The accused Hanno Berger writhes

Bonn, Dusseldorf Actually, only documents should be read out this morning in session room 011 of the Bonn Regional Court. But before that, Martin Kretschmer, one of the defenders of the accused Hanno Berger, spoke up: “Excuse me, Dr. Berger would like to make one more statement.”

The presiding judge, Roland Zickler, gives Berger the floor. He has already moved forward restlessly in his chair, clears his throat, then begins. “I would like to clarify something,” says the 71-year-old. “In case this wasn’t made very clear yesterday, expressis verbis.”

The case may well be true. Berger is accused of serious tax evasion. As a tax attorney, he advised on so-called cum-ex transactions for the Hamburg bank MM Warburg. Those involved had taxes refunded that they had not paid at all. The tax loss is 278 million euros.

Berger was supposed to make a confession on Monday, but lost himself in the approximate for long stretches. The defendant stayed in the subjunctive, spoke of “one had” and “we should”. Berger shifted the responsibility to others, referred to a supposedly unclear legal situation. When he finished his testimony, there was no trace of remorse.

Then his main defender Richard Beyer rushed to limit the damage. In front of the courtroom, Beyer told the Handelsblatt that Berger had made “a frank and open confession” that he had accompanied his clients’ cum-ex deals “with conditional intent” from 2009. Beyer: “I don’t think you can expect more from him.”

“You just kept going”

However, what the court expects and may expect is not a matter for the defendant’s defense counsel. Only the statements made by the accused in the courtroom can be used legally, not his lawyer’s talks with the press.

Berger begins his second attempt at confession in a similar way to the first: with a letter from the Federal Ministry of Finance. “The BMF letter from May 2009 was a turning point that I had to revise my legal position somewhat,” says Berger. “Well, it was probably the case that this BMF letter led to people saying to themselves that they probably have to see things differently. But you just kept going, you pushed aside the concerns in your head.”

Again Berger changed from “I” to “man”. Judge Zickler intervened, asking Berger about his personal knowledge of the possible illegality of cum-ex deals: “Do I understand correctly that this is an ex-ante understanding?”

The Latin term plays a crucial role in the judiciary. What is meant is a knowledge of criminal liability before the act. The counterpart is the term “ex post”, i.e. afterwards. If Berger admits that he knew before the controversial cum-ex deals that they went against the will of the legislature, his position worsens. Berger looks up, nods slightly and says: “This understanding was there at least rudimentarily.”

That’s enough for Zickler. The judge said on Monday that he had questions about Berger’s testimony. “We tried to get into what we heard yesterday,” he says now. A little clarification has now been done. Zickler: “A little is still open.”

On Monday, Zickler reprimanded the accused because Berger acted as if he had to explain everything to the court again. “I resist the portrayal as if the court had heard of Cum-Ex for the first time today,” said Zickler. And indeed: This is already Zickler’s fourth cum-ex process.

All three previously dealt with the same cum-ex deals at Hamburg’s Warburg Bank, for which Berger is now also responsible. All three cases before Berger ended in guilty verdicts.

Zickler is now getting down to business with Berger. The judge says he doesn’t quite understand why the defendant ties his testimony so closely to the letter from 2009. The highest German courts have already ruled that cum-ex deals have always been punishable – even before 2009. Zickler himself has imposed prison sentences for deals from 2007.

Important testimonies are pending

The judge therefore looks ahead. Important witnesses are pending in the coming weeks. They should testify to transactions before 2009. Zickler says he doesn’t know what the witnesses will say in court. But he knew what they said to the investigators. “And then we get into a situation in which many, many questions arise.”

Zickler now spells out his situation for Berger. If the accused admits culpable behavior only for the period after 2009, you have to go through his behavior for the time before that step by step. “It’s not good if you follow along and explain things that you could have said before,” says Zickler. Then there could be points of contact for “that something was built to hide something else”.

This classification by the judge does not bode well for Berger. The accused faces 15 years in prison. With his confession he wants to reduce his sentence. If the court now interprets his words as an attempt to hide part of the crime, Berger’s efforts would boomerang.

A confession wouldn’t be enough either. A week ago, Zickler pointed out to the accused that insight into the crime and remorse were a start, but only that. Berger’s help in alleviating the damage caused to the taxpayer was decisive for the court. Berger is said to have earned 13.6 million euros with Warburg Bank’s cum-ex transactions. The court expects a refund.

“As far as the repayment is concerned, you did not comment yesterday,” says Zickler. “I’m assuming there’s something else coming up?” Berger is silent. His lawyer replies: “Yes, there’s something else to come.”

But not today. Instead, the court read documents for hours. Emails from Berger that shed light on how he got involved at the time to secure tax refunds. Invoices from Berger. An article in which Berger has his say as an expert. It comes from the “Spiegel”, published in August 2009 – three months after the letter from the Federal Ministry of Finance, which, according to Berger, could have given rise to an insight into the crime.

There is nothing about this in the article. “It’s unconstitutional,” Berger complained about the Ministry of Finance’s attempt to use new regulations to prevent particularly wealthy citizens from paying particularly little taxes. “We live in a banana republic in terms of tax law.”

The court spares any comment on Berger’s statements. In the end, the accused has to go back to the prisoner transporter and then to prison. After nine years on the run, the former star lawyer has now been behind bars for thirteen months. The next day of the hearing is next Monday.

More: Cum-Ex process Judge to Hanno Berger: “Then pay the stuff back!”

Handelsblatt Crime: The cum-ex confession of the accused Hanno Berger