One of the first questions that injured parties and victims of fraud ask themselves in the event of a claim is: Where is the money? The search for the answer to this question leads the victims again and again to Liechtenstein. But even when the first hurdles have been overcome and a clue exists as to where the money could have disappeared, professional and client secrets of trustees or banks can pose further challenges for the victims.
The central legal basis of banking secrecy is Art. 14 BankG, which states the following:
1) The members of the executive bodies of banks and their employees as well as other persons working for such banks are obliged to maintain secrecy with regard to facts which have been entrusted or made accessible to them on the basis of business relations with customers. The obligation of secrecy shall apply for an unlimited period of time.
2) The statutory provisions on the duty to testify and provide information to the criminal courts, supervisory bodies and the FIU unit as well as the provisions on cooperation with the FIU unit and with other supervisory authorities remain reserved.
3) The provisions under paragraphs 1 and 2 shall apply mutatis mutandis to the members of the bodies of investment firms and their employees and other persons working for such investment firms.
Extent of banking secrecy
Banking secrecy refers to customer-related facts and assessments which have become known to a bank due to or in the course of the business relationship with its customers. It is necessary for this purpose that there is an internal connection between the bank's knowledge of the secret and the existence of the business relationship. Not only financial information about customers shall be subject to secrecy protection. Rather, banking secrecy also covers the customer characteristics per se.
While the banking secrecy on the part of the party bearing the secret (the bank) leads to a legal obligation of comprehensive secrecy vis-à-vis third parties, it also constitutes a right of the customer to secrecy and to information. Banking secrecy is primarily a right of the client and an obligation of the bank.
Banking secrecy in litigation:
The bank is generally bound to banking secrecy even in court proceedings. This already follows from the right to refuse to testify, according to which a witness statement can be refused if this would lead to a violation of banking secrecy. Unlike in criminal proceedings, in civil proceedings the bank is not obliged to testify or provide information.
A banker can rely on his officially recognized duty of confidentiality both as a witness and as a party to a court case. The banker must remain silent in the event that he has not been validly released from his duty of confidentiality. In this case, the duty to refuse to testify applies to him in principle. This makes it clear that a violation of banking secrecy can also be due to the communication of facts protected by secrecy to persons under an obligation of secrecy.
However, due to a lack of absolute validity, a breakthrough of banking secrecy is permissible in some cases. A right to disclosure exists in any case with the consent of the customer. It is therefore possible for the customer to grant a disclosure authorization to the bank.
If no authorization is granted, the justification for the disclosure of facts protected by banking secrecy may, in the absence of absolute validity, lie in the safeguarding of the legitimate interests of the party bearing the secret (the bank). This requires a weighing up of the interests of the bank in the disclosure of the secret and the interests of the customer in maintaining secrecy.
If a customer brings an action against the Bank, it shall be assumed that the Bank is released from its duty of secrecy in this respect, since disclosure of the secret already occurs when the customer brings the action.
The same will apply if not the business relationship with the bank is the subject of the proceedings, but the customer also has other legal relationships with the bank, for example, if the customer is/was an employee of the bank and a labor law dispute is the subject of the civil proceedings.
If the customer concerned is not a party to the civil proceedings, for example because a third party is conducting civil proceedings against the bank, a distinction must be made as to whether the disclosure is in the interest of the customer (thus the customer) or only in the interest of the person entrusted with secrecy (the bank).
If the person concerned is not involved in the proceedings, but disclosure of the facts protected by secrecy would be in his or her interest, it is recommended to obtain a declaration of release.
If the customer explicitly refuses to disclose the information subject to banking secrecy, disclosure is not permitted, even if disclosure would be in the customer's interest.
If the disclosure is in the interest of the bank, such a disclosure is only permissible in the absence of a declaration of release and only to the extent absolutely necessary if massive self-interests of the bank are at stake and these clearly outweigh the interest of the customer in maintaining secrecy in an evaluative view. The bank would have to be in a state of emergency.
A distinction must be made between who presents the facts protected by secrecy and in whose interest the disclosure is. If the customer characteristic is brought up for discussion by the customer involved in the procedure itself, a relevant release of the bank is to be assumed, whereby this release applies only within a narrow framework.
If, on the other hand, the customer is not a party to the proceedings, if no release is given and if the submission is in the interest of the bank, the disclosure of secret information can only be justified by an emergency situation, for the existence of which there are no indications in the known facts.