If Jürgen Fitschen knew what was coming, he didn’t show it. Deutsche Bank’s co-chief executive appeared in a panel discussion at the „Day of German Industry“ in Berlin on Wednesday, discussing the image of the financial sector at approximately the same time that newswires flashed the news that he had been publicly charged with making misleading statements before court.
Perhaps this is because he knew what was about to happen. The fact that Mr. Fitschen and four other former executives have been indicted for their role in the long-running case surrounding the collapse of Leo Kirch’s media empire has long been known by the bank. The decision by Munich prosecutors to move forward was already reached in August, according to Handelsblatt sources, but they couldn’t publicly release the charges until all parties acknowledged they had received the 627-page indictment.
This point was finally reached on Wednesday. State prosecutors in Munich have now set the stage for what could be the most spectacular trial in the history of Germany’s financial sector. Former chief executives Josef Ackermann and Rolf Breuer, as well as former board members Clemens Börsig and Tessen von Heydebreck could also be brought to trial. Deutsche Bank, Germany’s largest bank, could also face a fine.
Munich-based judge Peter Noll will now have to decide whether to bring the matter to trial. Experts say a decision is not likely until next year – defendants have six weeks to make their own statements to the court and could well get an extension given the case’s complexity. But the judge on the case has not shirked away from bringing high-profile cases to trial in the past. He recently made headlines by presiding over the trial of Formula 1 boss Bernie Ecclestone.
It is unlikely that prosecutors would file formal charges if they didn’t believe the case could move to trial. Legal guidelines for the presiding judge are that there has to be about a 50-percent chance or more that the defendants could be convicted in order to bring the case to court. In practice, experts said it is rare that such cases are not pushed to trial in Germany.
“If charges are done even half-way decently, then there is much to speak for them being granted,” said Matthias Casper, professor of banking law at the University of Münster.
Of course, Mr. Fitschen remains innocent until proven guilty. That means he is likely to hold onto his job as Deutsche Bank co-CEO, together with Anshu Jain, at least for now. Mr. Casper noted that Germany’s banking regulator, BaFin, is extremely unlikely to seek Mr. Fitschen’s dismissal unless there is a verdict. After all, BaFin did not move against Mr. Fitschen’s predecessor, Josef Ackermann, when he stood trial 10 years ago over the takeover of telecoms firm Mannesmann by Vodafone.
Mr. Fitschen has insisted he did nothing wrong, and Deutsche Bank in a statement said it is confident that the charges “will be proven unfounded.” But the case nevertheless marks a heavy personal blow for Mr. Fitschen, who came to the helm in 2012 promising to clean up the bank’s reputation. Instead, these new charges over the Kirch affair will be added to a series of ongoing legal disputes for the bank, ranging from the manipulation of currency benchmarks to ignoring U.S. sanctions.
The indictment also extends what has already been one of Germany’s most acrimonious court disputes.
The bank and its executives denied the charges in court, but settled earlier this year for €925 million ($1.24 billion).
It all began when former Deutsche Bank chief executive Breuer in 2002 questioned in an interview whether media firm Kirch Group could pay its bills. Three months later the company filed for insolvency. Founder Leo Kirch suspected Mr. Breuer’s comments were pre-meditated as the bank hoped to profit from the ensuing insolvency, and he filed a claim for damages against Mr. Breuer and Deutsche Bank. The bank and its executives denied the charges in court, but settled earlier this year for €925 million ($1.24 billion).
In the indictment, the prosecutors note that Mr. Fitschen, who testified in 2011, did not make “conclusive” remarks that could be deemed as making false statements. But they argue that as co-CEO, Mr. Fitschen had a responsibility to correct the statements of his fellow board members and Deutsche Bank’s lawyers if they were lying.
With his careful words, “he thereby wanted to avoid making false statements that could have been proven by the state court in Munich. At the same time, he also did not want to torpedo the defense strategy by making a clear statement,” the prosecutors argued. As further documents later emerged suggesting the bank had made false statements to the court, the prosecutors argued Mr. Fitschen and Mr. Ackermann continued to remain silent.
The trial is certain to unfold over a mountain of evidence. Aside from the 627-page indictment, which includes 516 pages of investigative findings, Mr. Fitschen and his lawyers are likely to submit a series of DVDs full of their own scanned-in evidence.
Kerstin Leitel is a Handelsblatt editor. She covers banks and insurances from the Munich office. Peter Köhler is a Handelsblatt Frankfurt correspondent and leads the banking team. Christopher Cermak is an editor at Handelsblatt Global Edition and covers the financial world. Contact the authors: firstname.lastname@example.org, email@example.com and firstname.lastname@example.org