Lawyer S., who lives in Switzerland, is a wiry man. In court, he speaks ready for the press – and has done so more and more often in recent years. Because once upon a time, S. and his then Frankfurt law firm participated in dirty share deals at the expense of the state treasury. Later, when investigations started against him and hit him hard, he then confessed, unpacked and also told his story in court. Over the years, he has earned the status of a key witness and has so far been spared an indictment.
But now the 50-year-old is threatened with great adversity in the middle of his new life. Ironically, in the next, largest and most exciting Cum-Ex trial so far, the key witness S. could come to court. Because the court would like to have him as a so-called confiscation party. Put simply, this means that the chamber wants to check whether his ex-law firm partner Hanno Berger, who will be charged in court, and S. made profits themselves from the allegedly illegal deals. She can order the confiscation of this amount, in this case a total of around 27 million euros. The special legal construction also has a side effect: S. would not be charged, but would be in court.
Standing in court with Berger, at least on paper, that would probably be the purest horror for S. For a long time, Berger was considered a kind of foster father. The break with him was more than difficult, as he described in court. S. could be represented by his lawyers. In court, however, it should be welcome if he shows himself. So what to do?
“He regrets and sincerely regrets having been involved in a variety of cum-ex deals at the time.”
The key witness had his defense attorneys Alfred Dierlamm and Tido Park write a letter to the Bonn Regional Court that seemed at times sentimental. “He regrets and sincerely regrets having participated in a variety of cum-ex deals at the time,” says the letter about S. He can no longer undo that. But he is making “massive educational contributions” and is also willing to pay back the proceeds of the crime.
In the same letter, the lawyers state that their client will refrain from objecting to confiscation. This legal trick allows him not to have to appear in court. But it also means that S. cannot say anything about confiscation in court. S. would rather pay around 14 million euros without a hearing than be a party to the trial against his former Frankfurt law firm partner Hanno Berger for months, if not years. The Chamber of the Bonn Regional Court must decide whether he actually has to pay.
Berger is considered the “Spiritus Rector”, the driving force behind numerous cum-ex deals. The accused Berger, who rejects all allegations, and S., who has admitted everything, have long had a heartfelt dislike for one another. Berger fled to Switzerland almost ten years ago, was recently extradited and is now in custody. While S. is free and continues to travel a lot in his job.
It is about more than 27 million euros
In the indictment before the Bonn Regional Court, Berger is accused of tax evasion in particularly serious cases with damage to the state treasury totaling 279 million euros. As a reward for his actions, he, together with law firm partner S., collected more than 27 million euros. Exactly it is 27 333 998 euros. This amount is what the so-called confiscation is about, which, according to the court’s considerations, could not only take place with Berger, but also with his former partner S. And that’s because, according to the court, both cashed in.
Berger, who is seeking an acquittal, also denies that. S., on the other hand, denies nothing. In their letter to the court, S.’s two defense attorneys wrote that his consent to the confiscation of the proceeds of the crime was a “blank check” and at the same time warned of a curious situation. Because if no assets were confiscated from Hanno Berger, key witness S. might have to pay for the full 27 million euros as joint debtor. That would “contradict massively the sense of justice” if Berger could “thwart” a collection of his share in court and S. would then have to pay alone. The court should take this into account “in an appropriate manner,” write the lawyers.
In plain language: S. would already pay 13,666,999 euros. But not the 27,333,998 euros. Both of which would probably only be the beginning. At the court in Bonn, it was already discussed that S. is said to have collected much more from Cum-Ex. And that the repayment, which has so far allegedly failed due to bureaucratic obstacles, is still pending.