On Wednesday, S. returns to the stage in the Bonn district court, the large room 0.11, in which legal history is written. S. is one of the most important prosecution witnesses for the Cologne public prosecutor’s office in one of the largest cases of systematic tax evasion ever investigated, the scandal surrounding tax-driven stock transactions, known as Cum-Ex. If S. now tells again what he knows about the involvement of the Hamburg private bank Warburg in the scandal and what inglorious role he played in it, it should be peaceful. The accused, once the managing director of a Warburg subsidiary, made a surprising confession last week.
On December 3, 2020 it was very different. S. then appeared for the second time as a witness at the Bonn Regional Court, in the second Cum-Ex trial negotiated there. A retired General Plenipotentiary from Warburg sat in the dock. What happened that day right before S.’s appearance was one of the most unusual events in the Cum-Ex tax scandal and was not publicly known until now. Immediately before the testimony of the prosecution witness S., one of his two lawyers had received mail. Only two pages, but highly explosive: S. was threatened with a Warburg lawsuit worth millions.
If one wanted to accuse the private bank of evil, then this could be interpreted as an attempt to exert influence or even intimidation. But maybe it was just pure coincidence. The strangest stories are still written by real life. In any case, it was clear on that December 3rd that S. had to prepare for a hard day. The defense of the accused ex-plenipotentiary von Warburg fiercely defended himself against the accusation that her client had deliberately participated in tax-damaging deals. The defense cross-examined S. and tried to cast doubt on his credibility.
The mail went to the two defenders
The pressure was high. And it was actually much higher: Just one day earlier, on December 2, lawyers had sent out an explosive letter on behalf of Warburg. The mail went to witness S.’s two defense attorneys, Alfred Dierlamm and Tido Park. At that time, Warburg was confronted with tax reclaims from the Hamburg tax authorities in the amount of 157.9 million euros plus interest. In the first cum-ex process, the Bonn Regional Court also ordered Warburg to pay back 176.6 million euros in tax refunds from cum-ex transactions that had been wrongly received. Both cases involved the same money.
Warburg tried his best to avert the repayment to the tax office. But in the event that the tax authorities remain firm, the bank is preparing claims for damages. This was also directed against the witness for the prosecution, S., whom the bank assumed to be jointly responsible for the cum-ex deals objected to. Warburg had S.’s defense attorneys informed through a law firm that there could be financial claims against their clients. S. should please explain by December 11, 2020 that he is not claiming a statute of limitations. It is about “avoiding lengthy and costly legal disputes”.
Tedious, expensive, that sounds tough. The letter was sent out by courier on December 2 and reached the Dortmund office of Tido Park, one of S.’s two lawyers, at 8:40 a.m. on December 3. The law firm immediately emailed the two pages to Park, who was already in Bonn. Immediately before the trial began, Park was able to read what his client S. was threatened with and confer with his colleague Dierlamm. The two lawyers are among the most well-known white-collar criminal defense attorneys in the republic. With clients like VW boss Herbert Diess, who looked after the park in the emissions affair; or ex-Wirecard boss Markus Braun, who Dierlamm takes care of.
Park and Dierlamm have already experienced a lot, but this was new even for them. They agreed not to inform S. about the letter until after he had appeared as a witness against Warburg. That’s how it happened. S. was able to testify freely and unencumbered in court because he was unaware of the threat of Warburg’s claim in the millions. On December 2, 2020, Hamburger Bank also asked other parties involved in cum-ex deals not to assert a statute of limitations against possible Warburg claims. So this was not a special mail for the witness S. But the timing was remarkable. And the bank carried out its threat: a little later, Warburg sued witness S. and others for damages. The procedure is still ongoing.