You will find the original writ here
SUMMONS
BEFORE THE
TRIBUNAL
D’ARRONDISSEMENT,
BETWEEN:
1. Ms. Katalin Baranyi (PhD Scholar)
2. Mr. Herman J Berge (LLB)
Plaintiffs
- and -
Danske Bank International S.A.
Managing Director, Mr. Klaus
Mønsted Pedersen, on behalf of Danske Bank
Defendant
A. INTRODUCTORY
and STATEMENT OF FACTS
1. Danske Bank International S.A. (DB or the
bank), which is a dependent branch
office of Danske Bank AS (Copenhagen, Denmark), operates as a bank in
Luxembourg and is a client of Francis Kesseler who operates as a notary in
Esch-sur-Alzette. Danske Bank has engaged Kesseler to prepare and carry out an illegal forced sale of our house, this
to cover some unsubstantiated debt. As notary Kesseler for some unknown reason
refuses to provide us with any documents in this matter, we have to assume that
sometime late January 2011 Danske Bank AS,
Exhibit # 1: Krediteröffnungsurkunde
of
2. Based on this document – and only this
(i.e. no documents indicating a default) – Kesseler started the preparations
for the foreclosure and in this regard he contacted us with his letter of
Exhibit # 2: Kesseler’s letter of
3. As this letter was written in French, a
language of which we neither read nor understand, we were forced to translate
it using the Google language tool. In our respond letter of
Exhibit # 3: Our letter of
4. Notary Kesseler refused to respond to our
letter, hence we dispatched a reminder informing him that we would file a
criminal complaint against him for harassment if he should not respond to us
within
Exhibit # 4: Our reminder of
5. On
Exhibit # 5:
CD containing the preface of the said phone conversation in which
Kesseler
refuses to give us any information in writing.
6. During this conversation it became clear
that it was not Danske Bank who had contacted and “hired” Kesseler as he though
had stated in his letter of January 25 2011, but a lawyer; Mr. Alex Schmitt.
From previous correspondence with this Schmitt it has become evident that the
bank in question never formally hired him. Consequently Schmitt has not been
furnished with a Power of Attorney and is thus not in any position to represent
a third party or present claims on behalf of any such third parties. Schmitt
himself has declared to us in his fax of
Exhibit # 6: Alex Schmitt’s fax of
7. If this should be true, what Schmitt
claims, that a lawyer or any other representative in Luxembourg can act at
random – without an instrument in
writing whereby one person, as principal, appoints another as his agent and
confers authority to perform certain specified acts or kinds of acts on behalf
of principal – then the total anarchy in Luxembourg has finally been proved. It
should, by obvious reasons, not be necessary to elaborate on the implications
such a state of affairs will have on any society.
8. In our letter to Kesseler of February 14
2011 we informed him; that we – as a defendant to the foreclosure – are
entitled to be granted access to all relevant documents he is concealing; that
he had failed to prove that we are in default; that the bank 1) manipulated us
to believe, and we consequently thought, that the bank had granted us a house
loan of which the bank today rejects the existence of, and 2) deliberately
misled us to sign on a criminal investment scheme, similar to the numerous
criminal investment schemes that this bank subsequently has “pushed” on retired northern Europeans with
unencumbered properties in Spain; that the mortgage deed of
January 15 2007 contradicted the notary deed of October 17 2006; that the
mortgage deed was in violation with Article 19 (3) of Directive 2004/39/EC, and
finally that the bank has deceived and defrauded us and that notary Camille
Mines did, at best, nothing to stop this fraud.
Exhibit # 7: Letter to Kesseler of
9. On
Exhibit # 8: Criminal complaint XXII
of
10. Early in the morning of February 18 2011,
at 07:40 (well before normal office hours), a Josiane Gloden attempted to serve
Kesseler’s “Commandement”, basically shouting in a hostile tone that our house
will be subject to a forced sale since we hadn’t paid on our house loan.
Exhibit # 9: Commandement of
11. In this non-served document of February 18
2011 Notary Francis Kesseler (and Josiane Gloden) claims that we failed to pay
€ 453.199,76 on October 4 2010, that we – by this failure to pay the bank in
question – have defaulted a contract and that he pursuant to Article 879 of the
“Nouveau code de procedure civile” thus are entitled to sell our house on
behalf of the bank.
12. Kesseler (and Gloden) was at the time of the
issuing positively aware of the fact that he had not seen nor was he in
possession of:
·
any contracts or agreements
stating that we owe the bank the sum of €453.199,76.
·
any document (a NOTICE) proving
that we had been requested to pay the said sum within
·
any agreement or contract of which
the aforementioned sum of €453.199,76 refers to and which stipulates interest
rates, instalments or other statutes of which claims to be breached.
·
any document proving that we have
defaulted and thus are in breach of an agreement or contract.
13. Hence we petitioned Gloden, in our letter
of
Exhibit # 10: Letter of
14. Gloden refused to respond to this petition,
hence she failed to provide us with evidence of default and liabilities,
consequently failing to prove the legal authority of her demand/claim. Gloden
was thus fully aware of the fact that the defective “Commandement” could not be
served.
15. On
Exhibit # 11: Letter of
16. Make note of the following: The said
article clearly demands that such a referral is to be explicitly stated in the
mortgage deed. As the author of this mortgage deed has failed to make this
referral, Kesseler has no legal basis or authority issuing his “Commandement”,
nor has he any legal authority to execute the bank’s instructions.
17. We also informed Kesseler in this letter that
it is stated in the mortgage deed that we have ordered this deed. Yet again we
are facing one of Danske Bank’s numerous fraudulent acts. We have never ordered
this document. We have never seen such a document before
18. Let us yet again remind the court that this
mortgage deed, of which we later on have learned is a financial instrument, should – in accordance with Article 19 (3) of
Directive 2004/39/EC – have been presented to us in good time before we
actually were supposed to enter into it, authored in a language of which we
understand. Presenting this financial instrument, in a language the bank knew
we didn’t understand, on the day we were taking over the house, demonstrates
the bank’s fraudulent motives.
19. On
Exhibit # 12: Criminal complaint of
Exhibit # 13: Criminal complaint of
20. On March 17 2011 we informed the public
prosecutor that no documents exists that could give legal grounds for
instigating a foreclosure and that Kesseler hence was preparing a criminal act
against us and our private property. Since Kesseler vigorously has denied us
our right to get access to documents that allegedly support his actions –
documents which obviously are of a nature that gives us a right to both
contradict and defend ourselves against – we petitioned the public prosecutor
to instruct Kesseler to grant us access to:
“…all documents of which he (Kesseler) claims comprises the legal basis for the
imminent foreclosure, or – if Kesseler can not provide the prosecutor and us
with these said documents listed in the criminal complaint of
Exhibit # 14: Letter of
21. The public prosecutor has refrained from
responding to our petitions and to this day remains silent and totally
inactive. We have thus been unlawfully denied access to essential documents to
the case, consequently we have been deprived of our right to contradict
allegations of being in debt to the bank as well as allegations of default.
This in turn leads to the conclusion that we have been effectively deprived of
our right to defend ourselves (against a criminal entity thriving in
22. The Mortgage Deed in question states that
we have ordered this document. This is obviously a lie hence we petitioned the
bank, in our letter of
“…provide us with any document that could
prove that we have ordered this financial instrument. The bank is also
petitioned, within the same timeframe, to provide us with an English as well as
a Norwegian authorized translation of the said document.”
Exhibit # 15: Letter of
23. The bank – which to this day remains silent
to any of our petitions – has refused to respond to this letter, consequently
proving the lie as well as the fact that we didn’t order this document.
24. As a consequence of Francis Kesseler’s wilful
engagement in the bank’s criminal activity, making the said person an
accomplice to crimes, we filed a € 74 million compensation lawsuit against
Kesseler on
Exhibit # 16:
Writ of summons against Francis Kesseler of
25. Based on the fact that the bank in question
in a deceptive and fraudulent manner and with a criminal intent produced,
presented and manipulated us to sign a fraudulent document – the said Krediteröffnungsurkunde
– we filed a Criminal Complaint (XXVI) against the Managing Director of Danske
Bank International.
Exhibit # 17: Criminal complaint # XXVI
dated
26. As the charges have been levelled at a bank,
the public prosecutor traditionally refused to respond to our petitions, at
all, hence we are not protected by any law or so called democratic institutions
which in turn lead to the conclusion that crimes and corruption prevails in Luxembourg
democratic institutions, not the rule of law.
27. During our investigation of this case it
has been revealed that the Luxembourg Government has established a crime
protective system[1]
of which all the major “democratic” institutions are involved. Its core object
is to protect persons and institutions[2]
violating the law during the course of their/its activity, and to cover up
these violations, all this to the best interest of the country. The system and
its implications are described and documented in our € 72 million lawsuit
against CSSF.[3]
Exhibit # 18: Writ of summons
against CSSF of
28. Based on solid documentation (e.g.
incriminating documents and voice recordings) we have filed some 26 criminal
complaints against the bank in question and its accomplices. Furthermore we
have filed compensation lawsuits against both the main culprits with the bank
as well as against the CSSF, documenting that the bank’s activity is of
criminal nature and that CSSF has accepted the said activity and thus are
liable.
29. Not a single criminal complaint has been
investigated by the public prosecutor or the courts and not a single lawsuit
has been tried in a court of law. On the contrary; we haven’t heard a word from
the court. It is like there are no law or courts in Luxembourg. In this regard
we have asked ourselves: How can such an anarchic system survive in the middle
of a so called democratic Europe? Luxembourg’s Prime Minister / Minister of
Finance gave us the answer a few weeks ago during a conference on economic
governance in Brussels, basically stating that he is a liar and that it is
necessary to lie when it comes to important questions/problems.
Exhibit # 19:
30. Juncker attempted to clarify his tendencies
to lie stating that he is not a fan of transparency when it comes to economic
policy. Juncker elaborated this:
“Monetary policy is a serious issue. We
should discuss this in secret, in the Eurogroup. As exists in the case of
monetary policy, all economic decisions should now be discussed behind closed
doors.”
31. According to news352 Juncker stated that he
often “had to lie” in order not to feed rumours, and Juncker defended his
motives for being a liar:
“l’m ready to be insulted as being
insufficiently democratic, but I want to be serious.”
32. Only a despot could have expressed himself
like Juncker did, but he didn’t quite stop with this. It has been suggested
opening economic policy meetings for the public, but according to news352
Juncker rejects this idea, saying that EU leaders needs time and space (i.e. secrecy)
to make good decisions.
33. So, there we are. Our Prime Minister /
Finance Minister for the last quarter of a century is a liar admitting that he
is not democratic in his administration, and that he sees no reason to let his
people take part of whatever he is doing to the country. Not to wonder that
Luxembourg is one of only few countries left in the world without a freedom of
information act.
34. We have informed Juncker about the illegal
financial policy in Luxembourg – which is the cause of the country’s financial
crisis besides being the cause of our problem with the bank (and thousands of
other savers and investors who have lost their savings to criminal banks
established in Luxembourg) – and petitioned him to act. Juncker refrained.
35. Juncker’s clearly despotic policy and
administration of Luxembourg is the sole reason why CSSF protects and conceals
the financial institutions’ criminal activities; why the public prosecutor
shelves (without any investigation) all criminal complaints against any, for
the country, profitable business in Luxembourg; and why the courts refrain from
trying our rights, or even responding to our correspondence and attempts of
litigations.
B. STATEMENT OF CLAIM
36. The
“Commandement” of February 18 2011: The Defendant, Danske Bank, claims
through Kesseler that we are obliged to pay the sum of € 453.199,76 to the
latter or to his client. Furthermore the bank claims that we should have paid
this amount at the latest on October 4 2010. On the other hand Kesseler and the
bank have vigorously rejected to provide us with any documents that could prove
their claim. It is thus a notorious fact that notary Kesseler, on behalf of the
bank, issued a “Commandement” without the slightest piece of evidence of an
agreement and a default of this agreement. Actually Kesseler had no documents
in hand that could justify[4]
his “Commandement”. Nevertheless Kesseler claims that he is entitled to sell
our home based on fabricated information on breach of contract, which in turn
makes him and the bank liable to any damages or economic loss caused by his
actions. It goes without saying how serious it is when a notary starts
fabricating a default (note that Kesseler has declared that the due date for
the payment was October 4 2010 well aware of the fact that such due date does
not exist) in order to fulfil his client’s instructions.
37. The
Krediteröffnungsurkunde (the mortgage deed) of January 15 2011: When we
attended the meeting at notary Camille Mines’ office on January 15 2007, we
thought that we were to hand over the check, sign a notary deed and finalize
the take-over of our new home. The meeting though seems to have ended up with
us signing on a mortgage deed which sole purpose – we were explained – was to
guarantee the due payment on the house loan we had been granted, nothing else.
The first time we ever saw this document was on January 15 2007. The content of
the mortgage deed has to this day never been discussed with us, and we still do
not understand its content as this document has never been translated to a
language that we understand.
38. As agreed upon on June 27 2003 all
documents the bank produces for the purpose of our attention are to be authored
in English.
Exhibit # 20: Agreement of
39. The mortgage deed, which we saw for the
first time on January 15 2007 at notary Mines office, is written in German,
hence in violation with the said agreement of June 27 2003. Even though we
informed notary Mines that we couldn’t understand this document as we didn’t
read or talk the German language, notary Mines did not stop the process
demanding the bank to furnish us with an authorised English print. On the
contrary he did what – according to notary Kesseler’s statement in the above
mentioned phone conversation – is common practice among Luxembourg notaries: He
tried to bend and get around the law by “explaining”
the content of this document in English.
40. His “explanation”, for whatever that is
worth in the light of the MIFID-Directive, did not alert us that this was
anything more than a house mortgage. But even if we had been alerted that this
was something else, we had no alternatives but signing it, as we already had
paid some € 100.000 upfront on October 17 2006, and as the seller was entitled
to make a forced sale of the house if we for any reason did not pay the
remaining amount on that day. We were thus placed under duress by the bank as
the latter failed to 1) provide us with the German document in due time before
January 15 2007, and 2) inform us, at all, about its existence and its content.
41. A mortgage deed is a financial instrument,
and the Commission Directive 2006/73/EC Articles 29 and 30, implementing Article
19 (3) of Directive 2004/39/EC, clearly states that any relevant information is
to be provided;
“…in a comprehensible form… so that they (clients
or potential clients) are reasonably able
to understand the nature and risks of the investment service and of the
specific type of financial instrument that is being offered and, consequently,
to take investment decisions on an informed basis.”
42. As
documented in criminal complaint XXII, this mortgage deed (or whatever it is)
was presented to us for the first time just minutes before we were to get the
keys to the house. It was not presented to us in a language we understand or in
a language agreed upon nor in a comprehensible form. We were not able to
understand what kind of document this was or the nature and the risk of what
the bank presented and forced upon us. Hence we were not at all in a position
to take “investment decisions on an informed basis”.
43. We trusted the bank and we had no reason
not to trust notary Mines. Nevertheless we were deliberately deceived by both,
hence we were not given the slightest chance to take a sound investment
decision on January 15 2007 as we actually were not able to understand the
concept, the nature or the risks of the financial instrument (Krediteröffnungsurkunde)
offered in disguise of a house mortgage that
day.
44. The fact that our signatures appears on a
document we obviously didn’t (and still don’t) understand the content of,
taking into consideration the backdrop of this matter, will automatically render
the document null and void, hence the document is of no legal value, lacking
any form of legal force. The bank has deceived and defrauded us and Mr. Mines
did, at best, nothing to stop this fraud. The said Krediteröffnungsurkunde is
part of a criminal financial scheme and the only reason why our signatures
appear on this document is the bank’s fraudulent conduct.
* * *
45. As documented notary Kesseler was – at the
latest on February 15 2011 – duly informed about the bank’s criminal activity,
that the bank’s representative acted without a Power of Attorney, the criminal
complaints against the bank and about the fact that if he continued to carry
out the bank’s instructions, he would be committing a crime.
46. Notary Kesseler nevertheless refused to act
upon the information he was provided with. Instead of acting duly upon our
letters, petitions and complaints, Kesseler deliberately continued to carry out
the illegal and unfounded preparations for a forced sale of our house. In this
he planned how to avoid our petitions and complaints, concealing facts and
documents, hence committing fraudulent concealment. Furthermore Kesseler
deliberately chose to forgo information from us which immediately would have
stopped the unauthorized and illegal preparations for a foreclosure. In turn
this could have broken the chain of frauds and thus minimized our loss in
particular and damages in general. Kesseler stated in the abovementioned phone
conversation of February 9 2011 that he would never discuss the merits of the case
with any other person than a lawyer, hence depriving us of our right to defend
ourselves and our home, blatantly violating Article 47 of the Charter of
Fundamental Rights. Consequently Kesseler deliberately and unlawfully
obstructed any chance we had to uncover the truth and stop the preparations of
the foreclosure, hence inflicting huge economic loss on us.
47. Kesseler was at the latest in February 2011
duly informed that the bank in question, his client, deceitfully provided its
clients in Norway with illegal agreements. These agreements are illegal for at
least two reasons: 1) The bank is not authorised to provide portfolio service
to Norwegian clients in Norway, and 2) pursuant to §8 of the Norwegian Regulation
F07.07.1994 nr 717 all agreements between a foreign financial institution and a
Norwegian investor / client is subject to Norwegian law. This provision is to
be included in any agreement.
Danske bank International S.A. is, as notary Kesseler knows, nevertheless consistently misleading Norwegian
clients to forfeit their rights protected by mandatory regulations on financial
agreements and accept the bank’s unlawful provisions which falsely and
deceitfully states that the agreement is governed by Luxembourg law. The
consequence of this is that Kesseler knew at this point that the agreements
provided by the bank, in general, were illegal and that the legal as well as
economic consequences of the continuation of such an unlawful business could be
devastating not only to the bank but also to Kesseler and the Luxembourg
Government.
48. It
has been proven that Kesseler has not seen or been in possession of 1) any
contracts or agreements stating that we owe the bank the sum of €453.199,76; 2)
any document (a NOTICE) proving that we had been requested to pay the said sum
within October 4 2010; 3) any agreement or contract of which the aforementioned
sum of €453.199,76 refers to and which stipulates interest rates, instalments
or other statutes of which claims to be breached, or 4) any document proving that
we have defaulted and thus are in breach of an agreement or contract. Despite
this serious lack of mandatory documents, Kesseler issued the said
“Commandement”, an act which under normal circumstances immediately should lead
to his suspension and dismissal.
49. Kesseler
has as a notary and submissive servant of Grand Duke Henri deliberately failed
to react upon the information and documents he received concerning the bank’s
fraudulent cross-border activity and in particular the bank’s deceitful and fraudulent
activity where they succeeded in having us to sign a fraudulent document on
January 15 2007 of which was a part of a criminal financial scheme. This
demonstrates beyond any doubt that Kesseler not only protects the bank but that
he all the more is acting unconditionally upon this criminal organization’s
instructions. Kesseler has no intention and shows no will of carrying out any
conduct which could safeguard his public activity and should therefore be
suspended.
50. Kesseler’s
misconduct is regarded at best as gross negligence. We will though argue and
prove that Kesseler is guilty of wilful misconduct motivated by the financial
industry’s and the Government’s interest in protecting the financial business
against any probe / investigation / legal claims / litigation or its like. One
direct product of this misconduct is that bailiff Josiane Gloden illegally
attempted to serve Kesseler’s “Commandement” without the slightest proof of
default or breach of any contracts/agreements. This would never had happened
were it not for Kesseler’s decayed moral and thus his ability to accept any
assignments regardless of its legality, as long as he gets paid.
C. Procedural issues: Conventional rights – Self-representation and
Service of judicial documents
51. Introduction:
Luxembourg courts as well as their bailiffs have consistently rejected to
serve judicial documents from our hand, arguing that we are not represented by
a lawyer, hence obstructing our right to access to court. This position, or
view, has no support whatsoever in relevant international treaties of which
Luxembourg has signed and ratified.
52. Although it is beside the point here, it
has to be noted that there are no lawyers in Luxembourg that would touch this
or similar cases, a stand which has nothing to do with the case’s merits. Quite
on the contrary, it is rather a matter of safeguarding their very existence as
lawyers in this country. Holders of claims as described in this writ (there are
thousands of such holders) have thus no actual access to Luxembourg courts,
regardless of whether the plaintiff is represented by a lawyer or not.
53. Self-representation
in court and Service of judicial
documents in the EU – Facts in short: 1) Danske Bank International S.A. has
in collaboration with CSSF, the Public Prosecutor, the commercial court and the
Minister of Justice and Finance defrauded us of all our savings.[5]
2) We have been sued by the bank. 3) We wish to defend ourselves against the perpetrators,
and get back our savings and whatever we according to law are entitled of in
compensation. 4) We also see the need to file claims for damages against some
of the perpetrators for their wilful misconduct and criminal acts, deliberately
depriving us of our rights. 5) We do not speak the French language which for
some reason is the language of the court in Luxembourg. 6) The bailiffs in
Luxembourg refuse to serve our writ of summons/lawsuits, appeals and other
judicial documents arguing that we are not represented by a lawyer, and 7) The
bailiffs furthermore refuses to serve documents to us in a language which we
understand, hence depriving us of our right to know, understand, contradict and
to defend ourselves.
54. The
Law – Conventions guaranteeing fair and public hearing: The United Nations
UNIVERSAL DECLARATION OF HUMAN RIGHTS Art. 10 reads as follows:
“Everyone is entitled in full equality to a
fair and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge against
him.”
55. ECHR Art. 6 (1) reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law.”
56. EU-Charter Art. 47 reads as follows:
“Everyone whose rights and freedoms
guaranteed by the law of the Union are violated has the right to an effective
remedy before a tribunal in compliance with the conditions laid down in this
Article.
Everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal previously
established by law. Everyone shall have the possibility of being advised,
defended and represented.
Legal aid shall be made available to those who lack
sufficient resources in so far as such aid is necessary to ensure effective
access to justice.”
57. The variety of the different guarantees
comprised under the umbrella term of "fair trial" is extensive. In
this certain matter there are at least four guarantees which are relevant:
·
Access to court
·
Fairness - Equality of arms
·
Public hearing
·
The principle of
self-representation – be advised, defended and represented
58. The
guarantees of a fair trial – “Access to Court”: So, what is “access to court”? What does that mean?
59. Access to a court is a basic precondition
of a fair legal process, and requires not only that a court is existing, but
that such a court is in fact
accessible for the plaintiff pursuant to the standards developed by the
European Court of Human Rights with regard to Article 6 (1). This understanding
is also adopted by the European Court of Justice.
60. Right of access to court was for the first time
recognized by the ECHR in the case Golder v. United Kingdom, (21 February
1975):
“It would be inconceivable that Article 6 (1)
should describe in detail the procedural guarantees afforded to parties in a
pending lawsuit and should not first protect that which alone makes it in fact
possible to benefit from such guarantees, that is, access to a court. The fair,
public and expeditious characteristics of judicial proceedings are of no value
at all if there are no judicial proceedings.”
61. In the Ashingdane case (Series A no. 93)
the ECHR stated that, although limitations may be imposed:
“it must...be established that, the
degree of access afforded under the
national legislation was sufficient
to secure the individual’s right to a court; having regard to the Rule of Law
in a democratic society...the limitations applied must not restrict or reduce the access left to the individual in
such a way or to such an extent that the very essence of the right is
impaired...Furthermore, a limitation will not be compatible with Article 6 (1)
if it does not pursue a legitimate aim
and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be
achieved.”
62. If a plaintiff chooses to present his/her
case in person, and the authorities rejects his/her attempts of going to court
arguing that he/she must be represented by a lawyer, then the plaintiff has de
facto no access to court and the Government is facing complaints for violating
the above mentioned provisions.
63. If a party to a legal dispute does not
understand or speak the language of the court of which he/she wants to present
the matter to in person, then this party obviously have no chance of filing a
lawsuit to try his/her rights. Depending on the party’s economical stand, this
problem can be redressed by the court, offering the party an interpreter.
Should the court refuse to comply with a request for an interpreter, then we
are left with the conclusion that the party has no access to court, and the
provisions mentioned above has been violated.
64. The degree
of access to the court in Luxembourg was in our case against Remesch, Hilgert, Biltgen and others,[6]
none-existing and was thus not sufficient to secure our privilege to have our
rights tried in a court of law. Furthermore the Government has through its
instructions to its judges restricted and reduced the access left to us in such
a way and to such an extent that the very essence of the right to access to a
court is not only impaired but has actually evaporated. In this regard it
should be mentioned that the Government of Luxembourg has never indicated any
valid or legitimate aim for its extensive limitations of access to court.
65. One can conclude that we will never be – at
least not under the present regime – granted any judicial proceedings in
Luxembourg as long as we maintain our conventional rights. Consequently we have
in fact no access to court and the fair, public and expeditious characteristics
of judicial proceedings are of no value at all.
66. Fairness
- Equality of arms: The case law of the European Court of Human Rights
regards the principle of equality of arms as part of the guarantee of a fair
trial and has reiterated with respect to the adversarial nature of civil
procedure, that it requires a just balance between the parties, even
when one of the parties is the State. Thus, the European Court has ruled that:
“...every party to a case must be afforded a
reasonable opportunity to present his or her case under conditions that do not
place the party at a substantial disadvantage vis-à-vis the opponent.” See
in this respect, ECHR, Kaufman v. Belgium, N° 5362/72, 42 CD 145 (1972) and
Bendenoun v. France, A 284, para. 52 (1994).
67. Accordingly, the ECHR considers this
principle to include the idea of “a just balance” between the parties. Thus,
the ECHR has held that the principle of equality of arms equates to the right
to present the case to a court in equal conditions.
68. In light of this situation, the European
Court of Human Rights found that:
“...according to the principle of equality of
arms, as one of the features of the wider concept of a fair trial, each party
must be afforded a reasonable opportunity to present his case in conditions
that do not place him at a disadvantage vis-à-vis his opponent.” Cf. ECHR,
Foucher v. France, (March 18 1997, para. 34).
69. In Ruiz Mateos v. Spain the ECHR found
that:
“…the principle of equality of arms is only
one feature of the wider concept of a fair trial, which also includes the
fundamental right that proceedings should be adversarial.”
70. The Court went on to add that:
“…within the context of proceedings on a civil
right to which persons belonging to that circle are a party, those persons must
as a rule be guaranteed free access to the observations of the other
participants in these proceedings and a genuine opportunity to comment on those
observations.” Cf. ECHR, Ruiz Mateos v. Spain, (23 June 1993, paras. 15,
61, 63 and 65).
71. ECHR has indicated that the principle of
“equality of arms” requires that parties in judicial proceedings be able to
examine the witnesses of the opponent, be informed of the reasons for
administrative decisions, be able to appeal them, and have the right to
challenge decisions on equal terms. See,
in this respect, ECHR, X v. Austria, N° 5362/72, 42 CD 145 (1972). v. Harris, D.
J., O´Boyle, M. O. and Warbrick, C., cit., p. 209; ECHR, Heinrich v.
France, A 269-A, para. 56 (1994).
72. It is a fact that Danske Bank International
S.A. has acted deceitfully and has defrauded us and numerous other persons in
Europe, and that CSSF, the public prosecutor as well as the ministers of
Justice and Finance along with the notaries and courts are protecting the
crimes that led to this writ of summons. The bank and the said institutions
have thus succeeded in their aim; deceiving and defrauding clients / investors
to obtain highest possible turnover, concealing and protecting the activity and
subsequently making it impossible for the clients / investors to seek any legal
assistance or redress.
73. In addition to the many economic problems
occurring in the wake of bank-fraud cases – e.g. defrauded and drained clients
being forced to liquidation – a protective system has been established to
obstruct any attempts from deprived parties (who still wants to fight for their
rights) to go to court and have their rights tried.
A few
words needs to be said about one particular situation of which the banks in
Luxembourg take great advantage of: It is a fact that most of the funds that
are placed in Luxembourg banks originate from tax evasive actions in different
countries. The Government as well as the banks are fully aware of this, and
they know that should the banks’ financial service violate any law, the clients
/ investors will nevertheless find it hard or even impossible to instigate
litigations against the banks as this – at the end of the day – would mean to
reveal their secrets and liabilities to the tax authorities. The Government and
the banks exploit this situation for all it’s worth.
74. Firstly this has been done by instructing
the public prosecutor to shelve all criminal complaints against institutions,
firms and well known persons in Luxembourg. Furthermore anyone whose rights have
been violated is advised (by the public prosecutor) to contact a Luxembourg
lawyer with his/her grievances.[7]
As far as we know there are no lawyers in Luxembourg who would think of
attacking or even criticising this unlawful, unconstitutional and non-conventional
crime-protective system. Anyone who attempts to make public even the smallest
illegality in the Government, faces serious reprisals, which the case Roemen
and Schmidt v Luxembourg (51772/99, ECHR) is a perfect example of.[8]
75. Secondly all court officers have been
instructed that anyone that wants to have their rights tried in a court in
Luxembourg, shall be forced to do so through a Luxembourg lawyer, only (who
obviously is servile to the system), and that this has to be carried out in
French. Since close to all documents in a conventional bank-fraud case in
Luxembourg are drawn in English, the client is forced to pay for the
translation into the French language, which obviously is costly although
totally unnecessary.
76. As a rule one is by the above mentioned
provisions guaranteed free access to the adversaries’ observations and a
genuine opportunity to comment on these observations. So far so good, but what
if these observations are drawn in a language which the defendant doesn’t
understand? In that case the observations would be of no value, the same would
go for the guarantees of free access to observations and the opportunity to
comment on them. The only way to redress this problem is to translate the
documents, or to provide the defendant with an interpreter, cf. ECHR Art. 6
(3), litra e. Luxembourg authorities has vigorously rejected all our requests
of translating judicial documents, hence leaving us in a legal vacuum totally
deprived of our right to defend ourselves.
77. We have not been afforded the opportunity
to present our case under such conditions that do not place us at a substantial
disadvantage vis-à-vis the opponent in this matter. On the contrary; unlike the
adversaries in this matter we are not afforded any opportunities at all to
present our case, thus facing a totally unbalanced litigation which clearly
gives the adversaries / the offenders an advantage you will (hopefully) not
find in many other constitutional states. It goes without saying that such said
litigation is a blatant violation of the principle of equality of arms.
78. The observer will notice that the
Government is in full control over the (all too few) bank clients who are not
willing to obey to this crime-protective system. On March 4 2010 it was
announced in the world media that a commercial court in Luxembourg had turned
down a lawsuit against UBS and Ernst & Young of which was based on gross
negligence in connection with the “Luxembourg-Madoff fraud”. The consequences
of this court decision are far-reaching: Thousands of clients have hence been
deprived of their lawful right to sue anyone who has acted to the detriment of
their interest. The rule of law is, so to speak, ruled out in Luxembourg.
79. Anyhow, we can now clearly see the outline
of an unfair preparation for an unfair trial. The Government, its institutions
and what the country bases its existence on – the numerous foreign companies –
can with ease rely on the five primary obstacles: CSSF, the public prosecutor,
the courts, the language and the lawyers/bailiffs/notaries, which makes any
legal process against any perpetrators linked to this “social set” of people
quite unfair.
80. In short this is the unfair regime we are
living under in Luxembourg: The authorities have; refused to investigate obvious
crimes in spite of conclusive evidence; shelved close to 30 criminal complaints
in this regard; concealed documents and voice recordings proving the crimes;
put us under continuous covert surveillance; instigated illegal court
proceedings; carried out secret court proceedings; obstructed any attempts of
ours to challenge these proceedings, hence obstructed any attempts of defence,
etc. This means that we have been given no chance whatsoever to examine
witnesses or documents of the adversaries, to be informed of the reasons for
any decisions, to be able to appeal these decisions, or the right to challenge
these decisions. In fact we have been left tied up in the dark quarter of this
crime-protective system, without any possibility to defend ourselves. If
fairness and equality of arms have ever existed within the legal system of
Luxembourg, it has surely vaporised long time ago.
81. Public
hearing: This requirement, that the court be open to the parties, in the
sense of ensuring the personal presence of the parties or their
representatives, is the focal point at which all the strands of a sensible
conception of the public hearing requirement come together and from which all
the other aspects derive their full power and meaning, cf. ANSELM FEUERBACH, Betrachtung
über die Öffentlichkeit und Mündlichkeit der Gerechtigkeitspflege, Gießen,
1821&1825, para.i, at 96.
82. If a party to a court case does not
understand or speak the language of the court, and the court ignores his/her
requests for an interpreter and his complaints of unfair trial, the conditions
of “public hearing” have not been met. If this is the case, the court is
obliged to redress this problem by offering the party an interpreter. Should
the court refuse to comply with this demand, then we are left with the
conclusion that the party has no access to court, thus there are no public
hearing and the provisions mentioned above has been violated.
83. The
principle of self-representation – be advised, defended and represented: According
to the above mentioned provisions everyone is entitled to have his/her rights
tried by a court of law.[9]
It goes without saying that a holder of legal rights has a right to defend
these rights, in person, whether inside or outside court.
84. In regards to criminal cases this has been
more explicitly stated in ECHR Art. 6 (3) litra c. For the Court’s information,
this – that it seems that this is a
conventional right only for the accused – does obviously not mean that a
defendant or a plaintiff in civil matters has lost this right.
85. According to the EU-charter Art. 47 (2),
second sentence, a party is guaranteed a right to be advised, defended and
represented. This means that a party to a lawsuit is guaranteed a right to
defend himself in person, and if he so choose he has the right to be advised,
defended and represented as well. Self-representation in the courts is a
worldwide recognized principle. Any party to a court case has thus the right to
defend his/her rights in person or through legal representation of own
choosing.
86. A problem occurs when a party to a court
case does not speak or understand the language of the court. This will, as
stated earlier, easily be redressed by providing the party with an interpreter.
Authorities in Luxembourg have instead of complying with international treaties
traditionally obstructed any such attempts by demanding the party to have a
Luxembourg lawyer representing the party’s interests in court.
87. Conclusion
and demands: In conclusion this means that we are – in accordance with the
aforementioned provisions – entitled to be granted access to courts in
Luxembourg. Furthermore we are entitled to present our case in court, in
person. In this context we would like to inform the Court that Mr. Berge is a
jurist, he has been acting as an in-house lawyer for many years, he has won
several cases in the ECHR (Strasbourg), and he is fully capable of taking care
of our rights and interests in court.
88. The bailiffs’ argument that our writ of summons
can not be served as long as we are not represented by a lawyer is a violation
of all of the above mentioned provisions. Furthermore, the bailiffs in
Luxembourg are not judges but merely – besides standing as by far the largest
organization of debt-collectors in the country – messengers of the court where
their duty is to serve the court and the parties, or rather; the users of the
court. The bailiffs are thus in no position to decide upon whether a writ of
summons is admissible or not.
89. As the bailiffs in Luxembourg are ordered
to not serve our judicial documents we petition the Court to serve this writ of summons without further due and to
grant us access to court, in person, as self-representatives.
90. Oral
hearing: The Defendant has wilfully kept documents secret. Furthermore the
Defendant has refused to comply with our petition for discovery, hence
essential facts have still not been revealed. According to the ECHR and the
EU-Charter we are entitled to an oral public hearing before an independent and
impartial court of law. The Luxembourg Court of First Instance and its officers
have, previously, wilfully and effectively deprived us of this right. Should
the judges of the Court of First Instance still believe that European citizens
have no conventional rights in Luxembourg, we would then like to remind the
Court that this is not so.[10]
We will thus claim that we have a conventional right to an oral hearing, of
which shall take place in the Court of First Instance.
D. Causes of
action against the bank
91. As
described in detail above and in the documentation enclosed, the Defendant has
committed deceit and/or fraud and/or negligence and/or gross negligence in the
course of fulfilling its duties as a financial institution in Luxembourg. The
Managing Director is of obvious reasons liable. His criminal or wrongful and/or
grossly negligent acts have caused direct harm to the Plaintiffs, acts which
have incurred substantial investigation costs and opportunity costs in addition
to substantial economic and non-pecuniary loss. Claims for compensation for
these losses have been filed in our Counter Claim of December 16 2010, a
lawsuit which is still pending.
92. Had
the Defendant conducted his duties in accordance with law (in a fair, impartial
and professional manner), had he withheld his unlawful activity, had he
refrained from acting upon the head quarter’s (Copenhagen) instructions hence
refrained from acts which would make him an accomplice to fraud, and had he not
committed negligence himself, Danske Bank International S.A. would not have
been in a position to collect profit from its fraudulent activity, and the
Plaintiffs would therefore not have been harmed. The Defendant is liable for
the results of his tortious or quasi-tortious acts, and the Plaintiffs have
therefore – in the said Counter Claim of December 16 201 – sought judgment
against the Defendant as compensation for the damages they have suffered.
93. It
has been established as a fact that the bank has, by fraud and deceit, produced
and belatedly presented a fraudulent document – the Mortgage Deed – with the
intent to defraud. As described above, this document, and the bank’s
presentation of it, violates a number of laws and treaties and carries thus no
legal force whatsoever. The said mortgage deed shall thus be struck from the
cadastre (the Conservation des Hypothèques, Luxembourg). It has furthermore been proved
that the bank in collaboration with notary Francis Kesseler has fabricated a default
on October 4 2010, cf. paragraph 11 and 12 above, hence the aforementioned
“Commandement” is null and void and shall be declared so by the court.
94. On these grounds the Plaintiffs therefore
request that this Court:
1. declare
that this writ presents a valid claim;
2. declare
that the Plaintiffs’ claim against the Defendant is valid on the merits;
3. declare
that the Plaintiffs - In accordance with The United Nations Universal
Declaration of Human Rights Art. 10, the ECHR Art. 6 (1) and the EU-Charter
Art. 47 – has a right to present their claim in court, in person;
4. appoints
an interpreter;
5. declare
that the Krediteröffnungsurkunde, the so called Mortgage deed of January 15
2007, has been produced, presented and utilized in violation with Article 19
(3) of Directive 2004/39/EC;
6. declare
that the Krediteröffnungsurkunde, the so called Mortgage deed of January 15
2007, is a fraudulent document and is of no legal value;
7. declare
that the Krediteröffnungsurkunde, the so called Mortgage deed of January 15
2007, shall be struck from the Conservation des Hypothèques, Luxembourg;
8. declare
that notary Francis Kesseler’s “Commandement” of February 18 2011 is null and
void;
9. order
the Defendant to pay all the costs and expenses of these proceedings;
10.order
the Defendant to pay interest
up to and after the date of judgment in accordance with the terms of the
applicable law;
11.award
such further and other relief as the President may advise and that this
Honourable Court may deem just.
The
Plaintiffs expressly reserve their right to serve in due course any other legal
or natural person who has acted under or on behalf of the Defendant. The
Plaintiffs expressly reserve their right to assert other claims or causes of
action.
-------------------- --------------------
Katalin
Baranyi Herman J Berge
PhD Scholar LLB
DATED in Luxembourg this 20th
day of May 2011; delivered by fax and mail by the Plaintiffs whose address for
service is Mr. Herman J Berge and Ms Katalin Baranyi, 665 rue de Neudorf, L-2220 Luxembourg.
NOTICE
TO:
1. Mr. Klaus Mønsted Pedersen, on behalf of Danske Bank
You have been sued. You are a Defendant. You
have as many days as the Luxembourg Civil Procedure act provides you with to
file and serve a Statement of Defence. You or your lawyer must file your
Statement of Defence in the office of the Clerk of the TRIBUNAL
D’ARRONDISSEMENT DE LUXEMBOURG [LUXEMBOURG]. You or your lawyer
must also leave a copy of your Statement of Defence at the address for service
for the Plaintiffs named in this writ.
WARNING:
If you do not do both things within the time given, you may
automatically (by default judgment) lose the law suit. The Plaintiffs may get a
Court judgment against you if you do not file, or do not give a copy to the
Plaintiffs, or do either thing late.
Address for Service of the Defendant will be:
1.
Mr. Klaus Mønsted Pedersen: 13, rue Edward Steichen, P.O. Box 173,
2011 Luxembourg.
-------------------- --------------------
Katalin Baranyi Herman J Berge
PhD Scholar LLB
DATED in Luxembourg this 20th
day of May 2011; delivered by fax and mail by the Plaintiffs whose address for
service is Mr. Herman J Berge and Ms Katalin Baranyi, 665 rue de Neudorf, L-2220 Luxembourg.