On 5 April, Hervé Daniel Marcel Falciani, the French-Italian computer scientist and former bank employee accused of disclosing the names of more than 130,000 names of potential tax evaders who were clients of the Swiss subsidiary of HSBC Bank, was arrested in Madrid in a document known as the ‘Falciani List’, which specifically included the identity of 659 alleged Spanish tax evaders.
Hervé Falciani had been wanted by the Spanish police since the international arrest warrant issued by Switzerland arrived in Spain on 19 March 2018.
The day after his arrest, the Central Examining Court No. 6 of Madrid granted Falciani provisional release without bail pending extradition proceedings, although the judge imposed certain precautionary measures such as weekly appearances, daily surveillance of his home by the local police, a ban on leaving the town where he lives and, finally, the withdrawal of his passport and a ban on leaving the national territory without judicial authorisation. You can download the aforementioned Provisional Release Order by clicking on the link at the bottom of this news item.
Hervé Falciani was sentenced in Switzerland ‘in absentia’ to a 5-year prison sentence by the Swiss Federal Criminal Court in the trial that took place in 2015, for a crime of industrial espionage (as defined in the Swiss Criminal Code), although he was acquitted for the crime of violation of banking secrecy of which he was also accused.
Now Switzerland, by virtue of the International Arrest Warrant issued on 19 March, is seeking the extradition of Hervé Falciani to that country to serve his sentence and it will be the Audiencia Nacional, specifically the Central Examining Court no. 6 mentioned above, which will process the extradition process, governed in this case by the European Convention on Extradition of 13 December 1957, applicable between Spain and Switzerland, and – in addition – by Law 4/1985 on Passive Extradition of 21 March 1985.
Following the decision of the Central Examining Court No. 6 that Falciani should await the final decision on his extradition at liberty, the next step to be taken by the Court is to contact the Swiss authorities so that they can send the requested person’s file and formalise his request. The European Convention on Extradition establishes a deadline of 40 days for such documentation to be sent to our country (Art. 16.4).
Once the aforementioned request is received together with the appropriate documentation, the Spanish Ministry of Justice and the Spanish Government will have another 40 days to decide whether or not to continue with the extradition procedure in judicial proceedings.
The decision adopted by the Government in one direction or the other will be communicated to the Central Examining Court without the right to appeal (art. 6 of Law 4/1985 on Passive Extradition).
In the event that the Government agrees to continue with the extradition process, the file will be sent to the Central Investigating Court (in accordance with Art. 11 of the Passive Extradition Act) and the investigating judge will summon the requested person, assisted by his lawyer, and the Public Prosecutor to a hearing (Art. 12 of the same Act). If, at this hearing, the requested person opposes extradition, the court will refer the case to the Criminal Division of the Audiencia Nacional, which will take a decision, in the form of an order, on whether or not the extradition is admissible.
However, even if the Criminal Division of the National High Court declares the extradition to be admissible, it will ultimately be the Government that will decide whether to hand over the person sought or refuse it, as the judicial decision is not binding on the Government, which may refuse it in the exercise of national sovereignty, in accordance with the principle of reciprocity or for reasons of security, public order or other essential interests for Spain, without any appeal being possible against the Government’s decision (art. 6 of Law 4/1985 on Passive Extradition).
At the request of Switzerland, Hervé Falciani had already been arrested in Barcelona on a previous occasion, in July 2012, and was imprisoned by decision of the Audiencia Nacional and provisionally released in December of the same year. In May 2013, the Audiencia Nacional rejected Falciani’s extradition to Switzerland, on the grounds that Falciani denounced ‘activities suspected of illegality and even constituting criminal offences that are in no way susceptible to legitimate protection’ and furthermore that in Spanish law ‘there is no specific criminal protection of banking secrecy as such, let alone treating its violation as a mere formal offence’.
According to Falciani’s defence, the extradition of his client has already been decided negatively by the Spanish courts in 2013 and to retry this case on the same grounds would violate the principle of ‘non bis in idem’ and should be considered ‘res judicata’.
If the Audiencia Nacional accepts the thesis maintained by Falciani’s defence, it could again reject his extradition to Switzerland.
