Post v.8

One element of the Liechtenstein tax "evasion" kerfuffle confounds; that of the German BND's acquistion of the personal financial information for hundreds of German citizens.

Depending on one's outlook about the entire situation: the BND either innocently "purchased" the information, or "bribed" a bank official to provide the information. What do the facts conclude?

A) The Liechtenstein bank involved in the story, Liechtenstein Global Trust (LGT), is a private financial institution owned by the Prince of Liechtenstein Foundation.

B) The Prince of Liechtenstein Foundation is a collection of companies owned by the Princely House of Liechtenstein.

C) The Princely House of Liechtenstein is currently headed by Hans-Adam, II. Accordingly the Reigning Prince:

The Reigning Prince is the Head of State. He may only exercise his right to state authority in accordance with the provisions of the constitution and of other laws.

He represents the state vis-à-vis foreign states. He signs international treaties either in person or delegates this function to a plenipotentiary. Some treaties under international law only become valid when they have been ratified by parliament.

The Reigning Prince's involvement in legislation consists in a right to take initiatives in the form of government bills and in the right to sanction the laws on which their validity depends.

The Reigning Prince has the power to enact princely decrees. With one such decree, for instance, he convenes parliament. Emergency decrees come within the scope of princely decrees and through these the Reigning Prince may, in compelling cases, take measures for the security and welfare of the state without parliament’s involvement, but with the countersignature of the Head of Government.

The Reigning Prince has the right to convene and to prorogue parliament and, for serious reasons, to adjourn it for three months or to dissolve it.

On the basis of names put forward by parliament the Reigning Prince nominates the government and the district judges, the high court judges, the judges of the Supreme Court, and the presidents and their deputies of the Constitutional Court and of the Administrative Court of Appeal.

The Reigning Prince's other authorities include exercising the right of reprieve and the rights to mitigate and commute punishments that have been imposed with legal force, and the abolition - i.e. the dismissal - of investigations that have been initiated. Jurisdiction in its entirety is exercised on behalf of the Reigning Prince by sworn judges. All judgements are issued in the name of the Reigning Prince.

Based on the facts so far one can rightfully conclude the Reigning Prince of Liechtenstein has considerable influence over the government (he is the head of state among other things) and LGT via the Prince of Liechtenstein Foundation.

What is a bribe? According to the OECD's Glossary of International Criminal Standards, a bribe is:

Article 1.1: It is an offence to offer, promise or give "any undue pecuniary or other advantage" in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business. (OECD Convention)

What about the German/BND actions?

Article 1.1: It is an offence to offer, promise or give any undue pecuniary or other advantage to a foreign public official "in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business."

Article 1.4.c: For the purpose of this Convention "act or refrain from acting in relation to the performance of official duties" includes any use of the public official’s position, whether or not within the official’s authorised competence. (OECD Convention)

Who are these "public officials" ? The OECD Glossary does not define "public official", but the Glossary does note:

The definition of a national public official is very broad and should include any person who:

Performs a public function for a public enterprise. A public enterprise should include any enterprise in which the government holds a majority stake, as well as those over which a government may exercise a dominant influence directly or indirectly. It should also include an enterprise that performs a public function and which does not operate on a normal commercial basis in the relevant market, i.e., not on a basis which is substantially equivalent to that of a private enterprise, without preferential subsidies or other privileges. The definition should also include executives, managers and employees;

Does an official arm of a foreign government paying an employee (arguably a "public official" given the circumstances) of a privately held bank (arguably a "public enterprise" in which a powerful head of state holds a majority stake and/or may excercise dominant influence in a direct or indirect manner) to act in a manner contrary to the employee's duties and obligations constitute bribery?

Do the means justify the ends? If so; good-bye to due process, hello to anything goes...

An easy test, would you as an individual be comfortable with any government being able to "obtain" any of your personal financial information by any means necessary?

Update: Fabulous, the British government is now on board with the Germans as well. If/when similar types of information shows up in the hands of the Russians, Chinese, no squirming if you approve of these sorts of tactics.

A really easy test for those who approve of the British and German governmental tactics in "obtaining" this type of personal financial information on individuals: Would your reaction of "stick it to the man" and "right on brothers/sisters" be the same if "BushCo" was the one paying the tab for the very same information?