It is late morning in the large courtroom at the Zurich Higher Court when the defendants and their defense lawyers lose all their tension and show emotions for a moment.

Eckart Seith, his Swiss defense lawyer Matthias Brunner and the former employees of Bank Sarasin who were co-accused of industrial espionage fall into each other's arms.

Judge Rolf Naef, chairman of the first criminal chamber, has just informed those involved in the process that he has declared the former investigating public prosecutor Peter Giger to be biased.

Marcus Jung

Editor in business.

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The results of his investigation into allegations of industrial espionage and violations of Swiss banking laws can no longer be used.

That means: The indictment against Seith in the most prominent “cum-ex” criminal case in Switzerland can no longer be upheld.

Three and a half years in prison, which threatened him as a whistleblower (whistleblower) to German financial and law enforcement authorities, are very likely off the table.

Process is about to be terminated

With this turn in the years of heated proceedings led by the Zurich public prosecutor and the defendant Seith was not to be expected until the first applications on Wednesday morning. Since 2016, five requests for bias against the prosecutor, even before the federal court in Lausanne, had failed. This time Brunner managed to convince the court that the investigator was not impartial, harbored feelings of hatred against Seith and even sided with Bank Sarasin. Judge Naef then broke off the hearing. According to the notification of the higher court, all those involved in the process have until tomorrow, Thursday, to formulate their claims for costs and compensation. The court wants to keep the possible referral back to the first instance open.

In April 2019, the Zurich District Court acquitted Seith of the charge of industrial espionage, but imposed a suspended fine on him for inciting a violation of the banking law. Both the public prosecutor's office and the defendants took action against this judgment. The Stuttgart lawyer wanted to clarify very fundamental questions. “This is clearly a political process. The Swiss judiciary wants to criminalize the passing on of important evidence by means of which criminal cum-ex transactions could be prevented ”, explained Seith in an interview with the FAZ

In fact, there are big differences in how the neighboring countries Germany and Switzerland deal with the clarification of the “cum-ex” share transactions.

According to the latest figures from the Finanzwende citizens' movement, prosecutors in Germany are investigating more than 1,350 suspects in dozens of complexes.

In the summer, the Federal Court of Justice declared the stock group transactions around the dividend cut-off date to be criminal as serious tax evasion.

In Switzerland, where Bank J. Safra Sarasin (formerly Bank Sarasin) in particular participated in the hustle and bustle by selling high-risk Luxembourg Sheridan funds, there are no criminal investigations.

Tax evasion is punished as an administrative offense, only the case of investment fraud comes up for trial in the criminal courts.

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