Resolution Conflict

Plea Bargaining, a Fixture in U.S. Courtrooms, Comes to Germany

ecclestone1
Formula One boss Bernie Ecclestone exits a Munich state court Aug. 5 after agreeing to pay $100 million on bribery and breach of trust charges in exchange for no prison time.
  • Why it matters

    Why it matters

    The Ecclestone case signals a shift in Germany toward approving more financial settlements in corporate fraud cases.

  • Facts

    Facts

    • Bernie Ecclestone, the Formula One chief, paid $100 million to Bavaria to settle a corruption case.
    • Understaffed public prosecutor’s offices are being forced to approve more settlements to handle case loads.
    • The trend toward settlements could be used by other German executives to end troublesome investigations.
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    Audio

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Formula One boss Bernie Ecclestone ended his criminal trial in his own way.

Immediately after leaving the court building in Munich, he sat down in his attorney’s black Mercedes, calmly reached for his mobile phone and issued instructions to his bank to transfer $100 million (€75 million) to the Bavarian state treasury. A short time earlier, he had said goodbye to Manfred Nötzel – the head of a section of the Munich public prosecutor’s office, which had indicted him on bribery charges – with a friendly handshake.

The scene is emblematic of the new approach to criminal justice in Germany, a system in which the focus has shifted from public trials to backroom deals. The outcome of criminal cases is increasingly determined in pre-trial settlement negotiations. Particularly in complex cases, public prosecutors and judges are agreeing to settlements that abbreviate proceedings to an alarming degree.

Proceedings that are discontinued in accordance with Section 153a of the German Code of Criminal Procedure are a case in point. In these instances, the court terminates the proceedings in return for the payment of a fine, due to “minimal culpability.” And then there are the “real” deals, which permit the promise of a reduced sentence in return for an early confession.

But criminal investigators are not resorting to these tools without reason. German public prosecutors are under great stress in an overloaded justice system. Egbert Bülles, a retired chief prosecutor in Cologne and a former chief investigator for organized crime, even sees the deals as a form of self-defense.

“The judiciary in Germany has taken a vow of poverty. We are so short-staffed in every respect that we’ll grasp at any straw to shorten a proceeding,” says the 68-year-old. The country’s top business executives – from A as in (former Deutsche Bank CEO Josef) Ackermann to Z as in (former Deutsche Post CEO Klaus) Zumwinkel, who were both the focus of criminal probes – are among those who benefit from the overloaded judicial system.

“If you want law and justice, you need a well-equipped judiciary.”

Heiko Maas, Justice Minister

A look behind the scenes at German public prosecutor’s offices highlights the real reasons for the increase in deals in the courtroom — the economizing of the justice system.

Take for instance the Stuttgart Public Prosecutor’s Office, Department IV for Criminal Business Matters, Unit 18, Room 229. The office is at the end of a hallway. Well-known criminal defenders, experts and executives from companies like Daimler, Volkswagen and the hypermarket chain Kaufland have frequented the office.

Homemade calendars decorate the yellowed walls, the bookcases are made of birch veneer and the floors are gray PVC. Still, this is no ordinary government office. Instead, it’s one of the backrooms where deals worth millions are hammered out between investigators and defendants. It’s the office of Chief Prosecutor Andreas Thul, 58, the head of the department and the master of the deals that are made there.

Notebooks, binders and boxes are stacked everywhere. Mr. Thul’s department investigates profiteering and human trafficking, social insurance fraud and business corruption. The cases involve serious and complex crimes – and usually sums in the millions of euros. His employees have to be “hundred thousand-euro prosecutors,” said Thul. In other words, part of their job is to pick the complex cases and weed out the smaller ones. It’s the only way the office can operate successfully.

Unit 18 of the Stuttgart Public Prosecutor’s Office received 1,446 cases in 2013. During the same period, the prosecutors handled a similarly large number of older cases. The stacks of files never shrink. In addition, the prosecutors regularly appear in court and accompany the police during raids. Thul’s department does all of this with eight prosecutors, including two legal advisers. To make matters worse, the office has trouble keeping staff.

“Turnover is a big problem. Criminal business cases are usually highly complex. This becomes deadly when you constantly have to bring new prosecutors up to speed,” said Mr. Thul.

“If you want law and justice, you need a well-equipped judiciary,” Justice Minister Heiko Maas, a member of the center-left Social Democratic Party, said in April. But that’s easy for him to say, because the states and not the federal government are in charge of the judiciary.

In state governments, however, the chronic staffing shortage in the court system is apparently no longer a priority. “In many state cabinets, justice ministers have long been seen as marginal figures without political influence,” said Christoph Frank, chairman of the German Judges’ Association.

The result is that state budgets for the judiciary have not been increased and, in some cases, have even been cut. Even in cases where funding seems to be increasing, only a small amount of it is earmarked for staffing needs. The lion’s share of the money goes to reimbursements for the expenses of attorneys, experts and witnesses paid by courts as the number of cases increases. Plea bargaining is seen by many as the only way out.

Translated by Christopher Sultan

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