Hanno Berger, one of the key figures in the billion-dollar cum-ex tax scandal, wants to avoid years in prison for procedural errors. In the appeal filed at the Federal Court of Justice (BGH), his lawyer Jürgen Graf argues that the guilty verdicts of the German courts against Berger are incompatible with the Swiss extradition decision from 2021. If that were actually the case, the judgments of the regional courts in Bonn and Wiesbaden would no longer apply Berger could leave the country, Graf told the German Press Agency. In addition to this extradition aspect, the defense attorney also raises other substantive points in order to be successful before the BGH. To date, the Federal Court of Justice has always confirmed all cum-ex judgments submitted to it.
Berger is the most prominent figure in the tax evasion scandal involving cum-ex stock deals. The now 72-year-old fled the German judiciary to Switzerland at the end of 2012 and evaded trial in Germany for years. In February 2022 he was transferred to the Federal Republic, where he was sentenced to eight years in prison at the Bonn Regional Court and eight years and three months in prison at the Wiesbaden Regional Court for serious tax evasion. In the Bonn proceedings, the tax damage caused by Berger’s actions was estimated at 276 million euros and in Wiesbaden at 113 million euros.
The two verdicts against Berger can subsequently be added together to form a total sentence. He then faces up to 15 years in prison. For this to happen, the judgments must be legally binding. Berger is in the Frankfurt-Preungesheim correctional facility and, according to his lawyer, he has health problems.
In his argument, Graf refers to the “specialty principle”, according to which a conviction may only take place within the framework set out in the extradition notice. This is exactly what Graf, who used to be a BGH judge himself and was most recently deputy chairman of the 1st Criminal Senate, doubts. The allegations of deception and bad faith mentioned in the decision against Switzerland, which were decisive for the extradition as characteristics of “common law fraud”, do not even appear in the Bonn judgment. “It is therefore questionable whether the Swiss extradition order was complied with.”
The Wiesbaden judgment is not yet available in writing. Tax evasion is not a reason for extradition in Switzerland, but common law fraud – i.e. fraud against the state – is. If, in retrospect, it turns out that the German judgments were only about tax evasion and not about the characteristics of fraud under common law, the extradition should never have taken place, argues Graf. Whether he is right about this is completely unclear. It is still unclear when the BGH will decide on the appeal against Berger’s conviction.