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Spain refuses to extradite Swiss bank data ‘thief’

A Spanish court refused on Wednesday to extradite a former HSBC bank employee to Switzerland where he is wanted for allegedly stealing data that exposed thousands of suspected tax dodgers.

Published: 8 May 2013 21:49 CEST

Spain refuses to extradite Swiss bank data 'thief'

Hervé Falciani in Spanish court. Photo: Pool/AFP

Hervé Falciani, a 40-year-old French-Italian, was arrested in Barcelona in July 2012 after he arrived by boat from France.

Switzerland asked for Falciani to be extradited to face charges of violating Swiss banking secrecy laws and revealing industrial secrets.

But Spain's National Court denied the request on the grounds that violating banking secrecy laws is not punishable as a criminal offence in Spain.

The court also argued that Falciani cannot be accused of revealing industrial secrets since the information he disclosed was given to the "competent authorities" and it was "related to illegal acts carried out through this bank which cannot be penally protected".

Spanish prosecutors had opposed Falciani's extradition on the grounds that he was helping authorities investigate tax fraud and because banking secrecy was abolished in Spain in 1977.

"We can't punish people who, when they observe criminal conduct where they work, denounce it to the authorities," Spanish prosecutor Dolores Delgado said during Falciani's extradition hearing last month in Madrid.

Falciani collected data on at least 24,000 customers of HSBC's Swiss subsidiaries from 2006 to 2008, while he worked in the bank's information technology development unit in Geneva.

He then passed on the data to French authorities.

The files, which were subsequently relayed by French investigators to their counterparts in the United States, Spain, Italy, Greece and several other European Union countries, led to a raft of prosecutions.

During his extradition hearing Falciani said his intention was to raise the alarm about the bank's activity and denied he sought to sell the information as alleged by Swiss officials.

"Never, in no instance," he said when asked if he had received any money for turning over the files to the French authorities.

He told the court he obtained the files from colleagues and said the information was so abundant that "if printed, it would fill an entire freight train."

Spain's National Court ordered Falciani's conditional release from jail pending his extradition hearing in December after the Spanish authorities argued he was cooperating in several European countries in investigations into tax evasion, money-laundering, corruption and terrorism financing.

Members of Spain's grass-roots "Indignant" movement against corruption and economic inequality had called for his release, seeing him as a hero.

Falciani fled to France from Switzerland in 2009 while he was under investigation by HSBC.

US officials then warned him he was in danger and advised him to go to Spain, Falciani said in a lengthy interview published in daily Spanish newspaper El Pais last month.

"They told me that the only safe place in Europe would be Spain, which had used my information with success in important cases," he said.

"They thought it would be very unlikely that Spain would approve my extradition to Switzerland."

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Several readers have asked about the restrictions and necessary documents and tests needed to drive to the UK and if it’s possible. Here’s what you need to know.

Travelling by car between the UK and Spain at the moment is possible, but not very easy. Although it’s a lot easier now than it was before the state of alarm ended, it will still involve PCR and/or antigen testing, quarantine, and lots of form-filling. This will mean extra expenses too.

Spain and France have both updated their rules on travel as restrictions begin to ease. Here’s a look at what you need to know driving between the UK and Spain, via France right now.

Leaving Spain

Movement in Spain has become a lot easier since the end of the state of alarm on May 9th. This means that you can easily drive across regional borders without the need to prove specific reasons.

There may still be certain municipalities or health zones that you might need to avoid because their borders are still closed due to a high number of cases, but for the most part, your drive through Spain, up until the French border, will be easy.

Keep in mind that some regions still have certain restrictions in place such as when bars and restaurants are allowed to open and a few still maintain curfews, so you’ll need to check the rules of those regions you’re planning on driving through.

Crossing the French border from Spain

Travel into France is allowed for any reason, including for tourism and family visits. This easing of restrictions was introduced on May 3rd, which saw France opening up both its regional and international borders.

According to the French embassy in Spain: “Entry into the metropolitan territory from a country in the European area is subject to the presentation, by travellers over eleven years of age, of a negative result of a PCR test, carried out within 72 hours prior to departure. This obligation applies to all modes of travel (arrival by road, rail, air or sea)”.

They also state that all travellers will have to present an affidavit/certificate of international travel, certifying that they do not have symptoms of Covid-19 infection and that they are not aware of having been in contact with a confirmed case of Covid-19 in the fourteen days prior to the trip.

“If you are over eleven years old, you agree that a biological test for SARS-CoV-2 will be carried out upon arrival on French territory” it continues.

The certificate can be downloaded from the website of the French Ministry. The supporting documents must be presented to the control authorities at the border.

The test must be carried out within 72 hours of departing for France and the antigen test is not accepted. You must take a PCR test, otherwise, you’ll be refused entry to France.

A Spanish police officer checks PCR coronavirus tests at the border between Spain and France. Photo: RAYMOND ROIG / AFP

You can drive straight through France, as there’s no quarantine requirement for those coming from inside the EU.

Note that France still has several restrictions in place, but they are gradually easing. As of May 19th, the curfew was extended to 9pm and bars and restaurants were allowed to operate outdoor services only. This means that you’ll need to stop driving and find somewhere to spend the night after the 9pm cut-off time.

If you have to travel past curfew for an essential reason, you will need an attestation permission form, which you can find HERE.

From June 9th, the curfew will be extended again until 11pm and the interiors of bars and restaurants will be allowed to re-open.

Masks are compulsory in all indoor public spaces across the country, and also outdoors in most of the larger towns and cities. If you don’t wear one, you could face a fine of €135.

Entering the UK

On May 17th, the UK government lifted its ban on all non-essential travel abroad and replaced it with the traffic light system, assigning countries to red, amber or green lists, according to their health data.

France and Spain are currently on the amber list, as well as most other European countries, bar Portugal, which is on the green list.

This means that you must follow the amber list rules.

The UK government website states that if coming from an amber-list country, even if you’ve been vaccinated, you need to follow these rules before you enter England:

take a COVID-19 test
book and pay for day 2 and day 8 COVID-19 travel tests– to be taken after arrival in England
complete a passenger locator form

On arrival in England you must:

quarantine at home or in the place you are staying for 10 days
take a COVID-19 test on or before day 2 and on or after day 8

Children aged 4 and under do not need to take the day 2 or day 8 test.

You may be able to end quarantine early if you pay for a private COVID-19 test through the Test to Release scheme.

The traffic light list only applies to England, but Scotland also has its own traffic-light system, which at the moment has the same green-list countries as England. It is thought that Wales and Northern Ireland are likely to adopt the traffic light system too.

If you’re entering the UK from an amber country, you can go for any reason. It doesn’t have to be an essential trip and entry is not limited to UK nationals or residents.

Find further information on UK travel rules HERE.

If in the future, France makes it onto the green list, then no quarantine will be necessary. Regardless, of this, a negative Covid-19 test is still needed to enter England, plus another test on or before day 2.

What about driving back to Spain?

The UK is still advising against travel to amber countries for leisure or tourism reasons, which France and Spain are both currently on.

This isn’t a travel ban, but the official stand can mean that your travel insurance won’t be valid, so check your policy before you travel.

JUNE UPDATE: From Monday, May 31st, France is tightening up entry requirements for arrivals from the UK, following in the footsteps of Germany and Austria as European countries become increasingly concerned about circulation of the ‘Indian variant’ of Covid in the UK.

So what’s the situation if you are just passing through?

If you are returning to your permanent residence in another EU or Schengen zone country then you can travel, as one of the listed ‘vital reasons’ is returning home. You will, however, need to show some proof of your residency, ideally a residency card.

If you are travelling for another reason you can travel through France, provided you spend less than 24 hours in the country.

The testing requirement applies to all arrivals, even if you are only passing through France, but if you spend less than 24 hours in the country you are not required to quarantine.

You will also need to check the rules in your destination country on arrivals from France. If you are entering France from an EU or Schengen zone country you will need to show a negative Covid test taken within the previous 72 hours and this must be a PCR test. You can enter France for any reason from an EU/Schengen country.

And yes, these rules all apply even to the fully vaccinated.

To find out more about the rules and exceptions for travel between France and the UK click the link below.

Currently, the Spanish government website states that only citizens and legal residents of the European Union, Schengen states, Andorra, Monaco, The Vatican and San Marino, as well as those who can demonstrate through documentary evidence an essential need to enter Spain, will be able to enter the country.

However, Spain recently announced that it would welcome British tourists into the country without a negative PCR test from May 24th.

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The website also states that “all overland travellers (excluding children under the age of 6 years old) who wish to enter Spain by road from France, are required to present a negative PCR or antigen test taken within 72 hours prior to entry”.

This applies to everyone, even if you have been vaccinated already.

Please note The Local is not able to give advice on individual cases. For more information on international travel to and from Spain, see the government’s website and check the restrictions in your destination country with the appropriate embassy.

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