Dispensing with court action in return for a monetary charge according to section 153a German Code of Criminal Procedure.
The provision of § 153a German Code of Criminal Procedure has in the meantime obtained great importance in business criminal law. The paragraph was included in the German Code of Criminal Procedure in 1974 and was originally intended for the effective handling of offences of low and medium level seriousness. The preliminary climax of the development down to being a multi-purpose weapon for handling a trial could be the ending of the criminal trial against Formula 1 manager Bernie Ecclestone. In August 2014, the court proceedings against Ecclestone before Munich County Court for the suspicion of bribery were dispensed with as per § 153a German Code of Criminal Procedure in return for a payment of 100 million dollars (about 75 million euros). Whereas Ecclestone’s defence lawyer, Dr Sven Thomas from Düsseldorf, described the procedure as “fully normal”, voices in the public speaking of a “scandalous ticket to freedom” or of a “obscene” privileging of rich defendants became loud.
1. Requirements for dispensing with court action
Closing court action pursuant to § 153a German Code of Criminal Procedure is possible at any stage of proceedings, i.e. both during pre-trial proceedings and during the main trial. If court action is dispensed with as early as during the preliminary investigations, in the case of a minor offence, this can be done by the prosecution as the body in control of the preliminary investigations without the court’s consent. In the case of more serious criminal charges or after being dispensed with after arraignment, the court’s permission is required. Of great significance for many defendants is the fact that a dispensation is possible after being criminally charged without a public trial. The loss of social standing or the embarrassment that can be connected to a public trial with some defendants can thus be avoided in this way.
The requirement for closing a trial in line with § 153a German Code of Criminal Procedure is that merely a so-called “offence” is being charged. According to the legal definition, this is a crime for which no more than a 1-year imprisonment is foreseen in the statutory range of punishment. To the extent that, according to the German Criminal Code, a minimum penalty of one year or more is ordered (this is the case mainly for severe criminality such as robbery, murder or sexual harassment), the law speaks of a “crime”. The scope of application of the provision of § 153a German Code of Criminal Procedure is thus in principle instituted for both the typical cases of petty crimes (shop-lifting, Internet fraud or the fraudulent acquisition of services – fare dodging) and for offences that play a role in connection with business crimes (including the likes of bribery, embezzlement or tax evasion).
Differently to dispensing as per § 153 German Code of Criminal Procedure, in the scope of § 153a German Code of Criminal Procedure, the defendant is given conditions and instructions. These can be the likes of cash payments to non-profit organisations or to the state, but also victim-offender mediation, maintenance payments or certain courses. In practice, a case is dispensed with in most cases in return for the payment of a monetary fine.
The condition or instruction should be suitable for “removing the public’s interest in criminal prosecution”. In addition to that, according to the wording of the law, the “seriousness of guilt” must not conflict a corresponding closure of proceedings.
The defendant’s consent is always required for dispensing in return for a monetary charge. He usually also has to bear the costs of the proceedings. If consent is given, the process of dispensing takes place in two stages. First of all, there it is merely dispensed with temporarily. If, after a certain period, all conditions and instructions have been fulfilled, the court ation is then finally dispensed with. It can now only be re-opened under particular circumstances, something that almost never happens in practice. If the defendant does not fulfil the conditions within the period specified (this can take up to six months, in exceptions even up to nine months), the trial is continued.
2. Consequences of dispensing
After finally being dispensed with, no entry is made into the Federal Central Criminal Register. One is officially regarded as having ”no criminal record” – in dubio pro reo still applies. Even incidental legal consequences under criminal law, such as, for example, consequences at work, can usually not be expected in the case of closing the case pursuant to § 153a German Code of Criminal Procedure.
According to rumours, the avoidance of incidental legal consequences in the Criminal Records Bureau (Federal Central Criminal Register) in the Ecclestone case was the background for the exorbitant amount of money the Formula 1 manager agreed to. If he had been found guilty of a wilful corruption crime, according to the strict international regulations on corruption, he would have risked losing the multi-billion Formula 1 licences.
Even in trials against accredited professionals, i.e. in particular doctors, pharmacists, lawyers or tax advisors, dispensing with it pursuant to § 153a German Code of Criminal Procedure is frequently the defence’s goal, for in such cases, the risks and secondary effects of a criminal trial conducted in public are often much more serious than the actual consequences under criminal law of a monetary penalty or a suspended sentence.
3. Who blackmails whom?
In terms of the legal system, dispensing with court action in return for a monetary charge represents a suppression of the so-called principle of the mandatory prosecution of offences. This means that, in contrast to actually intended by law, the prosecutor and/or court are given a further scope of discretion. The legislator and legal practice have long bid farewell to the ideal that every crime is to be solved and prosecuted where required.
If you presume that the facts of all cases can solved in legal times, each time court action is dispensed with in return for a monetary charge, this represents a capitulation of law. De facto, in this way of proceeding, the stronger party will always assert themselves. Those in the right and what is right will remain open in the outcome.
In the end, who blackmails whom depends on chance.
During the course of the preliminary investigations or after hearing the evidence in a main trial, if it turns out that witnesses are not reliable or if evidence the prosecution first believed to be sound starts to crumble, the proposal by the investigating authorities to dispense with court action in return for a monetary charge is frequently a capitulation of the prosecution. The same applies if legal errors are made at the beginning of the court action and, upon closer consideration, an act is not even punishable by law.
In all of these constellations, a defendant is faced with the decision of taking the chance of a long and expensive fight or biting the bullet to accelerate the probable dispensing with of the court action by paying a monetary charge in any case.
Nobody is obliged to engage in a course or maintaining justice.
Many doctors in the Wuppertal gynaecologists trial for example felt exposed to a factual compulsion to pay monetary charges. Although shortly after the proceedings were instituted it turned out that the acquisition of foreign contraceptives was most probably not a crime in legal terms, the prosecutors who had already instituted preliminary investigations all over the country, did not concede. Instead, they held a pistol to the doctors’ heads along the lines of “either you pay or your not guilty verdict will cost you a lot of money”. In view of the fact that at court like out on the open sea you are always in God’s hands and a finalising legal clarification was a far distance away, many of the doctors decided to be driven into the corner to pay. For a gynaecologist in the country, solely the conducting of a public trial in which all patients may have to give evidence at witnesses would be on a par with a civil death sentence – even if the trial ends with a not guilty verdict. The prosecutors were fully away of their pressure potential and generated more than 1.6 million euros in monetary charges in this way.
However, pressure can also be applied in the other direction. In business criminal trials, courts are frequently exposed to huge piles of files and confusing numbers. One presumes there must be “some truth in it”. The constitutional solving of complex facts of a case, however, would require significant resources of the justice system. The defence would be able to avail of a variety of means of attack by naming further witnesses, making clever applications for evidence or the assertion of procedural rights – all potential sources of mistakes on the long path towards a legally binding decision.
A well-prepared and forceful defence team looks for the right moment in such a situation to propose to the court dispensing in return for a monetary charge. This request frequently leads to the desired success. The defendant is than more than happy to pay the monetary charge, as this option is usually the less costly one for him, too, than the performance of a drawn-out trial. He not only spares a loss of reputation and a part of his lifetime but also lawyers’ fees and losses of earnings.
4. Efficiency as a legal principle?
From a constitutional state’s point of view, the question is posed as to whether the idea of justice is being satisfied if more and more court actions are being dispensed with without having clarified in the end what is actually correct.
The problem is intensified by there being no judicial monitoring within the scope of dispensing with court action pursuant to § 153a German Code of Criminal Procedure. There is neither an absolute upper limit for monetary charges nor a compulsion to form or reasoning. Victims affected have no legal protection and even those who prematurely consent to dispensing with court action in return for a monetary charge cannot demand the money back even it turns out later that the charges against him were no crime at all.
Recently, the number of voices is increasing to contain at least the uncontrolled use of the dispensing with option by introducing compulsory reasoning, which, in extreme cases would enable monitoring through further instances.
One can, however, interpret the phenomenon of dispensing with court action, which happens in a quasi “rights-free area”, completely differently. To do so, you need to disassociate yourself from the idealistic notion a process is clearly either good or bad, right or wrong – and thus punishable or not. Legal practitioners dealing with people in real life frequently perceive things differently.
Taxation layouts that were considered permissible for years on end sometimes become crimes from one day to the next on the basis or a new assessment or the particular relentless persecution of individual investigators. Relations that used to be considered the most important thing of successful nosiness activities are now under the suspicion of corruption. Judges and prosecutors to whom it was logical to make procedural agreements about the possible and impossible for centuries on end, are suddenly under the suspicion of perversion of justice according to the amended version of § 257c German Code of Criminal Procedure and the judgement by the Federal Constitutional Court on the permissibility of agreements in a criminal trial. And your normal citizens who, for decades, didn’t think twice about downloading an mp3 file from the Internet or to stream videos now suddenly see themselves exposed to the suspicion of a punishable breach of copyright.
Reality is mostly colourful. Only in the rarest cases is the truth black or white.
From a defence lawyer’s point of view, the actual injustice of many a trial taken to the bitter end consists of the judgement conveying the illusion that complex facts of a case can be broken down into simple categories of “guilty” or “not guilty”. The judges frequently succeed in the illusion of this simplification by presenting the reasons for the judgement regarding complicated facts of the case either briefly or biased – with the consequence that it is difficult to impossible for the defence team to ensure effective control in the stage of appeal.
5. Conclusion
Legal policy and philosophical discussion about whether there is such a thing as “the right justice” and, as a partial aspect of that, to what extent dispensing with court action in return for monetary charges can and may endure in a constitutional state is long not over.
As long as the “right of the stronger party” plays a much greater role in reality than is commonly accepted, it is the defence team’s task to prepare a position of strength for their own client and to make the best of it at every stage of the trial.
