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- Swiss Secrecy: Not A Legend
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- Swiss banking is often identified in America with
- banking secrecy. Popular media stories have created
- two contradictory pictures: that Swiss secrecy hinders
- law enforcement officers from prosecuting criminals,
- while others claim that Swiss secrecy does not exist
- anymore and is as full of holes as a Swiss cheese.
- Neither is true.
- The basic position in Swiss civil law is that the
- information concerning a customer and the customer's
- financial dealings is protected as part of the
- individual's legal right to privacy. In Switzerland,
- this has been made part of Article 28 of the Swiss
- Civil Code, and not only protects the information, but
- makes the person violating the secrecy liable to pay
- damages to the customer. In addition, the banking law
- makes it a criminal offense in Switzerland for a banker
- to divulge information about a customer in violation of
- the law, punishable by fine or imprisonment. Both the
- bank and the bank employee may be subject to various
- penalties if a violation occurs.
- A bank can only disclose information when
- authorized to do so under existing statutory provisions
- or by a Swiss court order, which must be founded on
- law. Secrecy is interpreted so broadly that it is
- illegal for a bank to say whether or not a person is a
- customer, since if the bank failed to do so it would be
- implying that the person was a customer.
- The right of secrecy is a right belonging to the
- customer, not the bank. It is the customer's privacy
- that is protected by law. The customer can waive the
- secrecy, but the bank cannot. For example, the
- customer may waive secrecy and ask the bank to give a
- credit reference to a specific creditor. But such a
- waiver is only valid if the customer acts voluntarily
- and not under duress. Therefore, waivers that were
- signed pursuant to foreign court orders compelling a
- customer to sign a waiver may well be invalid. A
- financial institution cannot ask the government for an
- order waiving secrecy. Only the customer can waive the
- secrecy.
- Contrary to an opinion current in America, Swiss
- secrecy is not absolute. It can be overridden by
- statutory provisions which compel the giving of
- information.
- Such rules requiring disclosure of information --
- usually with a limited scope -- can be found in Swiss
- inheritance law (you really wouldn't want your
- legitimate heir going into the insurance company with
- your death certificate to be told they can't tell him
- anything), in enforcement of judgments from creditors,
- in bankruptcy or in divorce.
- The most widely known limitation on secrecy is in
- treaties concerning Swiss cooperation in foreign
- criminal matters.
- In a criminal investigation conducted in
- Switzerland, of a Swiss crime committed by a Swiss
- citizen, secrecy can be lifted by court order. The
- treaties extend this possibility to foreign crimes by
- foreign citizens in foreign investigations, but only in
- the limited circumstances spelled out in the treaties.
- Before a foreign legal assistance request for
- Swiss financial records can be honored the following
- conditions must be met:
- 1) Compulsory disclosure is only possible if the
- offense that is being prosecuted is punishable as a
- criminal offense in both countries (the requesting
- state and Switzerland).
- 2) In tax cases assistance is available to
- foreign prosecutors only if the investigated violation
- of foreign tax laws would be qualified under Swiss law
- as a tax fraud and not merely as tax evasion. Tax
- evasion is simply the failure to declare income or
- assets for taxation. Tax fraud is distinguished by the
- fact that "fraudulent conduct" is involved. Normally
- "fraudulent conduct" can only be assumed if forged
- documents are used.
- There is a special provision of the Swiss-United
- States Treaty on Mutual Assistance in Criminal Matters
- that provides Swiss legal assistance to U. S.
- prosecutors even in tax evasion cases if they are
- conducting an investigation against an organized crime
- group.
- 3) As a general rule, the information obtained in
- Switzerland through a legal assistance procedure may
- not be used for investigative purposes nor be
- introduced into evidence in the requesting state in any
- proceeding relating to an offense other than the
- offense for which assistance has been granted.
- It must be emphasized that foreign authorities or
- foreign courts cannot directly ask a Swiss financial
- institution for information. Even in cases in which
- legal assistance can be granted and therefore secrecy
- is lifted, only a Swiss court order - which in these
- cases is based upon a foreign request for legal
- assistance - can validly lift secrecy.
- Considering this, it can be said that secrecy is
- strict and is only put aside in case clearly defined by
- Swiss law and pursuant to Swiss rules. Secrecy is,
- however, not absolute and does therefore not protect
- criminals.
- Switzerland has long served as a magnet for the
- money of wealthy foreigners who perceive the world as
- buffeted by over-taxation, over-regulation and
- political turmoil. They are attracted, of course, by
- the confidentiality and discretion that have been a
- hallmark of Swiss bankers since the French Revolution,
- when they offered financial refuge to French
- aristocrats. In 1934 secrecy was enshrined into law.
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