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.