Whistleblower Ruedi Elmer vs. the Swiss ‘Justice’ System

We’ve regularly covered the battles of whistleblower Rudolf Elmer against the Swiss “justice” system. As we’ve said before, and as has so often been the case with those brave enough to risk all to challenge injustice and corruption, the bank was the criminal, not Rudolf Elmer. He wrote a guest blog for us here on how Switzerland corrupted its courts to nail him. We’d like to bring you up to date on his heroic struggles.

Regular readers will recall that on August 23rd, 2016 Rudolf Elmer was acquitted of violating Swiss Bank Secrecy, because he didn’t actually have a Swiss employment contract with the Julius Baer Bank of Zurich while working for them based in the Cayman Islands – an important fact he’d been pointing out since 2005, as his prosecution proceeded through the Swiss courts, using Swiss secrecy laws.

After making the public anouncement of the verdict, the Head Judge Peter Marti said “now, I do have some personal remarks: You are not a whistleblower, you are an ordinary criminal”. These remarks were clearly beyond his proper role as a judge in the case, which did not concern whistleblowing, but bank secrecy. Elmer therefore boldly brought an action of defamation against the judge.

Unfortunately, for such a case to proceed in Switzerland requires approval of the cantonal government, in this case the Executive Committee of the State of Zurich, which turned the complaint down. This is unsurprising, since the majority of this Executive Committee were members of the Volkspartei (Swiss Peoples Party), and two of them served at the very same time in the Parliament as the Head Judge Peter Marti (1996 – 2000).

Undaunted, Elmer took the case to the Swiss Federal Court. Now this Court has also turned down the complaint. Its reasons, essentially, were that it was not shown that the state of Zurich had acted in bad faith or outside the scope of its powers.

At the same time, it’s interesting that the Swiss Federal Court decided not to charge any costs to Rudolf Elmer due to his complaint. This is highly unusual in Switzerland, and it perhaps shows that the Judges of the Swiss Federal Court didn’t really feel comfortable with the outcome.

Last year‘s acquittal of Elmer was appealed by the prosecution, and also by the defence on a separate point, so the final decision of the appeals court is still pending. And so, Elmer continues his battles in the Swiss justice system, challenging it to show whether it can uphold true rule of law and protect whistleblowers, or whether it opts to be an Alpine ‘pirate island,’ protecting its delinquent private banks.

Here’s the trailer of a film which was made about Rudolf Elmer’s struggles:

It’s worth pointing out again that whistleblowers are occupying a vital, and dangerous place, right on the tax and transparency frontline. We welcome any decent lawmaking to protect them.

The UN has made recommendations to enact legislation to create a charter on the rights of whistleblowers and adopt a “protected disclosure defence” to protect whistleblowers and witnesses. The United Nations Independent Expert on the Promotion of a Democratic and Equitable International Order Alfred de Zayas described whistleblowers as human rights defenders in a press conference fairly recently. A strong push for robust law making is absolutely essential, and long overdue.