Appeal Court of the canton Zurich Penal chamber P.

O Box 2401 8021 Zurich

Canton Zurich Prosecutors Office Winterthur /Unterland Hermann Gtz-Strasse 24 P.O. Box 8401 Winterthur Address for parcels: Hermann Gtz-Strasse 24 8400 Winterthur Telephone 052 268 54 24 Telefax 052 268 54 28 www.staatsanwaltschaften.zh.ch Postal account 84-1018-6 Head Prosecutor Dr. iur. R. Jger Direct phone number 052 268 54 09 Direct fax 052 268 54 28 rolf.jaeger@ji.zh.ch ref. ZWI 2011/57 Winterthur, 10 March 2011

Appeal
Art. 339(3) stop, Section 103(2)(c) GOG
Accused person: Elmer Rudolf Mathias, born on 01.11.1955, from Elm and Zurich, Certified Auditor Address: Nauergasse 11, 8427 Rorbas, known address, prison in accordance with the indictment Represented by the public defender attorney lic.iur. ganden Tethong Blattner, Kasinostrasse 3, 8032 Zurich Coercion etc.

Offence:

Judgment:

District Court of Zurich, 9th section dated 19 January 2011, received on 25 February 2011

With regard to this case, I herewith file this appeal with the High Court of the Canton of Zurich. The appeal is limited to the assessment of the sentence and the conditional nature of the sentence For the reasons specified below: I therefore make the following request: 1. to impose a penalty of 12 month imprisonment 2. to suspend the sentence and to fix the probation period to three years. No applications to take evidence are made. Rationale: With regard to the length auf the sentence First of all, the following needs to be put on record: In its indictment of 25 June 2010, the Prosecutors Office of Winterthur / Unterland had requested a sentence of eight months of imprisonment. The single judge of the District Court of Zurich condemned the accused to pay 240 day fines of CHF 30.--, i.e. eight months, with a probation period of two years, although he had been partly acquitted in three instances. With regard to the law applicable to the sentencing, one can refer- as far as the legal reasoning is concerned - to the correct explanations contained in the judgment of the previous instance, since, as it will be explained, the Prosecutors Office had otherwise not requested a fine but a prison sentence. The relevant starting point for the sentencing and therefore the determination of the penalty is Art. 47 of the Swiss Penal Code (StGB) and in this respect, first of all, the culpability of the perpetrator. After the consideration of possible aggravating or mitigating circumstances, the possible range of the sentence is determined by the penalty foreseen for the specific offence which includes, in an abstract way, the highest penalty. In accordance with Art. 49(1) StGB, the presence of several offences has to be taken into account as an aggravating circumstance, since the accused had been convicted by the previous instance for threats, reiterated attempted coercion and multiple violations of bank secrecy. Therefore, the maximum available penalty of up to 4 years of imprisonment.

There are no mitigating circumstances, in particular for the attempt. Explanations regarding the sentencing in general are not necessary in the present case, since the applicable rules are very well known. It is more important to examine the elements of the offence, the subjective side of which had been explained by the previous instance and, in any case, hardly any implication can be drawn from it for the sentencing. Elements of the offence: The offence of the gravest nature, the threat, is constituted by an e-mail in which the accused sharply criticized and threatened the victim Hiestand to contract a killer in order to execute him; as an employee of the legal department of the Bank Julius Br, Hiestand had one must almost say out of goodwill - dealt with the file of the accused. As already established by the previous instance, this must be considered to be a serious threat. Therefore the objective element of gravity has be evaluated as at least significant, if not serious. One cannot objectively consider this act to be an only offence of just more than minor gravity. From a subjective point of view, the accused has acted five years after his dismissal - out of a pure sense of revenge which culminated in 2007 in the use of a serious threat and offending statements against the victim. The accused had sought revenge and had over the years nursed and developed a grudge for having allegedly been unfairly treated on the Cayman Islands (lie detector) and dismissed in 2002. This easily shows that the accused had over the years nurtured and cultivated his aggressions towards the bank and its representatives. The way the accused acted in the context of other offences like the attempt to coerce the victim Lowell, the bank as well as the violations of bank secrecy are evidence of the criminal energy of the accused, above all his base motives emanating solely from his vindictiveness, because he felt offended and disregarded. Under this aspect, all the explanations of the accused that he had been a whistleblower come to absolutely nothing. It has to be put on record that after his dismissal from Julius Br, the accused continued to work for the financial industry, either for Noble Investments in Zurich or for a Standard Bank in Mauritius. In this context, one can refer to the correct considerations of the previous instance, and above all that the attitude of the accused had been reprehensible. The behaviour of the accused after he had committed the offences, has also to be duly taken into account: he did not refrain from continuing to denigrate the bank, for instance by publishing in 2008 various information and documents on WikiLeaks and in particular - and as it is well known - by handing over data to Julian Assange in London. In this regard, new proceedings have been instituted in the meantime by the Special Office of the Prosecutors III of the canton of Zurich. All this leads to the conclusion that a maximum penalty of at least 15 to 18 months imprisonment has to be taken as a starting point for computation. A lightly mitigating circumstance is constituted by the acknowledgment of an attempted coercion of the victim Julius Br and the disclosure of data to the tax authorities in at least three cases.

Overall, considering both the objective elements of the offences and the subjective side concerning the perpetrator, the Prosecutors Office comes to the conclusion that one has to start computation from a penalty of 15 to 18 months imprisonment which has to be reduced by three months in view of the confessions made in some respect; therefore, a penalty of at least 12 months of imprisonment appears to be appropriate. There is no obstacle for a deduction of the 32 days already spent in prison (Art. 51 StGB). The execution of the sentence: On this point, the previous instance had explained that the conditions for the granting of a suspension of sentence in accordance with Art. 42(1) StGB had been met, since he had never been convicted before. Therefore, no indications allowed to unsettle a presumption which the law requires to be propitious. On one hand, the accused had committed in 2007 additional offences in spite of ongoing criminal proceedings, he had also acknowledged to have acted again or not to have refrained from pursuing his obscure thirst for revenge. Hence, the Prosecutors Office has significant doubts that the accused would be really impressed by a sentence of a suspended fine which would prevent him from committing other offences. For this reason, a probation period of at least three instead of the minimal period of two years, is justified. Prosecutors Office Winterthur / Unterland (Signature) Head Prosecutor Dr. iur. R Jger Represented by Deputy head Prosecutor lic.iur. S.Steinhauser To: Original to the Appeal Court of Zurich For information to the District Court of Zurich, P.O. Box, 8026 Zurich For information to the Prosecutors Office Winterthur / Unterland, Office B-3