“I still have faith in the Spanish justice system, but not that of Switzerland,” said Falciani who was sentenced in absentia to five years in prison by a Swiss court in 2015 for leaking information allegedly showing HSBC’s private banking arm in Switzerland helped clients evade billions of dollars in taxes.
Speaking via his lawyer – Spanish super-judge Baltasar Garzón – Falciani was unrepentant.
He would “continue working to fight corruption via the internet where it is necessary,” Falciani was quoted as saying in Spanish daily El País.
The French-Italian national has been stripped of his passport while Spanish High Court judges review an extradition request from Swiss authorities.
Hero or villain?
Falciani has been hailed as a hero in some quarters but Swiss prosecutors have pursued him relentlessly for data theft and argued he tried to “cash in” by selling his client list – claims denied by Falciani who said he had no financial motives.
The 46-year-old was previously arrested in Spain in July 2012 but the Spanish High Court ended up refusing his extradition saying Falciani’s actions were not crimes in Spain and that Switzerland’s agenda was “political and cannot serve as the basis for an extradition request”.
The Spanish court's ruling was very critical towards HSBC, accusing it of “seriously irregular” behaviour. The court also defended Falciani, “who thanks to his collaboration allowed information to be handed over to various authorities in various states including Spain”, according to French news agency AFP.
In November last year, HSBC Private Bank agreed to pay €300 million euros ($352 million) to avoid trial in France on charges of enabling tax fraud.
Switzerland is still struggling to clean up its image as a haven for tax cheats.
The OECD’s Global Forum, which “address the risks to tax compliance posed by non-cooperative jurisdictions” has criticised Switzerland for its inflexibility in cases where it believes information requests on suspected tax cheats are “solely based on stolen data”.
“In such cases, its [Switzerland’s] policy takes no account of the circumstances in which the requesting jurisdiction came into possession of the information,” the OECD said in a 2016 review of Switzerland’s progress on exchange of information for tax purposes.
This is a reference to the fact that while Switzerland receives requests from foreign countries for tax information based on data stolen by Falciani, many of those countries were handed that data by France and did not obtain it via theft.
A prisoner exchange?
The decision to “dust off” the Falciani case is not a popular one among Spanish High Court sources quoted by El País who said there was a “judicial agreement” not to extradite him given the assistance he had provided to Spanish authorities, and who linked the arrest with the crisis in Catalonia.
Two Catalan separatists have fled to Switzerland seeking refuge from Spanish charges of rebellion over their involvement in the Catalan independence push. This has given rise to speculation of a possible tit-for-tat arrangement involving the extradition of Falciani for those of the two Catalan nationalists.