Rudolf Elmer

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Rudolf Matthias Elmer (born November 1, 1955 ) is a Swiss auditor and former manager of Bank Julius Baer , for which he worked for almost two decades. From September 1994 until his dismissal in December 2002, he worked at Julius Baer Bank & Trust Company in the Cayman Islands , most recently as operational director . He became known as a whistleblower and as an informant for WikiLeaks .

In January 2011, the Zurich District Court sentenced him in the first instance for repeated attempts at coercion , threats and violation of Swiss banking secrecy . Elmer and the public prosecutor's office appealed the judgment . Shortly thereafter, he was arrested on suspicion of another breach of banking secrecy. In the second instance in November 2011, the court did not issue a judgment, it sent the indictment back to the public prosecutor. This had to revise the investigation and, if necessary, supplement it.

In the 2015 Zurich cantonal elections, he ran for the alternative list in the Bülach district , but was not elected.

Dismissal and first activities

After US tax authorities were informed about business practices and, according to the bank, internal data had been stolen, every employee had to take a polygraph test. According to his information, Elmer was sick at the time. After failing the test, he was dismissed and - according to Elmer - was still in possession of backup copies. According to the bank, it was "data theft committed with criminal intent".

After his termination, he sent some documents about customers to various media, whereupon the bank - according to his account - put detectives on him and his family. In 2005 Elmer sent the Swiss business newspaper Cash a CD with 169 megabytes of customer data and was arrested shortly afterwards in Zurich. On suspicion of violation of Swiss banking secrecy he sat 30 days in custody . He later opened a website for whistleblowers.

From 2003 to 2005 Elmer worked for the Noble Group of China at the group company Noble Investments SA in Zurich. After his pre-trial detention, Elmer temporarily moved to Mauritius, where he worked for the South African Standard Bank on the island of Mauritius from 2006 to 2008 . Since January 2010 he has lived in the canton of Zurich . In 2011 and 2012, the International Tax Review magazine listed him among the 50 people and organizations that had the greatest influence on international taxation.

Publications via WikiLeaks

At the beginning of 2008 Elmer published internal bank documents with customer data and other internal information on the whistleblower internet platform WikiLeaks . With this he accused the bank of tax evasion , tax avoidance and systematic aiding and abetting. According to these allegations, Julius Baer Holding is supposed to smuggle millions of dollars past the Swiss tax authorities with its company and investment structure for itself and its customers via offshore structures . Bank Julius Baer points out in a statement that business activities on the Cayman Islands and other locations comply with and comply with all applicable rules and laws.

The bank took legal action against WikiLeaks, so on February 18, 2008 a judge in California ordered the website to be blocked. The judge later revoked the order, as WikiLeaks could still be reached via alternative portals in other countries. The bank then withdrew its lawsuit in March 2008 and announced that it had not wanted to close the entire portal, but merely asked the judge to remove the relevant documents on WikiLeaks. According to the bank, the documents are both stolen and forged documents, with the real papers selected in such a way that they would deliberately cast the bank in a bad light.

On January 17, 2011, Elmer held a press conference with Julian Assange of WikiLeaks at the London Frontline Club to present two data carriers in front of reporters. The records are said to contain information on 2000 account holders and come from three financial institutions, including Bank Julius Baer. Assange said the data would be reviewed and then published in full. A month later, Elmer stated in court that the data carriers were empty and therefore did not contain any bank customer data. This was confirmed in July 2011 by two persons close to Elmer who had attended the press conference in London. One of them said she received the information directly from Assange.

A film about Elmer's story was released in 2016 with the title A Leak in Paradise .

Trial (1st instance) and arrest on January 19, 2011

On January 19, 2011, Elmer had to answer before the Zurich District Court for breach of banking and business secrecy as well as coercion as the main charge. Elmer is said to have repeatedly harmed employees of the bank “through violence and threats of serious disadvantages” and issued a bomb threat against the bank's main building. He is also said to have tried in 2004 to want to extort 50,000 US dollars from the bank, but the bank did not respond to his offer. The WikiLeaks publications were not part of the indictment.

According to news agencies, Elmer admitted in court that he had threatened some bank employees in his letters. This after the bank fired him and then tried to intimidate him. He is quoted as saying: "I was in an extreme situation." "It is logical that I developed a defense strategy." However, he denied having issued a bomb threat against the bank. However, he threatened to divulge information about customers in tax havens to authorities in Switzerland, Great Britain and the USA. The public prosecutor's office demanded eight months' imprisonment without parole and a fine of around 2000 Swiss francs.

Elmer was sentenced by the court to a fine of 7200 francs (approx. 5600 euros) on probation with a probationary period of two years for repeated attempted coercion, threats and violation of banking secrecy . He also has to bear three-quarters of the court costs of 5,000 francs (approx. 3,900 euros). Elmer and the Attorney General submitted appeal against the judgment.

According to the court, the death threat against an employee of the Julius Baer Bank was the worst crime Elmer had committed. He was acquitted in the case of the bomb threat against the bank branch because the prosecution was unable to produce convincing evidence. It was clear to the judge that Elmer had not become a whistleblower out of ethical concerns and acted against his employer, but out of personal feelings of revenge: "You, Mr. Elmer, have been part of the banking world for years and have benefited from it." Elmer acted because he was not promoted and had disagreements with his superiors. Elmer is also said to have announced that he would pass on data to neo-Nazi groups and “other organizations that fight capitalism ”.

On the day of his conviction, Elmer was arrested on suspicion of another violation of Swiss banking secrecy. Two days earlier, Elmer had handed over two data carriers with data from alleged bank customers to Julian Assange from WikiLeaks for publication, as well as a data collection in 2008 that was published on WikiLeaks. The Zurich public prosecutor applied for pre-trial detention. On January 22, 2011, Elmer was taken into custody on the grounds that there was an urgent suspicion and danger of blackout . Elmer lodged a complaint against the pre-trial detention with the Higher Court of the Canton of Zurich . On February 16, 2011, Elmer stated in court that the data carriers were empty and therefore did not contain any bank customer data. The court found Elmer's account to be "completely unbelievable" and dismissed the complaint because of the risk of obscuration. In July 2011, the pre-trial detention was extended to October 2011. On July 25, 2011, Elmer was released from custody.

Court proceedings (2nd instance) on November 17, 2011

On November 17, 2011 the appeal hearing took place at the Higher Court of the Canton of Zurich . The court did not issue a verdict, it sent the indictment back to the prosecutor. This must revise the investigation and, if necessary, supplement it. The reason given by the court was that, apart from Elmer and Bank Bär, no one knew what these data actually consisted of. As long as it is unclear what kind of data these are, no judgment can be made. The judgment depends on whether the data from Switzerland are from Swiss customers or from the Cayman Islands, where Swiss banking secrecy cannot be applied. Bank Bär is asked to explain the exact content of the CDs, which it has not done so far. If the bank continues to fail to do so, the court will assume that it is “Cayman data” and that Elmer will be acquitted on the charge of breach of banking secrecy. If Elmer only broke the banking secrecy of the Cayman Islands, this is punishable there, but not per se in Switzerland.

The court also found that in the case of an “extremely massive threat” against an employee of Bank Bär's legal service, it had not been sufficiently proven that Elmer was the author of the threat. In the e-mail from Mauritius, the sender threatened the employee that he was a killer and targeted at him. But it is not enough that Elmer lived and worked in Mauritius at the time. It needs to be clarified where the threatening emails came from and who sent them. It is up to the public prosecutor to gather the necessary evidence.

Elmer withdrew his previous complaint against Bank Bär. He accused the bank of having observed him with private detectives. Elmer and Bank Bär did not want to disclose at the trial whether Bank Bär had given Elmer any money to withdraw the complaint.

In May 2012, the Zurich Higher Court decided in an interim decision that three CDs that Elmer is said to have sent to the tax authorities or the business newspaper “Cash” may be unsealed and evaluated by the public prosecutor. The court rated the interest in establishing the truth higher than the interest in secrecy of the bank Julius Baer concerned. Bank Bär waived the opportunity to appeal against this decision.

Court proceedings (2nd instance) on June 23 and 24, 2016

The appeal hearing against the decision of the 9th Department of the District Court from 2011 is scheduled for June 23 and 24, 2016 before the Higher Court of the Canton of Zurich .

Rudolf Elmer was acquitted on August 23, 2016. There was no breach of banking secrecy because Elmer was not an employee of a Swiss bank at the time in question. However, since he had violated his contractual obligations when posting to the Cayman Islands, most of the court costs were imposed on him and Swiss law was thus applied to the Cayman Islands. According to Anglo-Saxon law, which has strong whistleblower protection, a court in the Caymans and ultimately in England should have judged whether Rudolf Elmer violated his contractual obligations or whether whistleblower protection had been adapted. In the grounds of the verdict, the head of the higher court described him as an "ordinary criminal".

The public prosecutor and Rudolf Elmer filed an appeal with the Federal Supreme Court in October 2016.

Legal proceedings Swiss Federal Supreme Court October 10, 2018

The Federal Supreme Court decided the central question in the legal dispute over the former bank employee: Rudolf Elmer did not breach Swiss banking secrecy. After a public hearing, the Lausanne judges followed with 3 to 2 votes the judgment of the Zurich Higher Court, against which the Chief Public Prosecutor of the Canton of Zurich had lodged an appeal.

As a justification for the acquittal, the Federal Supreme Court stated that during the period of his indiscretions, Elmer would not have been employed by or commissioned by a Swiss bank, but had worked for the legally independent branch of the Bär Group on the Cayman Islands. In this case, Swiss banking secrecy applied in principle to employees, agents, liquidators and organs of Swiss banks, but not to employees of foreign companies or foreign branches of Swiss groups.

There is still no final judgment in Rudolf Elmer's case, as the Swiss Federal Supreme Court had completely overturned the judgment of the Zurich Higher Court and, according to the decision of October 10, 2018, demanded that the judgment be rewritten by the Zurich Higher Court.

Controversy

The Swiss newspaper Der Sonntag wrote in an article in December 2010 that Elmer admitted to having threatened several bank employees with death. Elmer said, “I must have made mistakes. Unfortunately, I couldn't control my emotions ». The newspaper wrote that Elmer forged several documents, which would damage his credibility as a whistleblower. The names and addresses of false people were also published on WikiLeaks as alleged tax evaders. WikiLeaks had to apologize to the person concerned in at least one case. A letter to the right-wing extremist party NPD in Germany was found on his computer , in which Elmer offered the party customer data. According to his own statements, the letter was never sent. On the other hand, a court-proven fact is that Elmer was convicted of threats and forgery of documents by the federal court on October 10, 2018. According to Elmer, the "Merkel Brief" was produced as a test balloon to test whether WikiLeaks published all information received without censorship. The publication of the Merkel letter was the starting signal for Elmer to upload further data. Elmer denied all other allegations or allegations not related to the indictment.

According to his information, he passed the data on to several media outlets and the Federal Tax Administration after he fell out with the bank and was fired. Elmer also stated that the data was used by tax investigators in Germany, the USA, Great Britain, France and Greece. There were also investigations in Switzerland.

According to research by the Swiss business magazine Bilanz in January 2011, Elmer is said to have passed on confidential data from another employer to authorities. After his dismissal from Bank Julius Baer in 2003, Elmer worked for several years as operations officer at Noble Investments , a Zurich-based hedge fund consultancy , and passed it on to the Zurich law enforcement authorities. These included tax notices, confidential correspondence, legal mail and internal audit reports. The data collection comprised around 10 megabytes of complex tax regulations and offshore structuring. The auditing company Ernst & Young and the law firm Niederer, Kraft & Frey are also said to be affected. The companies concerned had knowledge of the data leak, but according to Elmer there were no criminal proceedings against Elmer. The criminal proceedings against Noble Investments were later dropped by the Zurich authorities.

The journalist Ralph Pöhner wrote in Zeit Online that the Rudolf Elmer case was very typical, that it was “an example of the complex motives that make an employee a whistleblower. Personal dissatisfaction, anger, an escalating dispute, sometimes greed for money are combined with the insight that something is wrong in your own company. "

The journalist Constantin Seibt wrote in the Tages-Anzeiger : “Rudolf Elmer is the model case of a whistleblower. Precisely because he's not an angel. Almost all whistleblowers are difficult cases. They reveal the grievances of their companies not only out of a sense of justice, but also out of other motives, such as hurt vanity. And then get entangled. The more her own case becomes her life, the more destructive her struggle becomes: dismissal, years of court cases, divorce, financial ruin - the effects of whistleblowing are more like the consequences of a serious crime than a good deed. "

The journalist Carlos Hanimann wrote in the WOZ Die Wochenzeitung : “The story of Rudolf Elmer is that of a whistleblower, a man who - for whatever motive - raised the alarm, turned his knowledge to the public and had all the strength to do so of the financial center and its assistants. Much has been written about Elmer, often about his motivations, his mistakes, his psyche - especially in Switzerland. Very few in this country (in contrast to foreign media) deal with the facts that Elmer brought to light: for example the tax evasion practices of Bank Bär, the entanglements of the then lawyer and today's Tamedia president Pietro Supino , the methods with which the Bank Bear Elmer put under pressure. The financial journalist Gian Trepp , who has known Elmer since 2005 and has reported on him several times in WOZ, says: ‹The Elmer case is the story of a little man who stood up against Bahnhofstrasse. And now an example is to be made on him. ›»

Jack Blum, an American lawyer and outspoken critic of tax havens and, at an undisclosed point in time, Elmer's lawyer, told The Guardian in February 2009: “What Elmer is doing is extremely valuable in educating people about the need for a fundamental Reform. This is a system that serves to enable a certain class of people to evade their social duty, their duty to pay taxes. "

In January 2011, the journalists Yvonne Kunz and Christof Moser wrote in the WOZ Die Wochenzeitung that Bank Bär was behaving inconsistently with regard to banking secrecy. When Bank Bär filed an appeal in 2006 against the release of the CD-Rom with customer data to the Swiss tax authorities, the bank justified this by stating that the release would violate Cayman law. The public prosecutor, Elmer's accuser, argued against it: “As an aside, it should be noted that the recurrent (Bank Julius Baer) behaves inconsistently when, on the one hand, she reports a breach of banking secrecy and, on the other hand, asserts in the appeal proceedings that access to the files should be denied because the relevant data should suddenly be subject to Cayman's banking secrecy. "

In July 2012 the Swiss press council partially approved a complaint by Rudolf Elmer against the weekly magazine Weltwoche . Weltwoche journalist Alex Baur dubbed Rudolf Elmer a “thief” and “blackmailer” without confronting him with these serious allegations. The terms “thief” and “extortionist” are allowed in the given context, but the journalist should have pointed out in the text that the proceedings against Elmer are still ongoing and that Elmer denies the allegations. Weltwoche was convicted by the Zurich District Court in 2016 for the same offense. Weltwoche also lost to Elmer in two other cases because of its reporting: In May 2017, Weltwoche was convicted for alleging that the latter had passed on data to neo-Nazi groups and in January 2018 for illegally accusing Elmer of data theft.

In June 2017, the Zurich Higher Court ruled the allegation by journalists Alex Baur and Roger Köppel in the weekly newspaper "Weltwoche" that "Elmer had passed on bank customer data to neo-Nazi groups" as an illegal violation of personality.

“Weltwoche” violated the whistleblower Rudolf Elmer's personal rights in two articles. The journalists Alex Baur and Roger Köppel wrote that "Elmer had been harassing former colleagues and superiors for years with anonymous death threats and verbal abuse." In May 2016, the higher court also assessed these statements as serious personal injuries. The magazine "Weltwoche" has to publish the judgment. Elmer won only in part.

In March 2018 there was the third setback for Weltwoche from the Zurich Supreme Court, because journalists Alex Baur and Roger Köppel described Rudolf Elmer as a “data thief”. This designation was also qualified by the court as an “unlawful violation of personality”. For the third time, Weltwoche had to publish a verdict on the "Causa Elmer" in Weltwoche .

Publications

Web links

Individual evidence

  1. The voices from within. In: The time . January 8, 2010.
  2. ^ Swiss Banker Blows Whistle on Tax Evasion. In: New York Times . January 18, 2010.
  3. a b Whistleblower in the Twilight. In: NZZ am Sonntag . January 16, 2011.
  4. a b c Ex-banker appeals against judgment ( memento from November 23, 2011 in the Internet Archive ) in: Schweizer Fernsehen from January 20, 2011.
  5. a b c Elmer case: defeat for Zurich public prosecutor. ( Memento of the original from March 25, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Schweizer Fernsehen from November 17, 2011. @1@ 2Template: Webachiv / IABot / www.srf.ch
  6. Pascal Unternährer: Martullo-Blocher and Mörgeli miss election. In: Tages-Anzeigerch / Newsnet of April 13, 2015
  7. Stolen bank data ( Memento of the original from March 25, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Video in: Rundschau from April 2, 2008, from minute 3:15 @1@ 2Template: Webachiv / IABot / www.srf.ch
  8. a b Explosive confessions from a bank insider. on: Spiegel Online . April 8, 2008.
  9. a b From the banker to the polluter. on: Zeit Online . January 18, 2011.
  10. ^ Rudolf Elmer, l'ennemi intérieur. ( Memento of the original from June 2, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Le Courrier . March 9, 2011. @1@ 2Template: Webachiv / IABot / www.lecourrier.ch
  11. Le banquier Elmer, informateur de WikiLeaks et condamné en Suisse, recherché à Maurice. on: lexpress.mu , January 22, 2011.
  12. International Tax Review on November 2, 2012: Review of 2011. Accessed November 11, 2012.
  13. International Tax Review on November 5, 2012: Announcement of the current list.Retrieved on November 11, 2012.
  14. ^ Bank Julius Baer, ​​the Cayman Islands and the whistleblower Rudolf Elmer at: parlament.ch , March 19, 2008.
  15. ^ Complaint against Wikileaks withdrawn in: heise.de of March 6, 2008.
  16. These documents contain explosives. In: FAZ . March 6, 2008.
  17. Julius Baer closes website in the USA. In: NZZ Online . February 28, 2008.
  18. Press conference video in: ustream.tv, accessed on February 5, 2011.
  19. Page no longer available , search in web archives: Julian Assange supports banker Rudolf Elmer Video In: NZZ Online . January 18, 2011.@1@ 2Template: Dead Link / www.nzz.ch
  20. Schweizer transfers bank details to Wikileaks. In: DW-World.de , January 17, 2011.
  21. a b Why Elmer remains in custody In: Tages-Anzeiger . March 3, 2011.
  22. Discs Swiss banker gave to WikiLeaks held no secrets. on: Reuters . July 12, 2011; Archive version ( Memento from August 6, 2011 on WebCite )
  23. Elmer's CDs turn out to be a failure. In: Tages-Anzeiger . July 12, 2011.
  24. ^ Rudolf Elmer in the Internet Movie Database (English)
  25. Official website for the film
  26. a b c The man who whistled Julius Baer has to go to court in January ( memento of the original from August 29, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. in: The Sunday of December 4, 2010. @1@ 2Template: Webachiv / IABot / www.sonntagonline.com
  27. a b Wikileaks star appears before the Zurich court ( memento from August 10, 2011 in the Internet Archive ) in: Schweizer Fernsehen from January 12, 2011.
  28. a b c Judge: Elmer is a whistleblower out of revenge In: Tages-Anzeiger . January 19, 2011.
  29. Elmer's Mission in: The Sunday of September 10, 2011.
  30. Police searched Rudolf Elmer's house In: Tages-Anzeiger . January 20, 2011.
  31. Ex-banker Rudolf Elmer should be in custody In: NZZ Online . January 21, 2011.
  32. ^ Pretrial detention imposed on ex-banker Elmer In: NZZ Online . January 22, 2011.
  33. Ex-banker Rudolf Elmer files a complaint against pre-trial detention In: Tages-Anzeiger . January 27, 2011.
  34. Ex-banker Rudolf Elmer remains in custody In: Tages-Anzeiger . February 16, 2011.
  35. Elmer braises and braises and braises in: 20 minutes from July 19, 2011.
  36. Rudolf Elmer is free. In: The Sunday of August 14, 2011.
  37. a b c Defeat for prosecutors in the Elmer case. In: Tages-Anzeiger . November 22, 2011.
  38. No Swiss law on the Cayman Islands. In: Neue Zürcher Zeitung . November 19, 2011.
  39. Elmer withdraws complaint against Bank Julius Baer. In: NZZ Online . November 17, 2011.
  40. Unsealing of the CDs in the Elmer case approved. In: Neue Zürcher Zeitung . May 18, 2012.
  41. Thomas Knellwolf: The long way of a Julius Baer CD. In: Tages-Anzeiger . June 8, 2012.
  42. Zurich Higher Court SB110200-O threat etc.
  43. Brigitte Hürlimann: Rudolf Elmer largely wins - and is still punished ( Neue Zürcher Zeitung , August 23, 2016, accessed December 25, 2016)
  44. Rudolf Elmer No violation of Swiss banking secrecy found. In: https://www.nzz.ch . Retrieved November 4, 2018 .
  45. Rudolf Elmer did not breach banking secrecy. In: https://www.handelszeitung.ch . October 10, 2018, accessed November 4, 2018 .
  46. a b Judgment of October 10, 2018 (6B_1314 / 2016, 6B_1318 / 2016) Rudolf Elmer: No violation of banking secrecy. In: Press release from the Federal Supreme Court. Retrieved November 4, 2018 .
  47. Stolen bank data ( Memento of the original from March 25, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Video in: Rundschau from April 2, 2008; from minute 8:14 @1@ 2Template: Webachiv / IABot / www.srf.ch
  48. The second trick . In: Balance . 2/2011 of January 28, 2011, p. 11.
  49. ^ Elmer and the Uyghur Bank of Switzerland. In: Tages-Anzeiger . January 22, 2011.
  50. ^ Carlos Hanimann: Hostage of banking secrecy In: WOZ Die Wochenzeitung . July 7, 2011.
  51. Jack Blum. ( Memento of July 2, 2010 in the Internet Archive ) In: Center for International Studies and Diplomacy, archive version 2010.
  52. ^ Karla Adam: Former Swiss banker hands over offshore banking details to WikiLeaks. In: Washington Post . January 17, 2011.
  53. Isles of plenty. In: The Guardian . February 13, 2009.
  54. ^ Yvonne Kunz, Christof Moser: The Zurich justice secret. In: WOZ The weekly newspaper . 4/2011 of January 20, 2011.
  55. Rudolf Elmer's complaint against “Weltwoche” partially approved. on: blick.ch , July 12, 2012.
  56. No. 29/2012: Duty to truth and correction / hearing / identification / human dignity (Elmer c. "Weltwoche") ( Memento of the original from March 20, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Statement by the Swiss Press Council of May 31, 2012. @1@ 2Template: Webachiv / IABot / presserat.ch
  57. Bürohr . In: Sunday newspaper . March 3, 2018, p. 38 .
  58. ^ "Weltwoche" loses against ex-banker Elmer . In: tagesanzeiger.ch/ . ( tagesanzeiger.ch [accessed on September 19, 2018]).
  59. ^ "Weltwoche" pulls out against Elmer Stiefel - Handelszeitung . In: Handelszeitung . ( handelszeitung.ch [accessed on September 19, 2018]).
  60. Third setback for WELTWOCHE against Rudolf Elmer (published judgment in WW, 9.2018) . In: www.rudolfelmer.com . March 7, 2018 ( rudolfelmer.com [accessed September 19, 2018]).