Middelhoff Case

German Justice Sparks Scrutiny

Crime and punishment. Source; DPA
Crime and punishment.
  • Why it matters

    Why it matters

    Germany is debating the merits of Mr. Middelhoff’s immediate jailing after being convicted of embezzlement and tax evasion.

  • Facts

    Facts

    • Thomas Middelhoff was convicted in November in a court in the city of Essen of charges in connection with his actions while employed by German retailer Arcandor.
    • The case is under appeal but the former chief of German media giant Bertelsmann remains in custody.
    • Green party politician Renate Künast and author Jürgen Todenhöfer are among those taking up his cause.
  • Audio

    Audio

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Thomas Middelhoff, the ex-boss of media giant Bertelsmann and retailer Arcandor, uttered two sentences on November 14 right after he was convicted of multiple counts of embezzlement and tax evasion and sentenced to three years’ imprisonment: “My brother killed himself. Don’t worry about me.”

His words seemed full of portent at the time and have since been discussed throughout Germany. The two sentences that turned the fate of Mr. Middelhoff, 61, became the subject of long articles and analyses ― just as when he was the high-profile executive of leading Germany companies.

Because of the alleged danger that he would attempt to flee, judge Jörg Schmitt sent Mr. Middelhoff directly to jail ― and because of the danger of suicide, he was monitored intensively. Was that chicanery? Was it revenge against a fallen millionaire who has since filed for bankruptcy, or an assertion of the vengeful claim to justice by 50 creditors? Was it the case of a deliberate demystifying of a towering business figure, who always thought in the dimensions of gigantic deals and never in the category of humility?

From another standpoint: Has there been a miscarriage of justice and unacceptable treatment of the man in Essen penitentiary, a man who for weeks was monitored at night every quarter hour? Light on, shutter open, arms raised, light out, shutter closed?

The former judge Jürgen Todenhöfer, a business associate of Mr. Middelhoff, believes it is a scandal of justice. He considers the sentence to be excessive ― the punishment for billing private charter flights to Arcandor and Mr. Middelhoff making the company pay for a book published to honor his mentor Mark Wössner. The damages cited by the court amounted to somewhat more than half a million euros.

“It may be that Middelhoff seems arrogant to people who don’t know him,” said Mr. Todenhöfer, who at various times has been an author, politician, media spokesman and business executive. “But arrogance is not punishable.”

He said he believes the maximum punishment in Mr. Middelhoff’s case should have been a fine, and German judges should not be permitted to issue a “surprise verdict.” Mr. Todenhöfer, who was once a board member at German company Hubert Burda Media, considers the conditions in jail to be “likewise excessive.”

“In the case of the life-affirming, overly optimistic Middelhoff, the claim of the danger of suicide ― in contradiction of the opinion of the prison doctor ― is almost absurd. There was no psychological expertise submitted to counteract the diagnosis of the prison doctor. The judge, Jörg Schmitt, who is known to be authoritarian, apparently didn’t consider it to be necessary. What an insolent presumption!” Mr. Todenhöfer said.

The ministry of justice in the state of North-Rhine Westphalia has a different view. “After the verdict, Mr. Middelhoff fell long and hard, and he expressed thoughts of suicide; he stated officially that his brother had killed himself. Moreover, his wife also requested that an eye should be kept on him,” said ministry spokesman Detlef Feige.

In fact, the decision of the judge was well-founded, Mr. Feige said. Without constant monitoring, the risk of a suicide attempt was “simply too great.” In such cases, North Rhine-Westphalia initiates “frequent monitoring by personnel,” which have proven to be successful. Since the 1990s, the number of suicides has fallen distinctly. “In peak years, 29 prisoners took their lives; in each of the last three years, it was 11.”

Mr. Middelhoff refused to share a cell with anyone else, preferring to be alone in a tiny space.

Several independent experts also consider the procedure at the prison to be justified.

“Especially when there has already been a suicide in the family, a close monitoring is not unusual,” said Petra Gerken-Wolf, assistant head of the Federation of Prison Staff in Germany. The type of monitoring, however, depends on the specific circumstances in the prison. In Bremen, where Ms. Gerken-Wolf works, monitoring is possible only by opening the cell door, which creates lots of noise. “Whoever doesn’t want that can be monitored in a special room by a camera.”

The case of Mr. Middelhoff, the fate of what Stern magazine called the “former miracle manager”, has drawn so much attention that even the details of the punishment are suddenly playing a role. Light is being shed on a world usually kept from view.

Criticism even comes from accredited penal experts who decry the lack of a proper balance between the fundamental rights of the prisoner and a possible danger of suicide.

“It is highly unusual that someone like Middelhoff, who apparently was or is not mentally ill, was so frequently monitored over a period of four weeks,” said Tobias Pretsch. He is a lawyer in the Munich firm of Ufer Knauer and was involved for several years in the administration of the Stadelheim prison.

Mr. Pretsch also advises the ex-president of the Bayern Munich soccer team, Uli Hoeness, who is serving time at Landsberg Prison after being convicted of tax evasion. There is also public outcry about Mr. Hoeness’ situation. “From my point of view, there would have been better alternatives to checking the prisoner every 15 minutes ― for instance, putting him in a cell with another prisoner,” Mr. Pretsch said.

Mr. Middelhoff, however, refused to share a cell with anyone else. He preferred to be alone in a tiny space sized only four by two paces.

A “clear violation of human rights” is how Green party politician Renate Künast, head of the committee on legal affairs in the Bundestag, sees the monitoring of Mr. Middelhoff. From her point of view, it would have been appropriate to waive enforcing the sentence of imprisonment and to simply require Mr. Middelhoff to appear regularly before authorities.

A case for Amnesty International? Ms. Künast: “I could also imagine an electronic shackle (monitoring device) in order to counter the danger of flight. I am not an advocate of this method, but in cases such as this it would be a sensible, less severe method.”

 

Middelhoff rise and fall

 

“Scandalous torture through weeks of sleep denial is unworthy of a modern state ruled by law,” Mr. Todenhöfer said. “This is a practice for Guantanamo, not Germany.”

In his view, a family man such as Mr. Middelhoff, who allowed his parents to live on his own premises in Bielefeld in order to care for them, would not abandon his wife and five children in order to flee to China, where he had set up a holding company.

The judge “wanted to break Middelhoff ― he shouldn’t be proud of that,” Mr. Todenhöfer said. “Inside, Middelhoff had long ago been broken by his numerous defeats, even if he didn’t show it, precisely because beneath his loud, life-affirming shell there is a sensitive, pensive and also self-critical individual.”

Apparently, the judge couldn’t imagine that, but he certainly had cause to wonder why Mr. Middelhoff submitted an invalid passport in court, shifted his official residence to France, and bragged he had foiled a snooping photographer by making a leap from the roof of the court building “like a cat.”

Mr. Middelhoff, a former New York Times board member, lost first his fame, then his money, then his honor and finally his health. There will soon be a review of the remand in custody. The issue has become a focus of public attention.

At the moment, prisoner number 173/14/1 is in the university hospital in Essen. The four weeks of monitoring would have made him ill, his lawyers said. The diagnosis is chilblain lupus, a rare autoimmune disorder. Blue spots, dying tissue, a loss of equilibrium. Mr. Middelhoff has lost more than 10 kilograms, or 22 pounds. He is being moved around in a wheelchair. A medical expert cites the danger of permanent damage.

Mr. Middelhoff’s wife, Cornelie Middelhoff, is fighting for an end to her husband’s imprisonment. She has asked the ministry of justice for better medical care and warned of  her partner’s health problems.

Mr. Middelhoff’s lawyers dispute the version offered by the ministry of justice. “In the initial examination, the doctor found that there was neither depressive behavior nor a danger of suicide. The supposed explanation of Mrs. Middelhoff is dated — independently of whether it ever occurred — from March 2015,” lawyer Sven Thomas said. A public prosecutor could investigate what happened during Mr. Middelhoff’s arrest, Mr. Thomas said.

The National Office for the Prevention of Torture has gotten involved. Agency member Rainer Dopp said: “We have been prompted by the discussion concerning Mr. Middelhoff to submit an inquiry to the state ministry of justice concerning its practice with regard to suicide-danger monitoring.”

Were excessive measures taken here? Somehow, said former judge Mr. Todenhöfer, the case of Mr. Middelhoff “should be brought back into order by a self-respecting state.”

 

To contact the authors: jakobs@handelsblatt.com, keuchel@handelsblatt.com and votsmeier@handelsblatt.com

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