspiscion. Watch the debate below:
February 15, 2013, 00:00 a.m. The Economist has just published a special report on offshore finance titled "The agony and ecstasy of offshore whistleblowing", citing among others the story of Rudolf Elmer.
Whistleblowers who take on secrecy-obsessed Switzerland can expect even rougher treatment. Rudolf Elmer, a former executive in the Cayman office of Julius Bär, a Zurich-based bank, fell foul of his employer, the police and the Swiss justice system when he accused the bank of shielding tax cheats. Arrested in Switzerland at gunpoint by masked policemen in 2005, he was put in solitary confinement for six months, during which time no charges were brought and he was not allowed to see his wife. He says that after his release he endured various forms of intimidation, including cars screeching up his driveway at night. He feels that “whistleblowers in a secrecy jurisdiction are treated worse than murderers.” Julius Bär said Mr Elmer was “trying to make a living” out of his case and had “lost credibility”.
January 20, 2013, 7:15 p.m. Remember, two years ago, Rudolf Elmer was arrested in his country Switzerland and convicted for breaking banking secrecy for handing CDs to Julian Assange while no one (until today) can say what data was on them:
January 20, 2013, 10:00 a.m. A partial victory of the fight against Swiss banking secrecy and tax evasion: bank Wegelin & Co, the oldest private bank in Switzerland, closed down following its prosecution and conviction by a US court.
January 20, 2013, 1:00 a.m. Rudolf Elmer will be taking part to a German TV show (on Servus TV, in German) discussing the impact of Swiss tax evasion services on other European countries, such as Germany. Other guests will include Norbert Walters-Borjans, the NRW bundesland finance minister who paid for CDs allegedly containing names of German tax evaders.
Despite our reminding of the importance of Rudolf Elmer's case at a time when most European countries' citizens are being subjected to the toughest austerity measures in decades, while many high net worth individuals are evading their tax duties causing the disappearance of hundreds of millions of euros from states budgets; despite our serious concerns about the way the ECHR has handled Elmer's complaint, such as the fact that the complaint has apparently remained in limbo for virtually two years before being given to a junior judge who had just arrived at the ECHR; despite all this, the ECHR clearly avoids answering our requests, and fakes to treat them as an appeal, which they are not.
We clearly stated in our letter that our requests are made under the obligation and need for transparency of public institutions (the ECHR is such an institution), and the people's right to know how a public institution that is supposed to protect their rights as stated in the European Convention of Human Rights works and if it delivers on its promises.
Needless to say that we are disappointed by the ECHR's response, which only raises our concerns about its internal workings and its ability to protect European citizens' interests. Our actions to ensure that Rudolf Elmer's rights are protected and to expose any violation of them will not stop here. However we call on courageous investigative journalists to dig further into this matter: we pointed a certain number of possible irregularities, however more will probably show up if one looks closer.
As citizens you can also express your concern to the ECHR and to your MEPs, tweet, blog, and translate articles on this issue.
November 5, 2012, 2:00 p.m. Swiss television channel RTS (Radio Télévision Suisse) has broadcast a report on tax fraud by Swiss citizens, and interviews Rudolf Elmer to show how Switzerland prefers to go after those who expose tax evasion and fraud rather than those who commit it. Watch the report here (in French).
September 26, 2012, 1:30 p.m. Exclusive: After four years, the European Court of Human Rights rejects Elmer’s complaint
On 15 May 2012, the European Court of Human Rights (ECHR) has informed Rudolf Elmer that his complaint has been rejected [PDF].
Elmer has exposed in 2005 widespread “no questions asked” money laundering practices by his former employer, Swiss Bank Julius Baer, for clients who included high-profile international criminals.
In 2008, with the help of Wikileaks, which published documents revealing Bank Julius Baer’s practices, he filed a complaint at the ECHR on behalf of himself, his wife, and his daughter, for violation of their rights and threats to their life and physical and moral integrity. The complaint specifically targets Article 47 of the banking secrecy law, which states:
"Who discloses a secret, that has been entrusted with him in his capacity of an organ, employee, assignee, liquidator, or commissar of a bank, observer for the banking commission, organ or employee of an accredited auditing agency, or that he has perceived in said capacity, who seduces to violation of professional secret, will be punished with up to 6 months of imprisonment or fined up to 50.000 [Swiss] francs [~40.000 EUR]."
Note: As of January 1 2009 the Swiss Government increased the punishment to CHF 250.000 (EUR 205.000) and 3 years imprisonment.
The full complaint’s English translation from German can be found on Wikileaks’ website.
Following its worrying decision, and considering the many questions that its letter to Rudolf Elmer raises, we have decided to ask the ECHR for answers regarding specific questions. For more read our letter:
European Court of Human Rights
Mr. D. Rietiker
Council of Europe
67075 Strasbourg Cedex
Wednesday, 19 September 2012
Subject: Complaint Nr. 25154/08 - Elmer vs. Switzerland
Dear Mr. Rietiker,
Rudolf Elmer is a Swiss citizen who seven years ago exposed alleged systemic money laundering and widespread tax evasion services provided by his former employer Bank Julius Baer, which counted among its clients high-profile international criminals.
Since his courageous and highly civic whistleblowing act, Mr. Elmer and his family (namely his wife and his daughter) have endured a vicious and sometimes life-threatening campaign intended to discourage him from attracting attention to the criminal practices he encountered and witnessed during his former job and which he disclosed to the authorities. The instigators of this harassment want to punish him for this courageous act.
A case of Swiss banking secrecy violation was opened against Mr. Elmer by the justice system of his country, Switzerland, on 27 September 2005 and he was jailed for 30 days. He has since met systematic harassment and repeated resistance by the authorities to fully and impartially investigate the matter and to look into the reality of his claims regarding his former employer’s practices. The Swiss justice system has tried to silence him on several occasions, for instance when he was indicted in 2011 (after five and a half years of investigation) and jailed “preemptively” for six months in 2011 for an offence – i.e. a new violation of Swiss banking secrecy – that still remains unclear.
At the appeal of the case, on 17 November 2011, three Zurich High Court judges deemed the prosecution’s work – and even that of the judge of the Lower Court – to have been "sloppy". They demanded that the case be conducted all over again due to the fact it is still not known what sort of data are really in question. The prosecutor had originally accused Rudolf Elmer without any evidence and therefore now needs to issue two requests for administrative assistance to the USA and Mauritius. The timeframe for these previously “forgotten” requests will take at least another six months. Consequently, the entire legal case will be reviewed at the High Court of Zurich some time in 2013, close to eight years after the investigation started on 27 September 2005.
The failure to properly handle this case has had a tremendous impact on Mr. Elmer and his family’s lives as he lost, as a direct result of this long delay and his earlier imprisonment, three jobs and his entire investment in his company in Mauritius.
If true, Mr. Elmer’s allegations (which he supported with evidence to the ECHR, including a CD with the names of convicted and jailed criminals who had received wealth management services from his former employer, Bank Julius Baer) are of great importance, not only because money-laundering constitutes a substantial form of support for international crime (drug trafficking, illegal arms dealing, high-level corporate and state corruption, etc) but also because tax evasion costs European states billions of Euros per year.
According to conservative estimates by the Tax Justice Network, an organisation recognised for its expertise in tax evasion issues, global offshore financial wealth amounts to $21 trillion. A total ROI of 3% per year and a 30% marginal tax rate on this amount would generate $189 billion of revenues for countries worldwide.
Europe is currently undergoing an acute crisis, one which threatens one of the foundations of the European Union’s cohesion and very existence, i.e. the common currency, and consequently the political and social stability of the whole region. More than ever, fighting tax evasion and recovering past and future escaped duties should be among the highest priorities of all European institutions, including the European Court of Human Rights. European citizens, who are increasingly aware of the true cost of tax evasion and avoidance, expect nothing less from their directly and indirectly elected representatives and institutions.
Tax evasion and avoidance by high net worth individuals means they do not perform their civic duty towards society, and consequently violate the rights of all other citizens by forcing them to make up for this deficit by working harder, accumulating more debt and generally enjoying a lot less of the fruits of their labour. Some countries such as France, Britain, Germany, Austria and the United States have taken steps towards recovering taxes that have escaped them in Switzerland; however, this leaves dozens of other countries’ peoples still vastly defrauded of the wealth they worked to create.
In Mr. Elmer’s case, the violation of his rights and those of his family originate in the institutionalised protection of tax evasion and related practices within a European country, Switzerland, which is also a member of the Council of Europe. Indeed, the Swiss banking secrecy law discourages potential whistleblowers from exposing the banking malpractice and crimes they witness, and exposes them to severe “punishment”: up to three years of imprisonment and a CHF 250.000 fine (since 1 January 2009).
Not only does this law violate the freedom of expression rights of Mr. Elmer and any other potential whistleblower, but it is also applied in an arbitrary fashion by Swiss authorities in order to protect evasion and avoidance of other countries’ tax duties. This is seen as being in the "national interest" although it gravely harms the peoples of those other countries, including fellow European countries. For example, a Head Prosecutor initially proposed 4½ years of imprisonment in Rudolf Elmer’s case (attachment Nr 1), which is beyond the legal maximum and suggests an intention to punish.
In its ruling of 7 March 2011, the Federal Court of Switzerland (attachment Nr 2) heavily criticised Zurich’s judicial authority and stated that it was arbitrary to have consistently turned down the Elmer family’s written complaints in 2005 and 2007 about harassment by the management of Bank Julius Baer and its private investigators. Only in 2011 did the prosecutor for the Canton of Zurich personally question the Elmer family members for the first time – on 24 August 2011 – about what sort of harassment occurred in 2004 and 2005. The private detectives and the representatives of Julius Baer have been questioned several times since 2007 but have not admitted any wrongdoing.
This law – Article 47 of the Federal Law on Banks and Savings Banks – not only protects massive systemic and institutionalised crimes, it also discourages and goes after the only people who, because of the “black-hole” nature of the institutions it protects, from which no information can be gleaned from the outside, are in a position to put the system into check: insider whistleblowers.
In his initial complaint to the ECHR, Mr. Elmer cited offences and violations of his and his family’s rights, among which are:
Coercion via stalking by private investigators hired by Mr. Elmer’s former employer, Bank Julius Baer. Following Mr. Elmer’s complaint in June 2005, the Swiss justice system (namely, the Zurich-Sihl prosecutor) has failed to properly investigate the matter and finally rejected the complaint in March 2007, despite the clear threats to Mr. Elmer and his family’s physical and mental health, as supported by several pieces of evidence.
Harassment and unlawful termination of Mr. Elmer’s employment contract by Bank Julius Baer, against which Mr. Elmer couldn’t present any evidence without, ironically, violating the Swiss banking secrecy law.
The denial of legal assistance for Mr. Elmer by a prosecutor during his first interrogation on 28 September 2005.
Inhumane and degrading treatment. Despite a medical diagnosis showing a 100% incapacity, Mr. Elmer was kept in prison by the Zurich Canton prosecutor.
These accusations and others (again, supported by evidence) should be impartially and thoroughly investigated and the Swiss authorities ought to explain in full why due process has not been followed on several occasions during the course of Mr. Elmer's still ongoing case.
We have carefully read your letter addressed to Mr. Elmer, in which you notified him of your decision regarding the inadmissibility of his case to be heard at the ECHR. We are aware that the ECHR does not comment on its decisions; however, we would like to respectfully ask you to clarify, under the requirements of transparency and fair legal process which all democratic institutions owe to their constituents, certain aspects of the procedures followed in the handling of Mr. Elmer’s complaint:
A document entitled “The ECHR in 50 questions” provided on the ECHR's website states: “Manifestly inadmissible applications are examined by a single judge”. Since Mr. Elmer’s application was examined by a single judge (as opposed to a three, seven or seventeen-judge formation), what particular element(s) made Mr. Elmer’s application à priori inadmissible? And who decided on its admissibility within the ECHR?
Mr. Elmer’s complaint was received at the ECHR in May 2008. According to the document on the ECHR's website called “The European Court of Human Rights: Questions and Answers”, the delay before an application is examined can be up to one year. Assuming that Mr. Elmer’s application was therefore examined within one year of receipt, that is, by May 2009, and given that the judge who decided on its admissibility – Judge Julia Laffranque – joined the ECHR only in January 2011, could you explain what happened to Mr. Elmer’s complaint between May 2009 and January 2011?
Did any judges decline to handle Mr. Elmer’s complaint, and, if so, how many?
What is the ECHR’s position on hearing cases such as Mr. Elmer’s, which could drag on virtually forever before all domestic remedies are exhausted, given that such exhaustion is something the ECHR requires before it will consider an application to be heard by the Court? An obvious strategy by a state wishing to avoid scrutiny by the ECHR (Switzerland in this case) could be to simply drag its feet forever, hoping that the complainant’s will to seek respite and justice will wear out in the meantime,
Has the ECHR transmitted or shared part or the whole of Mr. Elmer’s complaint and pieces of evidence (including the CD with the names of Bank Julius Baer clients with a criminal record) with Swiss authorities, and if so, what precisely and with whom?
As a non-profit organisation dedicated to the defence of digital freedom – with an emphasis on freedom of information – we have been appalled by the case of Mr. Elmer, one of the most prominent whistleblowers to have used the digital space as a medium for exposing information of great value to the public interest. We have therefore decided to start a public awareness and support campaign to make Mr. Elmer's case much more widely known, both within and outside the EU.
For the reasons given above, we believe the ECHR should take a clear stance against Switzerland’s banking secrecy law, which causes grave harms for the majority of European citizens, and we regret that the ECHR didn’t take up the opportunity which Mr. Elmer’s complaint presented to deal with this fundamental issue of our time. However, we hope you can at least provide answers to the questions about his case outlined above in the interests of transparency and full accountability.
Please note that this letter and your reply will be published on our website (www.liberte-info.net) and on other news and human rights campaigning websites.
CC with attachments 1) and 2):
Nils Muižniek, Council of Europe Commissioner for Human Rights
Algirdas Šemeta, European Commissioner for Taxation and Customs Union, Audit and Anti-Fraud
Eva Joly, Member of the European Parliament
Sophie in ‘t Veld, Member of the European Parliament
Prosecutor's proposal of 4½ years' imprisonment, 10 March 2011
Ruling of the Federal Court of Switzerland, 7 March 2011
Copy of Mr. Elmer’s letter to the ECHR granting Liberté-info access to information about his complaint
We are looking forward to the ECHR's decision, and we will let you know of any new development regarding this case.
September 3, 2012, 1:30 a.m. On Saturday 8 September 2012, Rudolf Elmer will speak about food speculation at the Occupy gathering at Paradeplatz in Zurich, Switzerland, at 2:15 p.m. in front of the UBS and Credit Suisse offices.
July 14, 2012, 1:30 a.m. The Swiss Council of the Press has published yesterday its decision regarding Rudolf Elmer's complaint after a "journalist", Alex Baur, from the Weltwoche newspaper, and chief editor Roger Koeppel, have defamed him by portraying him as a thief and a blackmailer while the case was (and still is) in the hands of justice, and while also failing to mention this fact. The article in question can be found here, and the excerpt mentioning Elmer is translated below:
Note: the article's main subject is the sacking of Philipp Hildebrand, former head of the Swiss National Bank, after a whislteblower, "Reno T.", exposed his alleged insider trading practices. Disclaimer: this translation only intends to provide the general meaning of the article excerpt for non-German speakers; it doesn't pretend to be perfect
Rudolf Elmer, thief and blackmailer
Similar are the facts of Rudolf Elmer. The former employee of Bank Julius Baer had stolen in the Cayman Islands supposedly explosive customer data with which he tried to blackmail his (former) employer. Elmer's act fuels from the feeling of being mistreated by the bank after he didn't get a promotion. After a failed extortion attempt of the bank, Elmer sent the bank's data to various editors, and finally gave them to Wikileaks. So far, however, no journalist has utilized the data, suggesting that they are not of public importance.
However, in leftist circles that always cared little for banking secrecy, Elemer has the status of a whistleblower. This reflects a problem that occurs in the case of Hildebrand: It is always a question of political opinion, whether you condemn or celebrate the tipster. Which brings us back to the question raised in the beginning: Is Reto T. a hero or a traitor?
Strangely enough (or actually not), the council decided that Elmer's complaint was... partially admissible: as much as it sees "a violation of section 3 of the 'Declaration of the Rights and Obligations of Journalists'" after the journalists omitted to mention that the case was still processed in court, it states on the other hand that the journalists' allegations of "thief" and "blackmailer" are "almost admissible" because they were used in a "colloquial meaning" (sic!), and not a "legal" one.
This (along with most court decisions regarding Elmer, as you may have noticed if you've read the history of the case below) of course defies common sense and practice: in order to defame someone you don't need to do it with a legal meaning in mind or in form. And publicly portraying someone as a thief and a blackmailer, like the two pseudo-journalists did, is without question libel.
We read the Swiss Council of the Press' decision as a half admission that something is terribly wrong with the article, while in the same time covering for it. It reflects the poor state of the press in Switzerland, which explains the widespread political, corporate, and judicial abuses going on in that country (for the moment the victims, for instance of tax evasion, are outside the country; but a cancer is blind, and it ends-up turning against its own host). This is what happens when the accountability-seeking Fourth Estate is non-existent, and the press becomes nothing but an echo chamber for the political and corporate rhetoric. By trying to cast doubt on the nature of the words used by Baur and Koeppel, the council uses the same old technique as them when they suggest in their article that exposing financial crimes is good or bad depending on your political opinion. The F.U.D. (Fear, Uncertainty, Doubt) strategy seems to be a national sport in Switzerland.
It takes the intervention of another country like the US superpower to somehow get some sort of (small scale, and for US-interests only in this case) accountability of Swiss banks.
This is why whistleblowers like Elmer remain more important than ever.
Correction: it is Alex Baur and Roger Koeppel who defamed Elmer, and not Urs Engeler (who wrote the article on Hildebrand), like initially mentioned above. Our apologies to Mr Engeler. Corrected on 14-07-2012 at 12:28 p.m.
August 1, 2012, 11:30 p.m. Exclusive: the European Court of Human Rights turns down tax haven whistleblower Rudolf Elmer's complaint.
Elmer had filed the complaint in 2008, and had to write it himself since he couldn't find a lawyer to assist him.
The lightness of the decision on this case where the stakes are very high - especially at a time where most European states are under tight economic conditions, if not plain austerity; Let us remind that tax evasion allows XXX trillion to escape taxation worldwide, and XXX trillion only for Europe - is surprising: indeed the European Convention of human rights, which guides the court's work, states in its article 26 that cases ought to be considered by a single-judge formation, committees of three judges, Chambers of seven judges, or Grand Chambers of seventeen judges. Elmer's application has been reviewed only by a single judge, Julia Laffranque.
According to her Wikipedia entry, Judge Laffranque (maiden name Vahing) has an impressive curriculum, which comprises a doctorate in European Union law and several traineeships in European Commission as well as member states (Sweden, France, and Germany) legal entities. What is surprising though is her lack of experience in... the human rights fields. The closest experience she has is within a think-tank, Praxis, as a board member between 2000 and 2004.
EUROPEAN COURT OF HUMAN RIGHTS
COUR EUROPEENNE DES DROITS DE L'HOMME
15 Mai 2012
Complaint No. 25 154/08 Elmer. /. Switzerland
I hereby wish to inform you that the European Court of Human Rights on 10 May 2012 has in a single judge formation (J. Laffranque, supported by a rapporteur in accordance with article 24, paragraph 2 of the Convention) decided on 22 your April 2008 and placed under the above number and registered complaint
inadmissible to explain.
Insofar as the objections to his compétence. the Court is due to the disposal of all related documents come to the conclusion that the principles laid down in Articles 34 and 35 of the Convention conditions were not fulfilled.
This decision is final and not subject to appeal to the Court and to the Grand Chamber or elsewhere. You can therefore have an understanding for the fact that the firm will be no more over Information about the adoption of the single judge and no further correspondence with you drove in this matter. You will get into this case, no further correspondence, and file your complaint will be destroyed one year after date of this decision.
This letter is published in accordance with Article 52 A of the Rules of Court.
For the european Court of Human Rights
D. Rietiker Legal secretary
July 4, 2012, 11:20 a.m. Below is the translation of an article by Thomas Knellwolf published on June 9 2012 in the Swiss newspaper Tageszeitung (the original article can be found here [PDF]). It sums up the latest on the case.
The case against the bank-Baer manager Rudolf Elmer is progressing. The Julius Baer bank gives up its resisting the analysis of their data by investigators.
Friday of last week they all came: the Prosecution Officer, the lawyer of Rudolf Elmer, Rudolf Elmer who sees himself as a whistleblower and not as a data thief, the legal representative of his former employer Julius Baer and a Zurich cantonal police officer. After years of investigation three CDs were eventually unsealed holding the crucial bank information. Those CDs contain the information which the CFO of Julius Baer Bank & Trust Company in the Cayman Islands [Rodulf Elmer] had at his home for data security purposes (it was the daily back up) in the Cayman and he had not returned before his departure from the Caribbean Islands Cayman.
Elmer's dismissal took place almost a decade ago, but with the unsealing of the data of the internationally observed case we come a step closer to knowing whether there is a Swiss Bank Secrecy violation or not to be claimed. For the judges of the Zurich High Court those three CD-ROMs are of major importance. The meaning of the three CDs have been underestimated by the [Zurich] district court judge Dr. S. Aeppli, the prosecutors of Winterthur Alexandra Bergmann, and head prosecutor Dr. Jäger, which investigated the case for six years. The prosecutors and the judge never had knowledge of what was on the disks, as Elmer was sentenced for violation of Swiss Bank Secrecy in first instance to a conditional fine of 240 daily rates.
Elmer's lawyer had already made clear almost seven years ago that the case - disputed at the canton of Zurich court- was in the wrong place, because it is all about banking information from the Cayman Islands. The lawyer's objection had made little impression to law enforcement and prosecutors - just until the High Court in November last year made its point and did not confirm the verdict. It stated that in order to convict Rudolf Elmer there should have been information on Swiss account holders on the discs. If it is only Caribbean Bank data, it is likely to complicate the case even more. This trial has already lasted for a very long time by Swiss standards.
The prosecution is to be blamed for its poor work of investigation - but also the uncooperative bank Julius Baer which showed resistance. The bank, which started the case in 2005 with a request of investigation now claims that its business and banking secrecy is more important than the truth finding mission of the courts. Julius Baer started with this argument recently but was rebuffed at the High Court, gave up resisting eventually. Julius Baer has not appealed the decision of the High Court at the Federal Court, which would have been an attempt to protect customer information. The Chief Prosecutor Rolf Jäger confirmed an inquiry that the unsealing was done but he wanted to say nothing on its evaluation and content of the CDs.
One of the CDs at the center of attention has been sent - as he admitted himself - by Elmer to the Swiss Federal Tax Administration, and a second one at the Zurich fiscal authority. The defendant denies, however, to have sent an anonymous third CD to the editor of the newspaper Cash. A copy of this third CD has apparently been provided to bank Julius Baer. Curiously, the Cash newspaper wrote in its article that the CD contained data up to 2003. Rudolf Elmer had already been fired by Julius Baer in late 2002.
The strange game of the publishing house Riniger
Also interesting is the long way of the Cash CD, which must be evaluated by the prosecutors. Since 2006, Cash has - against the prosecutor's request - refused to hand over the data under the pretext of the protection of sources. Unlike Julius Baer the newspaper could be forced. Apparently the Ringier publishing house played a strange game providing the data to Julius Baer but not to law enforcement in 2006. A double play.
A report by the Zurich Cantonal Police, showed to the Tages-Anzeiger, states that the lawyers of the media company, the Zurich-based law firm Ritter & Schwaibold, passed on the disc to Julius Baer in 2006 - and did not take the position to protect their anonymous source. The officer of the Canton Police wrote that on 9 August 2005 he was told by the attorney of the bank, "that the day before, the law firm Ritter & Schwaibold provided the original to Julius Bae's representative in order to make a copy of the CD. After having reviewed the CD Julius Baer was not willing to pass on the information on the CD to the investigators. Prosecution had to settle with only three minutes of three Cayman meetings from the Caribbean unit of Julius Baer in order to prove a violation of Swiss Bank Secrecy. This was the fact until last Friday, June 1st, 2012.
June 9, 2012, 8:00 a.m. Bank Julius Baer had until May 31 2012 to appeal the judge's decision to unseal the client data CDs (see our May 18 2012 news below), and it didn't. This means client names and data might become public during the trial.
Here is an article by Salman Shaheen first published yesterday in the International Tax Review (ITR):
Swiss court’s unsealing of whilsteblower CDs spell more trouble for Julius Bär
08 June 2012
Salman Shaheen - ITR EXCLUSIVE: When Rudolf Elmer gave WikiLeaks the names of 2,000 tax evading clients of his former employer Julius Bär, he was arrested for breaching Swiss banking secrecy laws. But evidence to be presented at his trial may make things even worse for Julius Bär.
In the latest twist to a case that has now lasted more than six years, the High Court of Zurich has decided to unseal the three CDs at the heart of the matter. But with the trial being held in public, the contents of the CDs could prove devastating for Julius Bär when they are revealed. Not least because Elmer only published 5% of the data on WikiLeaks and there may be much worse to come.
Elmer tells International Tax Review that the prosecution in the lower court had argued that because he had a Swiss contract with Julius Bär for two of the eight years he worked for the bank in the Cayman Islands, his leak broke Swiss banking secrecy laws.
While the lower court found him guilty, the High Court judge decided in November last year that because the data on the CDs had not been revealed, it was not known whether it was Cayman or Swiss data.
“If it’s Cayman data, then it’s not under the banking secrecy laws and they cannot find me guilty on a contract,” said Elmer.
The fight was then on to find out what was on the CDs, one of which had been sent to the newspaper CASH. The prosecution had asked the paper to hand over the CD, but CASH instead sent the CD to Julius Bär on the grounds of protecting their sources.
Julius Bär was subsequently forced to hand over the CDs, but the bank tried to argue that they should remain sealed to protect client privacy. The High Court dismissed this argument and opted to unseal the CDs.
Julius Bär had until May 31 to appeal the decision, but the deadline has now passed with no appeal, which means the contents of the CDs are set to be revealed against the bank’s wishes.
The consequences could be disastrous for the bank and for tax evaders around the world. Client names will now fall into the hands of the Prosecution Office of Zurich. Because Elmer requested a public trial, the names will also be mentioned in open court. Foreign authorities will also have the option to request information from Zurich’s Prosecution Office.
“The can of worms will be opened even more,” said Elmer. “I believe it is very important for international clients to know that the CDs are now with the prosecution and an enormous risk arises that their names might be published, or even that information requests will be filed with Zurich’s Prosecution Office.”
Sources in the Swiss banking industry are dismissive of the dangers, arguing that Elmer stole the data from the Cayman Islands in 2002 and that it is now out of date. They point out that Elmer has been sending the information to tax authorities over several years, and that the data has already been published in WikiLeaks and the media. In effect, not much to worry about.
Not so, according to Elmer.
“I only published 5% of the data on WikiLeaks,” he said.
Elmer argues that he did not release the other 95% because it is not his job to publish the client names, it is up to the tax authorities to chase cases of evasion.
“When the CDs are unsealed it will be a lot more damaging than the original WikiLeaks publication,” said Elmer.
Julius Bär and their lawyer declined to comment.
Only time will tell whether or not the bank or its clients have anything to fear when the full contents of the CDs are opened up. But the fact that they fought so hard to keep them closed suggests they will not be looking forward to it.
May 30, 2012, 7:30 p.m. New website on tax havens, by the Tax Justice Network, with plenty of information, like the following video:
May 18, 2012, 1:00 a.m. Breaking: Zurich High Court judge decides to unseal the three "CASH" CDs! (If you missed the historyof the case see below.) This is a huge blow to Bank Julius Baer's case, to the Zurich prosecution office's slappy job (it colluded with BJB virtually in plain sight to throw Elmer in jail without a case), and to Swiss bank secrecy in general. Rudolf Elmer insisted on having a public trial (despite the pressure to do otherwise from BJB's lawyers and the Zurich prosecution office), which means that the content of the CDs will be made public during the trial.
May 13, 2012, 11:40 p.m. You can watch the program PlusMinus (in German) with an interview of Rudolf Elmer here.
April 30, 2012, 1:50 p.m. The Council of Europe has passed two days ago the resolution combating tax evasion facilitated by bank secrecy jurisdictions like Switzerland (not named in the report, but topping the list of biggest tax havens on which the report is based). Although this resolution is not binding, it is quite influencial, and could end-up at the European Parliament.
See here an interview with one of the Swiss members of the Council of Europe which shows the hypocrisy and misleading arguments used by pro-secrecy profiteers to keep the status quo.
April 14, 2012, 12:50 a.m. "Le secret des banquiers suisses" ("The secret of Swiss bankers") of Radio Canada's investigation programme Enquête is now available online (in French).
April 9, 2012, 7:50 p.m. Everyone should get and read the e-book "Tax Heavens", based on Rudolf Elmer's story: it provides a unique insight into the inner workings of tax havens, and constitutes a shocking account on how a Swiss bank has turned the life of a whistleblower into a nightmare, with the complicity of prosecutors, judges and cops, and the passivity of politicians. It is also an account of the extraordinary courage and resilience of a man and his family, with the purpose of helping advance the fight for global justice.
March 30, 2012, 5:40 p.m. French-speaking Radio Canada's program "Enquête" will broadcast on April 5 2012 a story on tax evasion whistleblowers, including Rudolf Elmer.
March 14, 2012, 1:00 a.m. BREAKING: following Zurich's prosecution office's request, Bank Julius Baer did provide on January 10 2012 the CASH (from the name of the newspaper CASH, Switzerland's equivalent of the Finacial Times) CD
allegedly holding data on its clients worldwide, according to the letter we publish here (an English in progress can be found here - if you speak Swiss German you can help us improve it!).
The order to provide the CD was given to the bank on December 20 2011, with a deadline on January 10 2012, and
follows the November 17 2011 High Court decision in which the judge asked the Zurich prosecution office to rework on
the case again since its job had been slappy up until that point. Indeed, the Zurich prosecution office was requesting
that Rudolf Elmer be guilty of charge without even looking into the content of the CD, which (along with two other CDs, ESTV and KSTA, provided to the Swiss tax authorities by Elmer) is the main focus of the
charges (violation of Swiss bank secrecy law).
The judge of the district court had already found Elmer guilty of the same charges on January 19th 2011, even though not the judge nor anyone else looked into the content of the CDs: a blatant miscarriage of justice. It was sufficient to the judge that Elmer had worked for two years under a Swiss employment contract when working in the Cayman Islands to convict him. Elmer's battle against bank Julius Baer and the Zurich county justice system has lasted six and a half years and counting, and
it is only today that decision has been made to investigate the data on the three CDs in order to try to find evidence of Swiss bank secrecy violation.
The bank's execution of the order comes a bit as a surprise, as it puts it in the awkward situation where it seemingly gave up
data of its own clients (some of which are, according to Elmer, tax evaders and convicted criminals), and consequently
the bank sort of breaches (more figuratively than legally) the so far sacred Swiss bank secrecy rule. Indeed, the case stands a good chance of remaining public, in which case the content of the CDs (and the identities of the clients, including possibly celebrities) would be publicly revealed.
Are bank Julius Baer's clients aware of this fact? How would they react if they were?
Bank Julius Baer's compliance is all the more surprising since the
alternative would have been for the bank to just pay a 10.000 CHF (indeed, according to Swiss law a party can refuse to comply
with a court order and pay a fine).
The three CDs are now sealed, and in order to unseal them a judge's decision is needed, which will likely take several more months.
We will keep you informed of further developments.
January 29, 2012, 1:00 a.m. We're publishing Zurich prosecution office's order to look into the content of the CDs (see below January 27's update), and its English translation. Many thanks to our supporter who made this translation possible. Another document awaits translation, if you speak German you can join the effort (platform kindly provided by anontranslator.eu).
As far as we know, bank Julius Baer has not yet provided the CDs to the prosecution. We will keep you updated.
January 27, 2012, 1:00 a.m. We're about to publish the court decision of the 17 November 2011 trial, in which the judge slapped the prosecution for its job on the case; and also Zurich's prosecution office's order to look into the content of the CDs... that Rudolf Elmer was sent to prison for, and which allegedly break Swiss bank secrecy law! Meanwhile, you can read the indictment of three Swiss bankers by US judge Rakoff, who takes his job and duty very seriously. It's an eye-opening (and also eye-popping) insight into how some Swiss bankers helped and gave advice to high-net worth US citizens to avoid their tax duties. Enjoy:
January 10, 2012, 10:00 a.m. Today, January 10 2012, is the deadline that the Zurich (Switzerland) prosecution office gave bank Julius Baer to comply with the November 17 2011 court decision, and provide the names of its clients whom it says were the subject of bank secrecy violation by Rudolf Elmer, that it sued in 2005.
The bank is facing a terrible conundrum: if it provides those names to the prosecution office, the latter will have to make them public (Rudolf Elmer insisted the case should remain public), and consequently not only those clients but all others who might know the same fate in the future will certainly remove their trust (and their money) from the bank in a wind of panic.
It would be quite an ironic situation, as the bank would do the same act as the one it went after Elmer for. And for which it also threatened to sue Wikileaks. Will we see bank Julius Baer the whistleblower, malgré elle?
Otherwise, if it chooses not to comply with the judicial order (which it can) it will face a 10.000 CHF (Swiss Francs) fine, not much regarding its financial might, but more importantly its relationship with the Zurich prosecution (which has protected the bank's interests while violating Elmer's rights in a shameful and blatant manner for six years, until last November 17's court decision injected some sense in the case) will probably be strained for a long time.
In both outcomes, as the fabrications, manipulations, and basic rights violations emerge, the case against Rudolf Elmer seems to slowly collapse, with each of the actors (bank Julius Baer and the Zurich prosecution office) having to play a different game, in which their own interests no more converge.
We'll keep you posted of any new development.
This case is all the more interesting to follow since Julian Assange is knowing the same kind of anti-whistleblower judicial persecution as the one Elmer went through so far. The collapse of this case, and the restoration of justice will certainly give both confidence to Assange's supporters and another hit to his persecutors in Sweden and the US, with the passive complicity of British, EU, and Australian authorities.
December 24, 2011, 11:30 p.m. Sorry for the long absence, there was no major update (except that Eveline Widmer-Schlumpf was elected President of the Swiss Confederation) and we were working on our Free Assange Now campaign. We hear the tide is turning in this case. More information soon. We are also working on a publication that will improve the general understanding of this case by the public.
December 9, 2011, 6:30 p.m. Update: You may remember that we requested a comment from Eveline Widmer-Schlumpf on Elmer's case, especially since she was a recipient of a copy of his complaint against Julius Baer and members of the Federal Prosecution while assuming the position of Head of the Federal Department of Justice and Police (that she left on November 1 2011 for the equivalent at the Federal Department of Finance).
We received a reply on December 7 2011, which we do appreciate, however unfortunately not from Mrs. Widmer-Schlumpf, but from the Deputy Head of Legal and Complaints Service (although our message and its subject clearly stated that we were requesting a comment, not filing a complaint).
Regarding the content of the reply, it states that "the criminal proceedings against Mr Rudolf Elmer are the sole responsibility of law enforcement agencies and courts", which we would have agreed with, except for the fact that Elmer raised serious accusations against those same law enforcement agencies and courts. Who was going to look into that, if the Federal Councillor for Justice didn't? Does it mean that Swiss law enforcement agencies and courts do whatever they like, they will never be accountable to anyone about anything? So this element unfortunately doesn't really answer our request.
Also the reply mentions the separation of powers between the legislative, executive and judicial branches, which we agree with (as it is supposed to avoid a single entity accumulating enough power to become a dictatorship) if it were really working that way in Elmer's case: what seems to have happened (make your own opinion on this by reading the relevant documents here) is even worse than a violation of the separation of powers, as it appears that the Zurich judicial branch has intentionally turned a blind eye on the alleged complicity of a corporation (bank Julius Baer) in tax evasion practices, while it went after the whistleblower, that it prosecuted for years without having a single clue on the content of the data at the origin of the accusations against him.
We get the impression that the Swiss government is hiding behind those same rules that are supposed to protect the small people from abuse (i.e. the separation of powers) in order to justify its inaction in a case as serious and (we believe) consequencial as Elmer's. This inaction may be interpreted by some as passive complicity.
Below you will find our request for comment to Eveline Widmer-Schlumpf (sent by e-mail on November 22 2011, in English), the reply of the Deputy Head of Legal and Complaints Service (in German) and its English translation (using Google translate).
December 3, 2011, 10:45 p.m. Correction: it seems Eveline Widmer-Schlumpf wasn't part of yesterday's ARENA show as we initially heard. Sorry for that. She will most likely take part to next week's. We will keep you informed.
December 2, 2011, 8:30 p.m. Eveline Widmer-Schlumpf seeks reelection (elections are to take place on Dec. 14 2011). Tonight at 22:00 local time she will be live on Swiss TV's political show ARENA where she will face her opponents.
December 2, 2011, 4:00 p.m. How high in the Swiss political sphere were people aware of Rudolf Elmer's case, and its shortcomings? It is interesting that Swiss Federal Councillor Eveline Widmer-Schlumpf had to go to Brussels to be blamed by the EU regarding Switzerland's complacency (to say the least) with tax evasion. Why? Because we have a copy of Rudolf Elmer's letter to her, dating back to February 9, 2009, where he informed her of his complaint against Julius Baer filed with the Federal Prosecution Office (see Deputy Attorney General Ruedi Montanari's response to Elmer's complaint), and even attached a copy of it (we will publish this full complaint later).
According to Elmer, his letter remained unanswered.
We have contacted ten days ago Eveline Widmer-Schlumpf for comment. We didn't get a reply.
How is it that such a rigged case (remember, the court recently admitted that it didn't know whether Elmer could be prosecuted or not, because the data simply has never been seen by the prosecution!) has been dragging for six years without a top politician, who was officially aware of it, raising her eyebrow?
Below is the letter in the original German. Would you like to help us translate it to English? Get in touch.
November 27, 2011, 11:00 a.m. Interesting article from Tagesanzeiger.ch: "EU now considering sanctions against Switzerland" picturing Swiss Federal Councillor Eveline Widmer-Schlumpf, and suggesting she wasn't too excited about going to Brussels to discuss the shaky tax practices reigning in her country. Wait, the name Eveline Widmer-Schlumpf rings a bell... Stay tuned.
November 25, 2011, 8:00 p.m. (Zurich time) In 2005, Rudolf Elmer was put in jail for... revealing to Swiss tax authorities the existence of wide spread and actively supported tax evasion at bank Julius Baer's operations in the Cayman Islands (see summary of the case here). You'd wonder, what is the document that supported this decision to put a whistleblower in prison for pointing crimes? Here is the document. You will notice the following:
It contains a blatant mistake as to the name of Elmer's wife (who made a statement before the prosecutor): Ranitha Rumarasamy is not someone Elmer seems to know. Who did the prosecutor hear then?
This decision, which is supposed to carry some kind of importance, is simply signed by... the prosecutor's secretary!
Also, Elmer remained in jail for over a month without a judge confirming the prosecutor's decision, which reflects the kind of outstanding power a prosecutor has in Switzerland.
Lesson to be learned: if you blow the whistle on tax evasion in Switzerland, it takes very little to put you in jail.
Below the original document, and its working translation (still subject to improvements).
Note: we have blanked the name and address of Rudolf Elmer's counsel.
November 25, 2011, 12:15 a.m. (Zurich time) In about twenty hours, we will provide you with evidence that Zurich's (Switzerland) justice system is no more professionnal than a banana republic's. If you live in Switzerland don't turn your TV on at 8:00 p.m. for the news hour; come here instead and see for yourself how little it takes to put a man in jail.
Correction: we earlier mentioned that the document we're about to publish is about the Swiss justice system; actually this is not accuate, as it is about the Zurich state justice system to be more precise (Switzerland is a confederation).
November 24, 2011, 12:40 a.m. We hear major international newspapers are about to publish their story on Rudolf Elmer's half-a-decade long fight for justice and truth, and against tax evasion and institutionalized cover-up. Meanwhile tweet, retweet and copy/paste this page everywhere: it's under a Creative Commons BY-NC-SA license!
November 21, 2011, 5 p.m. Update 1: All these Swiss-French newspapers – lematin.ch, letemps.ch, journaldujura.ch, bilan.ch, hebdo.ch, bluewin.ch, rfj.ch, swissinfo.ch, yatoo.ch, cboss.ch – now mention a "slap to the Zurich prosecution office" after the judge's decision that the indictment against Elmer was incomplete. If you Google "Rudolf Elmer giffle pour le ministère public zurichois" (giffle is slap in French), you'll find those articles, and more.
November 19, 2011, 10 p.m. Update 1: After the hearing ended without conviction and with the prosecution asked to work on the file all over again because of the lousy job, it is expected that the next court hearing will take place in several months. Meanwhile, we will continue posting pieces of interest in this case.
November 18, 2011, 5:30 p.m. (Zurich time): We are publishing a document showing the kind of rubber-stamping process that Julian Assange denounced after it took place against himself. However, this time it is not the work of the Swedish justice system, but of the Swiss one, and it has hit Rudolf Elmer.
This document, dated February 20, 2009, comes from the Office of the Attorney General, and is signed by the Deputy Attorney General Ruedi Montanari. It is the long version of the letter received by Rudolf Elmer, informing him that the complaint he filed against Julius Baer and Co, the Zurich-Silh Prosecutor and the Zurich canton police is dismissed. It contains the Deputy Attorney General's rationale for rejecting Rudolf Elmer's charge. Hhowever, its details have been kept from Elmer (Montanari writes "Mister Elmer will be notified that the charges are dismissed.". However, he also explicitly requests establishing a court order "in writing (certified)" to Julius Baer & Co - see the end of the document).
This is just one of the many inconsistencies riddling this document. Here are more:
In several instances, the Deputy Attorney General casts unreasonable doubts over the eligiblity of the accused to be investigated. For instance, he writes, "concerning the alleged bribery activities of Kurt Langhard and RA Christoph Hiestand, it is not obvious to what extent authorities are involved. Besides, because of insufficient international context and complexity, it would not fall under federal jurisdiction." So it won't investigate any further. This is clearly a twisted analysis and conclusion (Is it not his job to investigate missing elements? Can he not deal with complex cases?). It may suggest that the Deputy Attorney General did notwant to investigate those Elmer accused. Also, he writes, "the custodial judge Dr. E. Zweifel und lic.iur K. Ruesch may have been denounced by the district court of Zurich, but in the complaint it is not clear what for." Logically, Elmer should have been asked for more details.
Montanari writes "There is no concrete evidence which demonstrates that money from criminal activities has been transferred via Switzerland, so a sufficient reference to
Switzerland is missing" and further "a sufficient concrete suspicion against certain persons, a sufficient federal jurisdiction and a reasonable relation to Switzerland, according to the files, are missing."This did not stop the Swiss prosecution office of the Zurich canton from prosecuting Rudolf Elmer over alleged data about Julius Baer clients he gave Assange January 17 2011, resulting in imprisonment for 187 days without conviction. No one knows what was on the CDs Elmer gave Assange; Elmer says they were blank because it was a symbolic act.
That the federal prosecution turned down Elmer's complaint without any option for appeal should be questioned. Is it acceptable in a democracy that just one body can make such a definitive decision for such serious alleged crimes?
On one hand, the prosecution
illegitimate excuses to reject
charges against those Elmer accused; on the other hand, the whistleblower is put in jail for six months without charges brought against him.
Below is the original document (in German), and its English translation.
Note: We have erased the names of the Bank Julius Baer clients so that the attention doesn't get diverted from the true problem with Rudolf Elmer's case (and that of many other whistleblowers): Refusal of the justice system to perform its duty. Once it does, the names erased (and others, that Elmer said he transmitted to the Swiss tax authorities years ago) likely will be investigated.
November 17, 2011, 10:00 p.m. (Zurich time): the hearing took the whole day, as it was expected to. However the news look pretty good: the judge questioned the applicability of Swiss law over the data, which he wants to finally look at (since 2005, the beginning of Rudolf Elmer judicial odyssey, no one but Bank Julius Baer and himself knew the content of those data), and made a public statement saying that the prosecution's office performed a poor job, and he asked them to redo their work.
Note that it took six years for a judge to decide to look at the data.
Here is one of the rare Swiss-media articles which seems to report honestly on today's hearing (translation).
November 17, 2011, 7:00 p.m. (Zurich time): the fourth attachment of Rudolf Elmer's plea and statement is now on-line (see below). Thank you for your patience.
The document is mostly in German, with parts in English. Full English translation is underway.
November 17, 2011, 9:30 p.m. (Zurich time): Liberté-info Exclusive: Rudolf Elmer's intended plea at the High Court of Zurich (in German). (There might be changes with the actual plea he gave at the court.) It is a short version of the statement that we published this morning (see below).
November 17, 2011, 8:00 p.m. (Zurich time): Rudolf Elmer has asked us to publish a statement regarding his trial, where he describes the big picture on why, and how, he got into a situation where he is fighting both the Swiss judicial system (at state level) and the bank Julius Baer.
November 16, 2011, 11:50 p.m. (Zurich time) update: We are in possession of and about to publish a document that may suggest that the Swiss justice system has known for at least two years that it couldn't/shouldn't prosecute Rudolf Elmer over the data he made known about the bank operations in the Cayman Islands since it is not relevant to Swiss jurisdiction. Not only did they not inform Rudolf Elmer of this, but they informed the other party involved, bank Julius Baer and continued with his prosecution and jailing for banking secrecy law violation. Stay tuned (live updates on Twitter). More to come tomorrow morning (Zurich time).
November 16, 2011: A summary of Rudolf Elmer's case:
- Rudolf Elmer worked for bank Julius Baer from 1987 to 2003. During his last eight years at the company, he worked as COO and Compliance Officer in the Cayman Islands.
- In 1998 he started to seriously question the existence of tax efficient structures for Switzerland (as well as other countries), and the Julius Baer bank, as well as the existence and promotion of tax evasion and secrecy "services" for criminally convicted clients at Julius Baer. This questioning ultimately led to his firing in 2003. He says he was dismissed on the basis of an incompleted lie detector test.
- Elmer says threats and harassment took place from 2004 to 2005, by agents paid by Julius Baer. These threats started again in 2008 in Mauritius after he provided Wikileaks with data.
- In 2005, he was arrested for 30 days for violation of "Swiss banking secrecy" - for providing Swiss local and federal tax authorities with Cayman data allegedly showing tax evasion, for investigative purposes. The reason given is that Elmer was "under a Swiss employment contract". The message here is clear: if you are under a Swiss employment contract, Swiss judges will not hesitate to jail you if you come up with data suggesting malpratice in a tax haven like Cayman.
- In 2008 he gave documents to Wikileaks allegedly detailing Julius Baer's operations in Cayman possibly showing tax evasion, or worse (no further details available on that at the moment).
- The same year, he filed a complaint at the European Court of Human Rights against Article 47 of Swiss law on banking secrecy, stating that this article violates the constitutional rights of free speech.
- In January 2011 - six years after his imprisonment - he was prosecuted for threatening the bank Julius Baer to go public (which he admitted), for attempting to extort a payment of USD 50,000 from Julius Baer (which he denied), for handing over to Swiss local and federal tax authorities possible tax evasion-related data (which he did), and for the violation of secrecy law. (Strangely enough his handing over data to Wikileaks in 2008 was not included in the charges, but in 2011 he was imprisoned for 187 days for the symbolic act of handing seemigly empty CDs to Wikileaks' Assange on January 17 2011.) January 19 2011, two days after publicly handing the CDs to Assange, he was found guilty and sentenced to 240 days of jail or a 7,200 Swiss franc fine, but the sentence was suspended to two years probation. Believing the sentence unfair Elmer appealed the court's decision at the High Court of Zurich.
- Note that the prosecution had no proof about the content of the disks publicly given to Assange, which Elmer says were blank. He describes it as a purely symbolic act. Yet he remained 187 days in jail for that act, from January 19 until July 25 2011.
- His appeal's court decision will be heard November 17 2011.
- During all those years, Swiss authorities haven't investigated one single time Elmer's claims of Baer clients' tax evasion (with Baer's active involvement), supported by the data he gave the Swiss tax authorities. The tax commission of the State of Zurich II turned down the request of the Federal tax authorities and the prosecutor to have the data investigated. This raises serious questions on the commitment of that commission to carry out its role.
November 15, 2011 update 1: Below you will find a copy of the letter from the Office of the Swiss Federal prosecutor (in the original German, as well as the English translation) telling Rudolf Elmer that they decided "not to follow up" on the charges he filed against Julius Baer, one of its lawyers, a Swiss custodial judge, the office of the Zurich-Sihl prosecutor, the canton of Zurich police, and the office of the Zurich chief prosecutor.
What were the charges Rudolf Elmer filed against them? Stay tuned (live updates on Twitter).
Original document (in German; English translation is below):
November 10, 2011 update: The Swiss prosecutor's rationale (go to page 2 of the English translation) for demanding a harsher sentence against Rudolf Elmer.
November 11, 2011 update: Note that the prosecutor wants to charge Rudolf Elmer with what she calls an offense: the fact that Elmer symbolically gave two CDs to Assange. The prosecutor doesn't have any proof on their content, and Elmer claims that the CDs were blank (go to minute 3:00 of the video).
November 7, 2011: We publish here the details of Rudolf Elmer's trial in appeal at the High Court in Zurich to take place on Thursday 17 November 2011. Please show up to support Rudolf Elmer.
This information is subject to change.
November 11, 2011 update: a judge and the clerk have changed, update below.
Appeal Swiss and Wikileaks Whistleblower, High Court Trial related to the Swiss Banking Industry in Zürich, Thursday, November 17th, 2011, 0800
(Location: Klausstrasse 4, 8008 Zurich, Courtroom 2 moved to another larger court, ask once there)
Judges at the High Court will be President: Head Judge Peter Marti Referent: Judge Erwin Leuenberger Co-Referent: Judge Claire Brenn Rolf Naef Clerk: Huser Jasmin Stark
Plaintiffs: Winterthurs Prosecution Office representing Bank Julius Baer & Co. AG, GAM Holding AG, Curtis Lowell jun., Christoph Hiestand
Defendant: Rudolf Elmer Rudolf Elmer is accused of 1)violating Swiss Bank Secrecy, e.g. publishing data on Wikileaks 2)violation of Swiss industrial secrecy laws 3)coercion
Requested Verdict: "Convicted on all charges"
Prosecution Office Winterthur/Unterland wants to make the case that Swiss Bank Secrecy protects the data in the Cayman Islands and that based on a former employment agreement Swiss Bank Secrecy applies also to Rudolf Elmer working in the Cayman Islands.
Prosecution Office wants to make the case that Swiss industrial secrecy laws also apply to the Cayman Islands in the case of Rudolf Elmer and accuses him of disclosing Julius Baer’s secrets on how it uses the operation in the Cayman Islands providing Trust & Company, Mutual and Hedge Fund services as well as the administering of Special Purpose Vehicles e.g. offshore companies of Carlyle, Washington D.C. within the Julius Baer Cayman office.
Winterthur’s head prosecutor Dr. iur. R. Jäger requests an increased imprisonment from 8 to 12 months on probation, and newly a prohibition period of 3 years even though some complaints have been dropped at the Bezirksgericht Zurich. Dr. iur. R. Jäger concluded that punishment must be drastically increased. Dr. iur. R. Jäger argues that Rudolf Elmer is only out for revenge.
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