The whistleblower’s story-One man’s fight against the Swiss offshore banking system
WHEN he saw armed men striding towards him across the underground car park beneath his home on January 19th 2011, Rudolf Elmer’s first thought was that it was a contract killing. After that brief moment’s panic, he quickly realised the men, some of whom wore ski masks, were police. As he and his wife stepped out of their car, Mr Elmer was taken into custody. The police searched their house and left with an array of seized devices, including his 11-year-old daughter’s laptop and camera.
The arrest came hours after a Zurich court had convicted Mr Elmer of breaching Switzerland’s strict bank-secrecy laws—for leaking client data from Julius Bär, a bank where he had previously worked—and threatening a former colleague. The sentence, a SFr7,200 ($7,700) fine, was much more lenient than the prosecution’s demand of 12 months in prison.
The subterranean arrest opened up another legal front, related to something very public that Mr Elmer had done two days before: to publicise his legal battle, he had held a press conference in London’s Frontline Club. He spoke there about the damage being caused by dodgy financial goings-on in “secrecy jurisdictions”. The founder of Wikileaks, Julian Assange, then appeared at his side, and Mr Elmer handed him two CDs. This prompted Swiss prosecutors to file a fresh set of charges for violating bank secrecy.
It was just the latest development in Mr Elmer’s long-running stand-off with the Swiss authorities. They had brought their first case against him in 2005. He and Wikileaks had connected in 2008; soon afterwards the site published a first batch of Julius Bär client data. The bank responded by securing an order from an American court to shut Wikileaks down—the only time it has been ordered offline. That prompted a wave of international support for the site and contumely for the bank as an enemy of free speech. The court ruling was quickly reversed, partly on first-amendment grounds.
In 2016 the American government filed criminal charges against Julius Bär over its role in helping American clients hide undeclared money. The bank paid a $547m fine and admitted conspiring to shield accounts in sham structures. It is not clear if the Americans made use of data provided by Mr Elmer.
But he has definitely played a role in the broader increase in scrutiny of offshore finance. His actions encouraged the American assault on Swiss finance that began in 2007 and culminated in criminal charges and hefty fines. That forced the Swiss government to begin stripping away much of the once-iron-clad secrecy with which the country has, in the past, protected its banks.
In doing so, Mr Elmer’s case has shown up his country’s dark side. The Swiss are, by and large, unwilling to get into each other’s affairs. They offer support to friends and neighbours, they care about received opinions, but they prize their independence, sometimes to the extent of being stubborn, even awkward. When it comes to banking, though, the nation has often shown a deferential willingness to accommodate—one which, since laws introduced in the 1930s made it a centre for offshore finance, has been extended to unsavoury characters and ill-gotten gains along with everyone else. And the smooth, impersonal and lucrative amiability shown on the face Switzerland turns to the world in these matters has been backed up by a dead-eyed animus towards any individualist rocking the boats at home. As in other countries that rely heavily on providing homes for money people do not want taxed elsewhere, the financial establishment and the courts typically seek to crush those who threaten them with what can seem like a single will.
Unlike other bank whistleblowers in Switzerland, such as Hervé Falciani, who fled to France after exposing tax-dodging through HSBC in 2008 (and has received a five-year sentence in absentia), Mr Elmer insisted on staying even though he did not have to—Germany offered him witness protection. He has paid a heavy price, including demonisation, mental illness and seven months in custody under an archaic law allowing extended detention for interrogation.
But Mr Elmer has not had the fight knocked out of him. More than a decade since the first case against him, he is still locking horns with the authorities. He has had more than 30 encounters with the courts and endured 48 prosecutorial interrogations. His lawyer, Ganden Tethong, has 140 ring binders of documents related to his cases. At least 13 Swiss federal offices have been involved.
Julius Bär, whose headquarters are in Zurich, is not a party to any of the cases. The bank has long maintained that Mr Elmer was the classic disgruntled ex-employee, motivated by revenge. It calls the whole affair “unfortunate and very tedious”.
Mr Elmer was born in 1955 and his early years seemed to set the stage for an uncontroversial career. He grew up in a working-class neighbourhood of Zurich. His father was a train conductor. Rudolf was a keen sportsman; for a brief spell he was goalkeeper at Cambridge United, an English football team. Later he served in the Swiss army. He trained in accounting and worked for Credit Suisse, a bank, and KPMG, an accountancy firm, before moving to Julius Bär, where his mother worked as a cleaner for the founding family.
In 1994 the bank appointed him as compliance chief to its subsidiary in the Cayman Islands, the Caribbean tax haven through which it booked much of its global profit. At some point his relationship with his local boss soured, for reasons that are unclear. Mr Elmer says he was falsely accused of taking documents and that colleagues resented his blocking of certain transactions. An internal report branded him a “critical thinker”; it was not a compliment. The bank asked him to take a lie-detector test. He reacted angrily. He was sacked in late 2002.
When the bank shipped his possessions on to him it inadvertently also sent back-up files containing account data. Mr Elmer, as compliance officer, had been entitled to keep such files at home. After contacting the bank and certain clients to say he had potentially incriminating information, he sent the files to Switzerland’s tax authorities. They were unable to do anything with them because the Swiss prohibition on disclosing bank secrets makes no exception for disclosure to government agencies. It was then, Mr Elmer says, that he concluded he needed help from abroad, and began contacting foreign governments, journalists and NGOs.
Over time the stress of fighting the bank began to cloud his judgment, leading him to do some ill-advised things. He wrote threatening e-mails to bank staff and a client. He made silent late-night phone calls to Julius Bär’s general counsel, Christoph Hiestand. He even wrote a letter to the NPD, a far-right German group, offering the client data (but says he never sent it).
No Chancellor
And then there was the Angela Merkel letter. Among the documents published by Wikileaks was a letter purportedly from the bank to the German chancellor, asking her to close her offshore accounts. The letter, littered with spelling mistakes, is clearly a fake; there is no evidence Mrs Merkel had any such accounts. Mr Elmer wrote it himself. He says he added it to the batch forwarded to Wikileaks as a test, to see if they would filter material before publishing. Whatever his motive, it undermined his credibility. In 2016 it led to his conviction for falsifying a document. (He denies other unstable behaviour attributed to him, including the allegation—floated in a court filing by the bank’s lawyers—that he sent a threatening letter to Julius Bär’s New York office containing white powder and making reference to “9/11”.) He talks candidly now about his mental fragility at the time. He was diagnosed with PTSD, later suffered a breakdown and was hospitalised. He asked his mother to lock his two army pistols in her safe, fearful that he might do something he regretted with them.
"People like Elmer are not always nice, their motives are not always clean. They get excited...and make mistakes. But that doesn't mean they don't at anything," says Mark Pieth, corruption expert from Basel University who has provided legal statements supporting Mr Elmer ' s defense. Sol Picciotto of the Tax Justice Network, an NGO, which is also know Mr Elmer, applaud him for "taking a principled stand on an important issue", but accepts he is not always easy to deal with: "He is understandably obsessed with his case and the treatment he has received, to the point where he may have over-personal."
Such reactions are hardly uncommon when a whistleblower lacks a support for networking and is put under pressure—and much was topped at Mr Elmer. He may have come up with threats, but he also got some nasty ones. An email, later traced back to a common internet terminal, said: "your daughter will be killed if you don't stop."He and his family were convinced that they were followed around by men in black cars with German number plates.
This was not just paranoia. When Mr Elmer ' s wife, Heidi, noticed she was tailed one day in 2005, she called police. They told her to stop at a gas station. The other car followed her there. Police arrived and questioned his driver, who admitted to working for a private detective firm. It sparked a legal complaint that showed that the shadowers were employed by Julius Bär. The bank said it had hired them as a defensive target after Mr Elmer arrived with threats. Some of the bank's top management, including the board, president, Raymond Bär, suffered the embarrassment of being grilled by a prosecutor. The case was terminated in 2011 with the two sides agreeing to a settlement of SFr700,000, more than 20 times the norm for such a case, to be paid to Mr Elmer ' s daughter. He put this in a (fully taxed) offshore trust in her.
He also suffered abuse at the hands of the Zurich cantonal prosecution and the courts, which played firm and loose with the law to nail him. They seemed outrageous on his full frontal attack on the city's economic bedrock, and it was decided to send a message to someone else thinking about the data leaking.
At every turn they made life difficult for him. They rejected his demand to deliver witnesses. Prosecutors dragged out the pain, taking five years to produce an indictment. The seven months in sum that he spent locked up were very unusual in a white-collar case. Mrs. Elmer was barred from visiting him because she too, who was under investigation, as a suspected accomplice (as the case was dropped after his release).
Some charges were built on flimsy evidence. Some judges could hardly hide their contempt. One, Peter Marti, who offers a " personal opinions "off the Bench, branded Mr Elmer an" ordinary criminal", for which he was absolved of secrecy charges—an outbreak criticised by other judges. Mr Marti is affiliated with the Swiss People's party, the political party most devoted to protecting banking secrecy. Already hostile to Mr Elmer, the judge may have grown even more so when, during his recitation of his decision, Mr Elmer sought to hook him up by asking for a toilet break three times in less than half an hour.
The Tax Justice Network claims that Switzerland" destroyed its courts "to teach Mr Elmer a lesson and discourage would-be informants, meting out"the kind of treatment one might expect from a totalitarian regime". His efforts to undermine an industry that had brought great prosperity were shown by much of Zurich's Old Town, the judiciary as akin to treason.
The canon courts acted" like a Holy Inquisition " in the work of Mr Elmer, he says Pieth. "If they couldn't prove his guilt on one charge, they'd find another to get him on."Another academic who was taken in to offer a legal deliberation, Wolfgang Wohlers, also of Basel University, recalls the prosecution radiating vengefulness. Why? "Elmer was considered a Nestbeschmutzer" - one who Bugs his own nest.
Prosecutors have strongly defended their approach in the past, but went down to comment on this article because the case has been appealed. Many legal experts and politicians believe government lawyers mismanaged the case. "The way they went after him was ridiculous," says a public servant, adding that Switzerland today is different. It has accepted the need for more transparency and signed up to an OECD led-a standard for the exchange of account information with other countries ' tax authorities from 2018.
However , a proposal that banks be required to check all clients " tax compliance has been dropped. The Swiss are instead likely to implement a" zebra " strategy—part white money, part black. This would involve exchanging data-account with other rich countries, but not with many of the African, Asian and Latin-American countries that are the source of much of the world's illegal wealth. The Swiss have good reasons to worry about some of these countries " data-protection standards, but activist fears concerns will be exaggerated to avoid the exchange of information.
Meanwhile, Switzerland's treatment of whistleblowers is still shoddy—and, unlike in most developed countries, risks getting worse. The hotel does not offer any legal protection at all to private sector informants, and no one is in sight. The penalty for violating financial secrecy has increased since Mr Elmer was first arrested. A whistleblower selling data now faces up to five years in prison. Switzerland is almost alone in refusing to help other countries if the economic-crime investigations rely on stolen data.
Outside the law
As rough a ride as Mr Elmer has had, legally it could have been worse. Last year the higher court of Zurich found him guilty of making a threat as well as curing Merkel's letter, but acquitted him of all of the more serious charges related to breaching bank secrecy. He received a 14-month suspended sentence.
It was wise tactics on the part of Ms Tethong, Mr Elmer ' s lawyer, who won him the bank-secrecy acquittal. He had wanted to focus his defense on colloquial arguments. She instead showed the legal tables by claiming that he had not violated Swiss secrecy laws. The employment relationship was not with a Swiss bank, but with a Cayman trust company. Mr Elmer-laughs at irony: the very reason for banks like Julius Bär to create independent subsidiaries in places like Cayman is to be outside Swiss law, making it possible for clients to avoid taxes and other regulatory requirements in Switzerland and their home country.
Mr Elmer still has critics. Alex Baur, a journalist with door Weltwoche, a Zurich-based magazine, rejects him as "a simple blackmailer", motivated by revenge and money. Mr Baur also claims that data Mr Elmer exposed was of poor quality and has led to few, if any, criminal cases.
It is difficult to know; governments do not state sources of their investigations. Information provided by Mr Elmer was probably not as useful as dished up with HSBC 's Mr Falciani, or by Bradley Birkenfeld, as revelations about Americans' use of UBS to stash untaxed money originally set off America's attack on the Swiss economy. But Mr Elmer's files certainly shed fresh light on questionable chairs and banks ' questionable handling of "politically exposed" clients. As for his motives, he may initially have just gotten angry about getting fired. But over time his struggle turned into more of a moral crusade. Such a conversion is not uncommon. Mr Birkenfeld, who now speaks out against the economic damage done by the offshore malfeasance, spilled the beans because he discovered by chance that his supervisor had prepared documents that left leaders who are subjected to persecution while covering their own backs. He acted by getting them before they got him.
Mr Birkenfeld received a $104m whistleblower award from America's Internal Revenue Service after serving 31 months in prison. Mr Elmer has now applied to the US government for such an award, and has previously chosen not to do so. He does so to avert personal bankruptcy, he says. The Zurich courts have ordered him to pay most of the costs of his case, amounting to some SFr300,000. He says that he can not pay. When will the legal quarrel end? Both parties have appealed to the Switzerland Supreme Court against the latest ruling. It could drag on this year. Part of Mr Elmer seems happy with it. He revels in his horseback status and has developed a taste for lawsuits that apply. He has filed around 60 legal complaints on his own-against the bank, its chief attorney Mr Hiestand, judges and journalists, including Mr Baur. He takes a defamation complaint against judge Marti to the European Court of human rights. "I'm tired of it all, to be honest," says Mrs. Elmer. "But Ruedi is not one to give up."
He has time for such pursuits. Prosecutors have worked to get him to banned from banking failed, but he would struggle to find work in his old profession; the Elmers rely on Mrs Elmer ' s work as secretary for his modest income. He has dabbled in politics, standing unsuccessfully on the left-wing Alternative list ticket in the cantonal election in 2015. There may still be more finery to blow: if the Supreme Court maintains its acquittal on secrecy charges, he may release more data. He says he has made only 5% of his cache public.
Saga has taken its toll. Years of negative pressure have pushed friends and family away, including Mr Elmer's siblings. "Our social life is very limited," Mrs. Elmer shrugs. But Mr Elmer, now 62, is quite cheerful. And he is less slandered than he once was. International disapproval and the global financial crisis have left the Swiss less defensive in their banks. The media, when almost universally hostile to Mr Elmer, is now divided in the middle. "Things have gone our way," says Mrs. Elmer. Inside Paradeplatz, an online newspaper with its own ability to capture financial zeitgeist, Mr Elmer describes as the most undervalued opponent the banks have faced. Gian Trepp, a journalist who has long fought for his cause, says: "Ruedi is stubborn, single-minded. He is like an old farmer. One hundred percent Swiss."
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The bottom line is for the people to regain their original, moral principles, which have intentionally been watered out over the past generations by our press, TV, and other media owned by the Illuminati/Bilderberger Group, corrupting our morals by making misbehaviour acceptable to our society. Only in this way shall we conquer this oncoming wave of evil.
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