Accueil Revue Numéro Article

Revue internationale de droit pénal

2003/1-2 (Vol. 74)

  • Pages : 658
  • ISBN : 2-7492-0064-4
  • DOI : 10.3917/ridp.741.0071
  • Éditeur : ERES


Article précédent Pages 71 - 92 Article suivant

I. Criminological Data

1

In official German crime statistics, corruption plays a very minor role. In 2001, police were informed of

2

One can be certain that these statistics cover only a small percentage of actual bribery cases, but the size of the dark figure is unknown. Media reports indicate an increase in bribery activities in recent years, but it is not clear whether the perception of growth mirrors an actual increase of criminal conduct in this area or is only a function of greater public awareness raised by singular spectacular cases [2][2] See Dölling, Gutachten C zum 61. Deutschen Juristentag,.... One indication of the lack of validity of police statistics with respect to the true development of the corruption phenomenon is the fact that crime statistics show a 47% decrease in passive bribery between 2000 and 2001 [3][3] Source : Bundeskriminalamt, Polizeiliche Kriminalstatistik... - a figure which can only be the result of a random deviation in reported offenses.

3

Court statistics show an even lesser « official » significance of corruption cases. In 2000, German criminal courts adjudicated

  • 169 public officials for passive bribery (including all cases of aggravated bribery), 121 of whom were convicted,

  • 239 persons for active bribery of public officials, 201 of whom were convicted,

  • 33 persons for active or passive bribery in business relations, 26 of whom were convicted [4][4] Source : Statistisches Bundesamt (ed.), Rechtspflege....

4

Official and scientific interest in domestic and international corruption has certainly increased since 1990. Significant steps were the passing of the Corruption Combat Act (Korruptionsbekämpfungsgesetz) of Aug. 13,1997, which enlarged the scope of criminality, as well as the extension of the prohibition of active bribery to officials of the European Communities and generally to foreign officials involved in business relations, by two laws passed in 1998 [5][5] EU-Bestechungsgesetz of Sept. 10,1998 (BGBl. II 2340).... The activities of Transparency International have also contributed to raising the German public’s awareness of the problems connected with international business corruption [6][6] See, e.g., the comprehensive multidisciplinary volume....

II. Basic Structures of the Criminal Law on Corruption

1. Bribery of Public Officials

a) Passive bribery

5

Possible offenders of passive bribery are public officials (Amtsträger) and persons specifically mandated with carrying out public functions (§ 331 PC). § 11 I Nr. 2 PC defines as a public official

  • any public servant or judge,

  • anyone in another official position of public service [7][7] E.g., a member of the cabinet or a notary public; see...,

  • anyone who is otherwise entrusted, by a public agency or any other entity, with performing functions of public administration, regardless of the form of organisation elected for the performance of the public function.

6

The last part of the definition of public official, modified by 1997 legislation, is meant to cover the growing area of « privatized » administration, e.g., communal energy or public transportation providers organized in the form of commercial business companies totally or largely owned by the state. Bribery provisions are meant to cover employees of such entities to the extent their functions are still regarded as « public », or, as the Federal Court of Appeals (Bundesgerichtshof) put it, when the organisation in question appears as the « extended arm » of the state [8][8] Entscheidungen des Bundesgerichtshofes in Strafsachen... . Only when a formerly public function has been privatized as such (e.g., in Germany, telecommunications) and has been opened to unlimited commercial competition do the provisions on bribery of public officials no longer apply [9][9] For details and examples, see Dölling (n. 2), pp. 54....

7

Members of parliament and party officials as such are not covered by the definition of « public official ». For members of a Federal or State parliament, there exists however a special penal provision prohibiting the buying or selling of votes (§ 108e PC).

8

German law distinguishes between simple and aggravated cases of active and passive bribery. Simple bribery (Vorteilsannahme, § 331 PC) consists in demanding or accepting any advantage « for providing public service ». In this case, the parties need not envisage any (legal or illegal) specific act to be performed by the public official. It is even criminal for a public official to accept an advantage ex post facto for services rendered. Aggravated bribery (Bestechlichkeit, § 332 PC), on the other hand, presupposes an agreement on a specific act of public service to be performed (or having been performed) in exchange for an advantage demanded or accepted by the public official [10][10] The same requirement of specificity applies to passive...; performance of this act must be in violation of the official’s duties.

9

The « advantage » demanded or accepted by the public official is defined broadly by German courts. It need not consist in money or other material goods; even satisfaction of the public official’s ambition is sufficient [11][11] See Cramer, in : Schönke/Schröder, Strafgesetzbuch,.... According to the wording of the statute, the advantage can also be given to a third person. One should expect, however, that the third person’s advantage is somehow related to the interests of the public official (e.g., when a gift is given to the official’s spouse). Cases in which a citizen promises to make a donation to a charity in response to some service rendered by a public official, or cases of sponsoring of scientific or social causes connected with a public agency do not meet the purpose of the prohibition (i.e., to keep the private and public spheres separate) and should therefore not be regarded as criminal [12][12] See Cramer, in : S/S, § 331 note 53a; Korte, Neue Zeitschrift....

10

The act of passive bribery consists in demanding, accepting a promise of or receiving any advantage for providing public service (simple bribery) or for the illegal performance or non-performance [13][13] § 336 PC specifically provides that non-performance... of a specific illegal act (aggravated bribery). Since the mere utterance of a demand by the public official already constitutes (completed) bribery, it is not necessary for punishability that the public official keep his part of the illicit deal. The Federal Court of Appeals even upheld a conviction for bribery when the public official never planned to perform the act expected of him but only feigned his readiness to do so [14][14] BGHSt 15,88 at 97 (1960)., and § 332 III PC clearly indicates that this is the correct interpretation of the law [15][15] § 332 III reads : « If the offender demands, accepts.... According to the Federal Court of Appeals, it is sufficient for conviction that the public official shows his readiness to accept an advantage although he later pays for the goods from his own funds [16][16] See BGH Neue Zeitschrift für Strafrecht - Rechtsprechungsreport.... Because the act of bribery has been extended far into the early stages of a corruptive agreement, the German legislature has not found it necessary to penalize mere attempts.

11

A public official may accept a gift for the (lawful) performance of public service if the appropriate public agency - usually the agency that employs him, or an agency supervising this agency - , within its authority [17][17] There exist different views as to whether an unlawfully..., gives him permission to do so either before or immediately after the transaction (§ 331 III PC). Beyond that, German law has no special provision exempting minor gifts from punishability. However, there is general agreement that socially accepted customs (e.g., giving a small gift to the postman for New Year’s) are not unlawful; some writers employ the doctrine of « social acceptance » (Sozialadäquanz) to reach this result [18][18] See Dölling, ZStW 112 (2000), p. 344; Jescheck, in :.... It should be noted, however, that rules of social politeness by themselves do not provide a justification for public officials’ acceptance of gifts, and that there is a general tendency of administrative agencies to tighten the rules with respect to « customary » gifts.

12

As far as complicity is concerned, the general rules as to instigation (§ 26 PC) and aiding and abetting (§ 27 PC) apply. The person offering or giving the bribe, however, is not treated as a mere accomplice - which would lead to a mitigation of punishment under § 28 I PC [19][19] § 28 I PC provides that an accomplice in an offense... - but as a principal of the offence of active bribery. In cases of simple bribery (§§ 331 and 333 PC), the penalties for passive and active bribery are the same; in cases of aggravated bribery, the minimum penalty for passive bribery is six months imprisonment (§ 332 I PC), for active bribery it is only three months imprisonment (§ 334 I PC). If a person acts as a go-between and thus supports both the giver and the taker of the bribe, it is difficult to decide whether he should be punished for aiding and abetting active or passive bribery, or both. Strangely, the offender in this situation is treated more leniently (because of § 28 I PC) if he is regarded as an accomplice (only) in passive bribery [20][20] Cf. Rudolphi, in : Systematischer Kommentar zum Strafgesetzbuch....

13

A mere conspiracy to commit bribery is not punishable because bribery is not a felony (cf. § 30 PC).

14

Passive bribery is punishable by fines or imprisonment up to 3 years (simple bribery) or 5 years (aggravated bribery) [21][21] For results of an empirical study on sentences imposed.... In especially aggravated cases, the penalty is imprisonment between 1 and 10 years (§ 335 I PC). Typical examples of especially aggravated cases are (§ 335 II PC):

  • The offender seeks or obtains extensive advantages;

  • the offender continually demands and receives advantages in exchange for his readiness to illegally perform certain acts of public service;

  • the offender acts for continuing gain (gewerbsmäßig) or as a member of a gang formed to commit bribery.

15

A conviction for bribery does not per se lead to expulsure from public office. However, the court can impose loss of the public office as an additional punishment when it sentences the official to imprisonment of six months or more for aggravated bribery (§ 358 PC). Moreover, public service law provides that any public servant convicted of an intentional offense and sentenced to one year imprisonment or more automatically loses his office [22][22] See § 24 Beamtenrechtsrahmengesetz, § 48 Bundesbea....

16

Illicit gains, i.e. any material advantage the public official may have received as a bribe, can be confiscated according to § 73 PC. According to § 338 PC in connection with § 73d PC, money and other objects in the possession of a convicted offender of certain forms of aggravated bribery [23][23] The provision extends to active and passive bribery... can be confiscated if there is sufficient cause to assume that the money or objects in question stem from the offense adjudicated or a similar offense [24][24] As to the high standard of proof required, see BGHSt.... This provision is an indication of the fact that the legislature regards these aggravated forms of bribery as possibly linked to organised crime, because the sanction of « extended confiscation » (§ 73d PC) has been specifically designed as a tool of depriving organised crime of its resources.

17

The period of limitations for bribery is five years (§ 78 III Nr. 4 PC). The period of limitation begins to run when the offense has been completed (§ 78a PC). In bribery cases, completion occurs when each side has fulfilled its part of the illicit bargain, i.e., the advantage has been given and the public official has, in the case of § 332 PC, performed the act for which the bribe was intended [25][25] BGHSt 11,345 at 347 ( 1958); for an opposing view (completion....

18

Immunity extends only to members of the Bundestag (Federal parliament) (art. 46 Federal Basic Law). Their immunity can be waived by the Bundestag (art. 46 II Basic Law). In addition, art. 46 I Basic Law provides that no member of the Bundestag may be prosecuted for his voting (indemnity). Selling of votes, as made punishable by § 108e PC, is however not covered by indemnity because the criminal act is not the casting of the vote but the prior act of accepting money or other advantages for voting in a certain way [26][26] Cf. Eser, in : S/S, § 108e note 1..

b) Active bribery

19

Any person can be a perpetrator of active bribery. German law does not provide for criminal liability of legal persons, but such entities can be sentenced to pay an administrative fine if a natural person in a position of responsibility has committed an offense in violation of the legal person’s legal duties or the offense has lead to enrichment of the legal person (§ 30 Gesetz über Ordnungswidrigkeiten).

20

The definition of active bribery in §§ 333,334 PC mirrors the definition of passive bribery treated above. The prohibited act of active bribery consists in offering, promising or providing any advantage to a public official; in the case of simple bribery (§ 333 PC), the advantage is offered or granted merely for providing public service (in the past or in the future); in the case of aggravated bribery (§ 334 PC), the advantage is directly linked to a specific illegal act of public service. As with passive bribery, verbally « offering » an advantage suffices for completion of the offense; one can thus be punished for bribery even if the public official ignores or immediately rejects the offer.

21

Criminal law does not provide for publication of convictions or for exclusion from public tenders as an additional sanction.

2. Bribery of Employees of Business Enterprises

22

Bribery in business relations is regarded as an offense separate from bribery of public officials [27][27] State employees can commit the offense of business... and is defined in § 299 PC as an offense against the freedom of competition. This provision also protects potential monetary interests of competitors [28][28] Heine, in : Schönke/Schröder, § 299 note 2; Tiedemann,... and, according to the majority view, the interests of the owner of the « passive » enterprise [29][29] Tiedemann, in : LK, § 299 note 6, with further ref.... It is not necessary for conviction, however, to prove an actual interference with competition - the abstract dangerousness of the conduct described in § 299 PC is sufficient for criminal liability.

a) Passive bribery

23

Possible offenders of passive business bribery are employees, including managers, and persons charged with acting on behalf of a business enterprise. The latter group comprises, e.g., business consultants or architects entrusted with making or preparing decisions for an enterprise [30][30] Tiedemann, in : LK, § 299 note 17.. The owner of an enterprise cannot perpetrate the offense.

24

The acts constituting passive business bribery have been formulated in parallel with the acts of passive bribery in §§ 331,332 PC : demanding, accepting the offer of, or accepting an advantage. The advantage must be related to a (future) specific activity of the employee, namely his giving preference to the briber or another person in connection with the acquisition of goods or commercial services in a competitive context. « Giving preference » is a broad concept that includes, e.g., accepting goods of substandard quality or making payments earlier than to competitors [31][31] Tiedemann, in : LK, § 299 note 31.. Providing business-relevant information exclusively to the bribing competitor can, in the appropriate context [32][32] E.g., when having this information enables the business..., also be a case of « giving preference ». The Code requires further that the preference to be given be « corrupt » (unlauter) - a concept which has given rise to differing interpretations [33][33] For discussions, see Heine, in : S/S, § 299 notes 19-20;.... The most plausible explanation is that any preference not based on the quality of an offer but influenced by a personal advantage given to the decision-maker is per se corrupt, so that the added requirement is in fact redundant.

b) Active bribery

25

Active bribery in business relations is defined, in § 299 II PC, in terms closely parallel to § 334 PC concerning bribery of public officials. The relevant acts are offering, promising or granting an advantage, and the underlying purpose must be the giving of preference to the briber or another person in commercial competition relating to goods or services. There is some dispute, however, as to whether any person can commit active business bribery. Although the Code does not limit the act of active bribery to a particular group of individuals, the majority view regards as potential perpetrators only competitors in the relevant market or persons acting on their behalf [34][34] For an extensive discussion, see Tiedemann, in : LK,.... Customers therefore cannot commit the offense.

26

The penalty for active as well as passive business bribery is a fine or imprisonment up to three years. In aggravated cases, the maximum penalty is imprisonment up to five years. An aggravated case exists, as a rule, when the offender has sought to obtain large advantages, or when he has acted for continual gain or as a member of a gang formed for the purpose of committing acts of this kind (§ 300 PC).

III. International Aspects

1. Extent of Protection and Application of German Law

27

The provisions against public corruption generally protect only the integrity of German public administration. They therefore do not generally extend to bribing a foreign official even if the act is committed by a German citizen and on German territory [35][35] Dölling (n. 2), p. 102; Eser, in : S/S, vor § 3 notes.... However, foreign nationals can be punished under German law if they bribe German public officials or members of parliament (§ 108e PC) even if the act is not committed on German territory (§ 5 nos. 14 and 14a PC).

28

The situation is more complicated with respect to business corruption. If one sees as the interest protected by § 299 PC only the functioning of competition one could take the position that the proper functioning of foreign markets is not an interest to be protected by German legislation, so that the penal provision consequently does not extend to attempts of illicitly influencing competition abroad. This statement needs to be qualified, however, in two respects : first, competition within the common market of the European Union has a direct impact on Germany so that the scope of the protection should - at least de lege ferenda - be extended to Union-wide competition [36][36] See Tiedemann, in : LK, § 299 note 3, citing draft...; second, corrupt interference with business competition abroad can have an impact on monetary interests of German competitors and thus directly affect legal interests to be protected by German law. At least in the latter case, i.e. when the offense committed abroad had or could have had a detrimental effect on a German competitor, § 299 PC should be applicable, provided that the requirements of German international criminal law are fulfilled. These requirements are that either (i) the offense was (at least in part) committed on German territory (§ 3 PC), (ii) the offense was committed by a German citizen (§ 7 II no. 1 PC), or (iii) the victim of the offense was a German citizen (§ 7 I PC).

29

In the last two instances, the Code further requires that the offense must have been punishable in the jurisdiction where it was committed. In that case, criminal liability abroad must be based on a prohibition similar in purpose to the German provision [37][37] It is not quite clear whether this requirement is fulfilled,.... If the offense of business bribery affecting monetary interests of a German competitor is committed on German territory (case (i) supra) or if it is punishable in the jurisdiction where it has been committed (case (iii) supra) even a foreign national can be punished under German law.

2. Implementation of International Agreements

30

Germany has joined the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 1997 and has implemented its Article 1 by passing the Gesetz zur Bekämpfung internationaler Bestechung in 1998 [38][38] Bundesgesetzblatt I 1998, p. 2327. . This law declares that, with respect to the application of aggravated active bribery (§ 334 PC) to an act of corrupting related to a future judicial act or act of public service, committed in order to acquire or secure for the actor or any other person a contract or an unfair advantage in international commercial relations, a « judge » can also be a judge of a foreign state or of an international court, and a « public official » can also be a public official of a foreign state or a person mandated to perform public functions for a foreign state, or an official or employee of an international organisation [39][39] Art. 2 § 1 Gesetz zur Bekämpfung internationaler B.... Art. 2 § 2 of this law also makes it an offense to offer, promise or grant to a member of the legislative organ of a foreign state or of an international organisation an advantage in exchange for that member’s taking action (in connection with his official function) to acquire or secure an unfair advantage for the giver or any other person in international business relations. With respect to influencing foreign members of parliament, criminal liability thus goes significantly further than with respect to German members of parliament, where § 108e PC only prohibits the purchase of votes [40][40] See Zieschang, NJW 1999,105 at 107.. In accordance with Art. 4 OECD Convention, the German statute extends jurisdiction of German criminal courts to acts of bribing foreign officials or legislators committed abroad by German citizens. In this situation, German jurisdiction exists even in the absence of a norm penalizing the relevant conduct in the foreign jurisdiction, as § 7 PC generally requires for offenses committed abroad by German nationals.

31

Moreover, Germany has implemented the Protocol of the EC Council of Sept. 27, 1996 requiring the assimilation of the act of bribing an official of the EC or of any member state to the offense of bribing a national public official. The EU-Bestechungsgesetz of 1998 [41][41] Bundesgesetzblatt I 1998, p. 2340. uses the same technique as the law relating to combating corruption of foreign officals (supra), simply extending the definitions of « judge » in §§ 332 and 334 PC to judges of any member state of the European Union as well as to judges of Courts of the European Communities, and extending the definition of « public official » in the same provisions of the Penal Code to respective officials of EU member states as well as to officials of the European Communities as defined in Art 1 of the EC Protocol of 1996. Art. 2 § 2 EU-Bestechungsgesetz extends jurisdiction of German courts to acts committed abroad, either by German nationals or by foreign public officials covered by the statute [42][42] It should be noted that territorial application of.... It should be noted that the EU-Bestechungsgesetz goes further than the law relating to combating corruption of foreign officals in that it also covers aggravated passive corruption. As a consequence, German courts could convict under German law, e.g., a Belgian public official who accepted bribes from a French citizen in Belgium, regardless of the question whether his conduct was punishable under Belgian law. This far-reaching assimilation can only be explained by the - empirically doubtful - assumption that public administration, including individual responsibility for misconduct, in the member states of the European Union follows more or less the same principles and can thus be regarded as a common domain of the Union [43][43] The preambles of the Protocols of Sept. 27,1996, and....

IV. Procedural Aspects

32

German law does not contain procedural rules pertaining specifically to corruption offenses.

33

Initiation of criminal proceedings for bribery of public officials is possible without any special complaint or authorization. With respect to bribery in business relations, § 301 PC requires an application of the victim or of an association concerned with good competition practice, but the public prosecutor can file an accusation even without the victim’s formal consent whenever he, in his unreviewable discretion, deems a special public interest in prosecution to exist. There are no legal obligations to report instances of corruption to law enforcement agencies.

34

The public prosecutor is, in principle, required by law to open an investigation whenever there is good cause to believe that a corruption offense (or any other criminal offense) has been committed (§ 160 I Code of Criminal Procedure [hereinafter : CCP]) and to file an accusation whenever there is sufficient evidence to sustain the charges (§ 170 I CCP). Since corruption offenses are not felonies under German law, the prosecutor can, however, with the consent of the court refrain from prosecution if he regards the offense as insignificant (§ 153 CCP) or if the suspect agrees to make a payment or to perform some other act indicating his repentance and thereby removes any public interest in prosecution (§ 153a CCP). This decision of the public prosecutor cannot be judicially reviewed.

35

In cases of business corruption, the victim (i.e., any competitor whose interests might have been affected by the offender’s corrupt practices) can himself bring the case to court even if the public prosecutor declines prosecution (§ 374 I no. 5a CCP). In that case, the victim must himself collect the relevant evidence and present the case in court. Because of the practical difficulties involved [44][44] And because the court can at any time dismiss the case..., private criminal actions have become extremely rare in German courts.

36

If specific facts give rise to the suspicion that someone has committed aggravated passive or aggravated active bribery (§§ 332,334 PC) and if the investigation of the case would be difficult without secret surveillance, a panel of the district court can permit the police to install hidden microphones or other technical devices for secret listening to conversations in the home of a suspect or of a person whose home the suspect uses (§ 100c I Nr. 3 (a) CCP). This authorization for invading the privacy of the home by means of listening devices is an anomaly insofar as the less intrusive use of wiretaps and even the use of listening devices outside homes is not permissible in bribery cases (cf. §§ 100a, 100c I no. 2 CCP).

37

Undercover police agents can generally not be used to investigate bribery offenses except when there is a suspicion that the offense has been committed by members of a criminal gang or organization, or that it has been committed on a continuous basis or for continual gain (cf. § 110a I CCP). With respect to informers who are not members of the police force, the Code of Criminal Procedure does not contain any rules, and the courts generally tolerate the use of such informers. There is no provision for giving immunity to « crown witnesses » in the area of corruption, but the prosecutor can, in appropriate cases, make use of his discretion to refrain from prosecution (see supra).

38

There is no provision for shifting the burden of proof to the defendant [45][45] See, however, Überhofen, Korruption und Bestechungsdelikte.... There is no legal bar against searching banks for documents and electronically stored information in a criminal prosecution.

V. Other Regulations

39

According to German tax law, bribes received are subject to income tax. Until 1996, it was possible to set off bribes from taxable income as business expenses. According to the present tax law, this is no longer permissible if either the giver or the receiver of the bribe has been convicted of bribery, an adminstrative fine has been imposed on him, or a prosecution for bribery has been dismissed under §§ 153-154e CCP (§ 4 V no. 10 Einkommensteuergesetz) [46][46] For details, see Joecks, in : Pieth/Eigen (n. 6), pp. 373.... This regulation means, however, that taxation is dependent on the scope of the criminal law, both in its normative extension (so that the expansion of criminal liability to business bribery abroad by the 1998 law on the combat against international business corruption has had the side-effect of reducing the possibility to deduct bribes paid abroad as business expenses) and, more importantly, in its concrete application to individual cases (bribes can be deducted as long as there has not been a successful criminal prosecution).

VI. Related Offenses

40

There is a wide array of offenses potentially to be committed by public officials in response to bribes.

41

With respect to general offenses directed against the financial interests of the state or a state-controlled enterprise, breach of trust (Untreue, § 266 PC) is a practically important example. A public official commits Untreue whenever he, within the scope of his factual ability to dispose of or affect others’(especially the state’s) financial interests, violates his duties and thereby causes monetary damage. This would be the case, e.g., when a public official, in exchange for a bribe, accepts substandard services or goods from an entrepreneur on a contract with the state, or neglects to pursue the state’s financial claims against a business partner until the statute of limitation has expired [47][47] The same offense can be committed by a manager or employee.... It is, of course, also possible that a bribed public official commits theft or embezzlement of state property (242, 246 PC), falsifies a document (§ 348 PC) or neglects his duty to bring an offender to justice (§ 258a PC).

42

In German law, there is no general « abuse of official authority » offense relating to public officials. Special provisions concern the violation of the duty to keep state secrets (§§ 203 II, 353b, 355 PC); these provisons can be used agaginst bribed public officials in appropriate cases.

43

The offense of money laundering (§ 261 PC) is applicable to the proceeds of aggravated passive and active bribery of a public official (§§ 332,334 PC). The offense consists in concealing or jeopardizing the detection of (direct or indirect) proceeds of bribery or the acquisition or possession for another person of such proceeds. Money laundering can also be committed by the perpetrator of the « source » offense himself. The offense of receiving stolen goods (§ 259 PC) is generally not applicable to bribery of a public official because its predicate offense must have been directed against the property of another [48][48] Cf. Ruß, in : LK, § 259 note 5;Stree, in : Schönke/Schröder,....

44

Persons who bribe a public official can at the same time commit (attempted) fraud (§ 263 PC) if the requirements of that provision, especially financial damage to the state or another person as a direct result of fraudulent conduct, are fulfilled. In most cases, this will only be possible if the bribed public employee commits another fraudulent act against those in charge of making financial dispositions.

45

Illegal agreements to restrict competition are regarded as administrative violations under German competition law (§§ 1,81 I no. 1 Gesetz gegen Wettbewerbsbeschränkungen). Offenders are fined, the maximum of the fine being 500,000 Euro or three times the sum of the offender’s gain, whichever is higher (§ 81 II Gesetz gegen Wettbewerbsbeschränkungen). However, fraudulent agreements to influence public tenders on the acquisition of goods or services (submission fraud) are punishable as criminal offenses with a maximum of five years imprisonment (§ 298 PC). If a concrete damage to competitors or to the enterprise making the tender can be proved, such illicit agreements can also be punished as fraud (§ 263 PC) [49][49] See BGHSt 38,186 (1996), and discussion of this decision....

46

Offenses directed against financial interests protect foreign citizens as well as foreign states [50][50] Eser, in : Schönke/Schröder, vor § 3 note 15.. Offenses of this kind committed by German nationals abroad can be adjudicated in Germany under German criminal law if the offense was punishable in the jurisdiction where it was committed (§ 7 II no. 1 PC). Foreign nationals can be punished in Germany if they committed the offense in Germany (§ 3 PC), or if the victim was a German citizen [51][51] There is some dispute as to whether German law is applicable... and the act was punishable in the jurisdiction where it was committed (§ 7 I PC).

47

As for international agreements joined by Germany, see III. supra. To the extent the implementing legislation assimilates German and foreign public officials, this assimilation extends to related offenses the definition of which makes reference to §§ 332 and 334 PC, e.g., money laundering (§ 261 PC). In cases of money laundering, the judge can permit wiretapping as well as secret surveillance of live conversations by means of technical devices (§§ 100a I no. 2,100c CCP).

VII. Reform Issues

1. Substantive Criminal Law

a) Over-Extension of Bribery Offenses ?

48

The Corruption Combat Act of 1997 has by some authors been criticized as expanding too far the criminal responsibility for taking or offering advantages in public service [52][52] See, e.g., the critical view of Hettinger, NJW 199.... Some writers have objected to the penalization of subsequently offering advantages for (proper) public service [53][53] Hettinger, NJW 1996,2263 at 2268-2271; Ransiek, StV...; others regard the general inclusion of advantages given to third persons as too far-reaching, in particular in view of the growing need for sponsoring in the public domain [54][54] Korte, NStZ 1997,513 at 515; Ransiek, StV 1996,446....

49

The first of these objections is based on theoretical considerations concerning the legal interest protected by bribery offenses. If it is true, as a majority of German writers maintain [55][55] See Dölling (n. 2), pp. 49-50;Überhofen (n. 45), pp. 76..., that the prohibition of bribery is to protect the determination of administrative decision-making exclusively by objective factors (and not by personal preferences of public officials), then punishing subsequent remuneration of public officials can only have an indirect effect on the legal interest protected : a public official who obtains an advantage as a reward for services rendered may be inclined to give preferential treatment to the giver of the reward in future encounters. This connection between paying for past performance and potentially manipulating future performance is, however, of sufficient psychological plausibility to warrant criminalization of the seemingly harmless « after the fact » bribery [56][56] Accord, Dölling (n. 2), pp. 64-65..

50

The issue of giving or demanding advantages to third persons is a practical rather than a theoretical problem. It can hardly be denied that giving an advantage to a third party on the request of a public official can illicitly influence the latter’s performance of his duties [57][57] Accord, Dölling (n. 2), pp. 67-68.. Still, the wording of the relevant Code provisions (§§ 331,333 PC) may be too broad in that they appear to prohibit even the offering or acceptance of, e.g., private funds to promote research in a university institute or for public charities. There does exist in these cases the possibility of obtaining previous or subsequent permission for the transaction by the superior administrative agency, but even that possibility is foreclosed when the public official has « demanded » the advantage (cf. § 331 III PC). It would thus be useful either to expressly restrict penalization of the « advantage to others » situation to cases in which the public official obtains an indirect personal benefit (which may lead to difficulties of proof), or to provide a special justification for instances of legitimate sponsoring of public causes.

51

The de minimis issue, i.e. the exception of very minor, socially customary advantages from the ambit of criminal corruption law, should not be regulated by legislation. Since the acceptability of such practices does not so much depend on the monetary value of the advantage given to the public official but on the situational context, a legal provision could do no more than state a general principle which is already being applied, more or less consistently, by the courts and proecutorial agencies.

52

The 1997 legislation has raised the sentences for active bribery (§§ 333,334 PC). This has led to a change in the relative weighting of passive and active bribery : whereas earlier legislation had treated the « active » citizen more leniently than the public official who demands or accepts bribes, the briber is now in effect treated more harshly because the maximum sentence for his activity is the same as the maximum for passive bribery even though he is not in the same position of special trust as a public official - a fact that generally leads to mitigation of punishment for accessories (§ 28 I PC) [58][58] Cf. Cramer, in : Schönke/Schröder, § 333 note 1;Hettinger,.... It might be preferable to return to the former arrangemen,. i.e. to provide the most severe sentences for passive bribery and to grant a « discount » to citizens involved in active bribery.

53

Before introduction of the 1998 legislation extending applicability of German corruption law to bribing foreign officials (see III. 2., supra), several writers had been critical of such legislation [59][59] Dölling (n. 2), pp. 104-105; Kerner/Rixen, GA 1996,355..., arguing that extension of German provisions against corruption to foreign jurisdictions could be regarded as paternalistic and that prosecution of consensual conduct in far-away lands would in any event be a highly unrealistic perspective. While the latter argument still holds true, the notion that we impose our own cultural and legal standards on unwilling recipients has been effectively refuted : corruption in developing and threshold countries benefits « first world » business enterprises, has a negative impact on fair international competition and does great harm to the long-term economic interests of affected countries [60][60] See Frisch, in : Pieth/Eigen (n. 6), p. 89. ; it is hence commendable that the international community joins efforts to combat corruption in business relations by setting common standards and enforcing them (to the extent possible) with the help of domestic criminal law [61][61] For a useful analysis of the issue, see Pieth, ZStW....

54

It has been mentioned above that completion of bribery offenses occurs very early : even the mere utterance of an offer or a demand fulfils the offense definition of active or passive bribery. Some authors have therfore called for introduction of an « abandonment » provision, enabling a person to obtain impunity by voluntarily retreating from a corruptive design and informing the authorities before that design has been carried out [62][62] See Bannenberg (n. 18), pp. 412 et seq.; Lisken, NJW.... German law contains parallel provisions for cases of « active repentance », opening a door for offenders to retreat from a technically complete offense before any harm has been done [63][63] See, e.g., §§ 142 IV (leaving the scene of an accident),.... Introducing a provision of this kind for corruption offenses would have the added advantage of potentially gaining the cooperation of participants in a corruptive scheme in the prosecution of others, thus increasing the risk of conviction for everybody involved in a corruptive scheme. Such a provision should, however, pertain only to persons who have limited themselves to offering or promising a bribe or to demanding or accepting a promise of one, because once a corruptive agreement has been acted upon (by giving and accepting the advantage) it cannot unilaterally be retracted by one party. In order to make an « active repentance » clause effective, impunity should be a mandatory consequence, not a mere option left to the discretion of the court [64][64] Leaving to courts the option of only reducing the sentence....

b) Criminal liability of legal persons

55

Because bribery is often committed on behalf of business companies or other legal persons, many international instruments on combating corruption call for the introduction of sanctions directed at legal persons [65][65] See, e.g., Art. 2 OECD Convention on Combating Bribery.... A growing number of legal systems provide for criminal liability of legal persons. Responsibility of legal persons for unlawful acts committed by their executive organs for the benefit of the legal person certainly is a useful and justifiable instrument of imposing liability. It does not, however, fit well into the system of criminal law, which is based on the principle of individual moral guilt. It is therefore recommendable to maintain the German system of providing for liability of legal persons under the heading of administrative infractions (§ 30 Gesetz über Ordnungswidrigkeiten). This system provides the possibility of imposing heavy fines on legal persons while upholding the individual character of « core » criminal liability [66][66] Accord, Bannenberg (n. 2), pp. 409 et seq.; for a contrary....

2. Procedural Issues

56

German anti-corruption criminal legislation is fairly comprehensive - the main problem in practice is to detect the commission of offenses and to obtain sufficient proof for conviction in court. Several proposals have been made to lower the procedural obstacles and to make conviction more likely.

57

One suggestion has been to introduce an obligation on certain public agencies to report all instances of possible corruption to the public prosecutor [67][67] See, e.g., Kerner/Rixen, GA 1996,355 at 394.. It is doubtful, however, whether such an obligation would not be counterproductive in that it may reduce the willingness of insiders to come forward with confidential information on suspicions of corruption [68][68] See Dölling (n. 2), p. 99..

58

Because corruption is a conspiratorial offense without an individual victim information can, as a rule, only be obtained from insiders or by methods of surreptitious surveillance. Proposals have been made, therefore, to encourage « insider » witnesses to come forward and to permit the use of agents provocateurs for providing evidence of corruption. With respect to the former, there were several proposals in the 1990s to grant freedom from prosecution or a reduced sentence to « crown witnesses », i.e. participants in bribery offenses who provide information to the state [69][69] For a list of legislative proposals, see Bannenberg.... The plausibility of the general notion behind the use of « crown witnesses » (who need not in fact appear as witnesses in court - in many cases, it is sufficient that they provide law enforcement agencies with leads to other offenders) can hardly be denied : it is an inexpensive method for the state to obtain inside information on conspiratorial offenses that would not otherwise be easily available [70][70] Graf Lambsdorff, in : Pieth/Eigen (n. 6), p. 56 at.... Yet there has been widespread criticism of crown witness statutes that Germany had introduced in the 1970s and 1980s for drug and terrorism offenses as well as for other offenses related to organised crime : promising impunity or leniency for information can lead to unreliable or useless statements by individuals intent on reducing their penalty and/or harming others; « crown witnesses » must come forward with information without any assurance of their eventual reward; the ability to provide information on crime is not a legitimate sentencing factor; access to the leniency provison of a « crown witness » statute often depends on chance factors, thus violating the principle of equality; and it is harmful to the authority of the state when it is seen haggling over information with criminals [71][71] For recent comprehensive discussions see Breucker/Engberding,.... It is not only because of these objections but also because of its perceived ineffiency that the German « crown witness » statute for terrorism and organised crime offenses was allowed to expire in 1999 and has not since been renewed. Its re-introduction specifically for corruption offenses cannot be recommended because its drawbacks both in practical terms and (more importantly) in undermining the credibility of the state’s aspiration to establish a rule of law outweigh any possible advantages [72][72] Accord, Kerner/Rixen, GA 1996,355 at 385; Ransiek,....

59

Introducing informers into the inner circle of conspiratorial crime is another controversial method of obtaining information for later prosecution. As has been mentioned above (IV., supra), German law regulates only one aspect of this method, i.e., the use of undercover police agents, and does not make this method regularly available for the investigation of bribery offenses (§ 110a CCP). As for other informers paid or instructed by the police, German courts have established certain ground rules (e.g., informers must not use methods prohibited by § 136a CCP to obtain information) but otherwise have left this « gray area » unregulated. It is therefore possible for law enforcement to persuade any private person to gather and provide information on crime and even to encourage persons who already have a general propensity to commit certain offenses in order to gain evidence later to be used in court [73][73] See BVerfGE 57,250; BGHSt 32,115; 40,211; 42,139; .... It would be preferable to have a clear and restrictive statutory regulation of this difficult subject matter, but as long as it is not forthcoming there is certainly no need to expand further the state’s possibilities to use informers and agents provocateurs in cases of corruption.

60

With respect to electronic surveillance of telephone and « live » conversations, recent changes have led to the anomaly, described above (IV.), that in cases of suspected aggravated corruption of a public official (§§ 332,334 PC) hidden microphones can be installed in the suspect’s home but not in open space, and that his telephone cannot be put under surveillance (§§ 100a, 100c CCP). With respect to business corruption (§ 299 PC), secret surveillance of conversations is not permissible. Some writers have suggested an expansion of the authorization to electronically monitor conversations [74][74] Dölling (n. 2), p. 100; Dölling, ZStW 112 (2000), p. 334.... Even if one regards with skepticism and concern the recent trend of German legislation to continually expand the authority of law enforcement to intrude the citizens’ sphere of privacy one must concede that it would only be consequent to follow up with the first step (i.e., permitting wiretaps and outdoor surveillance) after one has already taken the second (i.e., permitting surveillance of conversations in the home).

3. International Harmonization

61

International harmonization of laws against corruption is desirable to the extent national courts can adjudicate corruption offenses committed abroad. This is the case, as has been shown, under Art. 2 § 1 no. 2 (a) EU-Bestechungsgesetz, which assimilates German public officials and those of other member states of theEuropean Union, thus in effect creating a common espace judiciaire with respect to aggravated bribery. If that is the case, member states should make certain that definitions of bribery as well as definitions of what is a public official do not differ from each other. Arts. 2 and 3 of the EU Convention on the combat of bribery of 1997 provide offense definitions that closely parallel those to be found in German law; they could be a good basis for Europe-wide harmonization.

62

When national jurisdiction on corruption offenses is extended to offenses committed by nationals abroad, there does not seem to be a need for a special international court on corruption. It has to be ensured, however, that states make good-faith efforts to punish offenders and do not use prosecutorial discretion for refraining from prosecution because of political or economic considerations [75][75] Cf. Art. 5 OECD Convention on Combating Bribery of....

4. Preventive Measures

63

In German discussion, there seems to be agreement that criminal law is an indispensible tool in the combat of corruption. Yet even if the threat of punishment for corruption may, due to the typically elevated social position of potential offenders, be a more effective deterrent than with other kinds of harmful conduct, one should not neglect the development and implementation of preventive measures. In German literature, several measures have been proposed to prevent the occurrence of corruption in public administration [76][76] See, e.g. Bannenberg (n. 18), pp. 440 et seq.; Graf...: restriction of individual public officials’ discretion in decision-making, increased job rotation to avoid the building of long-term relationships between entrepreneurs and public officials, involvement of more than one public official in critical decisions, strict and random internal controls of sensitive decision-making, development of lists of « warning signals » indicating the opening of an investigation for possible corruption, the installation of corruption hotlines and independent « corruption ombudsmen », and measures to protect « whistle-blowers » from reprisals. There have also been suggestions to strengthen non-criminal reactions to misconduct, e.g., sanctioning of passive corruption through disciplinary measures and exclusion of bribing enterprises from public bidding.

64

Some of these measures are, however, quite costly - frequently rotating public officials in corruption-sensitive positions, for example, leads to losses in terms of expertise and information and might be less economical than tolerating a certain level of corruption [77][77] See Kerner/Rixen, GA 1996,355 at 371.. Yet reform efforts should concentrate on the area of prevention rather than rely on just raising the level of criminal penalties - a measure notoriously ineffective in impeding crime.

65

Finally, the success of the fight against corruption depends very much on installing (or restoring) an ethos of integrity among public officials. Raising public officials’ sensibility through the dissemination of information and through seminars featuring role-playing and discussion of borderline situations may be one way to help achieve this goal; what is even more important, however, is to select for public service individuals with high personal integrity and to maintain a spirit of lawfulness and loyalty to public service values through giving proper public appreciation and adequate remuneration to public officials.

Notes

[*]

Professor Dr., University of Cologne (Germany).

[1]

Source : Bundeskriminalamt, Polizeiliche Kriminalstatistik 2000,2002, p. 39.

[2]

See Dölling, Gutachten C zum 61. Deutschen Juristentag, 1996, pp. 16 et seq., 25 et seq.; Hettinger, Neue Juristische Wochenschrift (NJW) 1996,2263 at 2267; Kerner/Rixen, Goltdammer’s Archiv (GA) 1996,355 at 366.

[3]

Source : Bundeskriminalamt, Polizeiliche Kriminalstatistik 2000,2002, p. 39.

[4]

Source : Statistisches Bundesamt (ed.), Rechtspflege Reihe 3, Strafverfolgung 2000, 2001, pp. 28,32.

[5]

EU-Bestechungsgesetz of Sept. 10,1998 (BGBl. II 2340) and Gesetz zur Bekämpfung internationaler Bestechung of Sept. 10,1998 (BGBl. II 2327).

[6]

See, e.g., the comprehensive multidisciplinary volume by Pieth/Eigen (eds.), Korruption im internationalen Geschäftsverkehr, 1999.

[7]

E.g., a member of the cabinet or a notary public; see Gribbohm, in : Leipziger Kommentar Strafgesetzbuch (hereinafter : LK), 11th ed. 1997, § 11 note 28.

[8]

Entscheidungen des Bundesgerichtshofes in Strafsachen (hereinafter : BGHSt) 45,16 at 19 ( 1999). In its decision BGHSt 46,310 at 313 ( 2001), the Federal Court of Appeals explains that the function of the organisation employing the offender must be comparable to a typical public function.

[9]

For details and examples, see Dölling (n. 2), pp. 54 et seq.; Dölling, Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW) 112 (2000), p. 334 at 337-342; see also Bauer/Gmel, LK, Nachtrag 2001, §§ 331-338 note 6.

[10]

The same requirement of specificity applies to passive bribery of judges (§ 331 II PC).

[11]

See Cramer, in : Schönke/Schröder, Strafgesetzbuch, 26th ed. 2001 (hereinafter : S/S), § 331 note 19; Jescheck, in : LK, § 331 note 9, with references.

[12]

See Cramer, in : S/S, § 331 note 53a; Korte, Neue Zeitschrift für Strafrecht (NStZ) 1997, 513 at 515; Ransiek, Strafverteidiger (StV) 1996,446 at 451; but see the more rigorous position of Dölling (n. 2), pp. 67-68.

[13]

§ 336 PC specifically provides that non-performance of a public service shall be treated the same way as performance.

[14]

BGHSt 15,88 at 97 (1960).

[15]

§ 332 III reads : « If the offender demands, accepts an offer of or receives any advantage in return for a future act, sections 1 and 2 are applicable when the offender has shown himself ready (i) to violate his duties in carrying out the act or (ii) insofar as the act involves the exercise of discretion, to let the advantage influence the exercise of his discretion. »

[16]

See BGH Neue Zeitschrift für Strafrecht - Rechtsprechungsreport 2002,272 at 274.

[17]

There exist different views as to whether an unlawfully granted permission nevertheless exempts the public official from punishability; see Cramer, in : S/S, § 331note 51; Lackner/Kühl, Strafgesetzbuch. Kommentar, 24th ed. 2001, § 331 note 17.

[18]

See Dölling, ZStW 112 (2000), p. 344; Jescheck, in : LK, § 331 note 15; Wessels/Hettinger, Strafrecht Besonderer Teil 1,25th ed. 2001, note 1113. For attempts to define the limits, see Bannenberg, Korruption in Deutschland und ihre strafrechtliche Kontrolle, 2002, pp. 398 et seq.; Duttge, ZRP 1997,72 at 77.

[19]

§ 28 I PC provides that an accomplice in an offense the commission of which requires certain personal circumstances defined by the statute (e.g., the status of being a public official in §§ 331,332 PC) must receive a sentence discount if these personal circumstances are not applicable to him.

[20]

Cf. Rudolphi, in : Systematischer Kommentar zum Strafgesetzbuch (hereinafter : SK StGB), 1997, § 333 note 18.

[21]

For results of an empirical study on sentences imposed for bribery, see Bannenberg (n. 18), pp. 280 et seq.

[22]

See § 24 Beamtenrechtsrahmengesetz, § 48 Bundesbeamtengesetz.

[23]

The provision extends to active and passive bribery committed either for continuing gain ( gewerbsmäßig) or as a member of a gang formed to commit bribery on a permanent basis.

[24]

As to the high standard of proof required, see BGHSt 40,371 at 373 (1994).

[25]

BGHSt 11,345 at 347 ( 1958); for an opposing view (completion when advantage has been given), see Stree/Sternberg-Lieben, in : S/S, § 78a note 2. The issue has been left open in BGH NJW 1998,2373.

[26]

Cf. Eser, in : S/S, § 108e note 1.

[27]

State employees can commit the offense of business bribery only to the extent that the state takes part in regular market competition, e.g., in relation with the acquisition of materials for administrative agencies. To the extent a state-influenced organisation or enterprise is regarded as part of the public administration (and the persons acting for that organisation are thus public officials in the sense of §§ 331,332 PC), § 299 PC is not applicable; see Tiedemann, in : LK, § 299 note 18.

[28]

Heine, in : Schönke/Schröder, § 299 note 2; Tiedemann, in : LK, § 299 note 5.

[29]

Tiedemann, in : LK, § 299 note 6, with further references.

[30]

Tiedemann, in : LK, § 299 note 17.

[31]

Tiedemann, in : LK, § 299 note 31.

[32]

E.g., when having this information enables the business partner to make an offer that exactly matches the internal requirements of the « passive » employee’s enterprise.

[33]

For discussions, see Heine, in : S/S, § 299 notes 19-20; Tiedemann, in : LK, § 299 notes 36-39.

[34]

For an extensive discussion, see Tiedemann, in : LK, § 299 notes 19-21 with references.

[35]

Dölling (n. 2), p. 102; Eser, in : S/S, vor § 3 notes 16-18. But note that special statutes extend the territorial applicability of German law (III. 2., infra).

[36]

See Tiedemann, in : LK, § 299 note 3, citing draft agreements and statutes aiming at explicitly extending § 299 PC to competition within the European Union.

[37]

It is not quite clear whether this requirement is fulfilled, e.g., when business bribery in the foreign jurisdiction is punishable as an offense against the interests of the enterprise whose employee is receiving the bribe; see Tiedemann, in : LK, § 299 note 56.

[38]

Bundesgesetzblatt I 1998, p. 2327.

[39]

Art. 2 § 1 Gesetz zur Bekämpfung internationaler Bestechung.

[40]

See Zieschang, NJW 1999,105 at 107.

[41]

Bundesgesetzblatt I 1998, p. 2340.

[42]

It should be noted that territorial application of the German law on active and passive bribery under this statute is not limited to the territory of the European Union; as long as the act affects a judge or public official of the European Communities or of any member state, German courts have jurisdiction even if the act took place outside Europe and was not punishable there.

[43]

The preambles of the Protocols of Sept. 27,1996, and of June 19,1997, on which the German statute is based, mention as the purpose of assimilation of corruption offenses only the improved protection of the financial interests of the Communities - which would primarily require the assimilation of bribing EC officials to the bribing of national public officials of the respective member state. The further step of assimilating offenses of corruption relating to or committed by national public officials of any member state was taken for the first time in the Convention on Combating Corruption of May 26,1997. The preamble of this Convention gives no substantive reason for this extension except that it mentions « improvement of judicial cooperation among member states ».

[44]

And because the court can at any time dismiss the case if it regards the offender’s guilt as insignificant (§ 383 II CCP).

[45]

See, however, Überhofen, Korruption und Bestechungsdelikte im staatlichen Bereich, 1999, p. 129, arguing that § 331 PC, by extending liability to accepting advantages « for providing public service », in fact shifts the burden of proof to the public official who has received an advantage : he must then demonstrate the purely private context of the gift.

[46]

For details, see Joecks, in : Pieth/Eigen (n. 6), pp. 373 et seq.

[47]

The same offense can be committed by a manager or employee of a private enterprise with authority or factual power to dispose of or affect the finances of the enterpise.

[48]

Cf. Ruß, in : LK, § 259 note 5;Stree, in : Schönke/Schröder, § 259 note 7. The result may be different with respect to business bribery if one assumes that bribing an employee of a business enterprise has a direct impact on competitors’financial situation.

[49]

See BGHSt 38,186 (1996), and discussion of this decision in Dahs (ed.), Kriminelle Kartelle ?, 1998.

[50]

Eser, in : Schönke/Schröder, vor § 3 note 15.

[51]

There is some dispute as to whether German law is applicable when the offense was directed against a legal entity chartered in Germany; cf. Eser, in : Schönke/Schröder, § 7 note 6; Gribbohm, in : LK, § 7 note 48.

[52]

See, e.g., the critical view of Hettinger, NJW 1996,2263.

[53]

Hettinger, NJW 1996,2263 at 2268-2271; Ransiek, StV 1996,446 at 450-451.

[54]

Korte, NStZ 1997,513 at 515; Ransiek, StV 1996,446 at 451.

[55]

See Dölling (n. 2), pp. 49-50;Überhofen (n. 45), pp. 76 et seq. (with further references). Other authors regard as the protected legal interest the general reputation of state administration ( Cramer, in : Schönke/Schröder, § 331 note 3) or the trust of the public in the incorruptibility of public service (BGHSt 15,88 at 96; Jescheck, in : LK, vor § 331 note 17, with further references). From this « subjective » perspective, it is easy to explain the inclusion of subsequent payments in bribery prohibitions; but this perspective fails to provide any rational limits to criminal liability for bribery : corruption is what the public think it is.

[56]

Accord, Dölling (n. 2), pp. 64-65.

[57]

Accord, Dölling (n. 2), pp. 67-68.

[58]

Cf. Cramer, in : Schönke/Schröder, § 333 note 1;Hettinger, NJW 1996,2263 at 2272; Korte, NStZ 1997,513 at 515.

[59]

Dölling (n. 2), pp. 104-105; Kerner/Rixen, GA 1996,355 at 391; Pieth, in : Lüderssen, Aufgeklärte Kriminalpolitik oder Kampf gegen das Böse ?; vol. III, 1998, p. 443 at 449.

[60]

See Frisch, in : Pieth/Eigen (n. 6), p. 89.

[61]

For a useful analysis of the issue, see Pieth, ZStW 109 (1997), p. 756 at 772-774.

[62]

See Bannenberg (n. 18), pp. 412 et seq.; Lisken, NJW 1995,1873 at 1875.

[63]

See, e.g., §§ 142 IV (leaving the scene of an accident), 298 III (submission fraud), 306e (arson), 314a (explosives offenses), 330b (environmental offenses) PC.

[64]

Leaving to courts the option of only reducing the sentence (as do the provisions cited in note 63 supra) drastically reduces the attractiveness of « active repentance » provisions because a potential turncoat can never be certain whether and to what extent his cooperation with law enforcement will be honored.

[65]

See, e.g., Art. 2 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Relations (1997); Art. 4 Second Protocol on the European Communities Convention on the Protection of Financial Interests of the European Community (97/C221/02) (1997); Art. 19 II Council of Europe Draft Criminal Law Convention on Corruption (1998).

[66]

Accord, Bannenberg (n. 2), pp. 409 et seq.; for a contrary view, see Ransiek, StV 1996, 446 at 452 (arguing that the enterprise ist the « real culprit » and individual responsibility is not of interest here).

[67]

See, e.g., Kerner/Rixen, GA 1996,355 at 394.

[68]

See Dölling (n. 2), p. 99.

[69]

For a list of legislative proposals, see Bannenberg (n. 18), pp. 428 et seq.; for arguments in favor of such proposals see, e.g., Dölling (n. 2), p. 74; Schaupensteiner, NStZ 1996,409 at 414; Überhofen (n. 45), pp. 156 et seq., 165.

[70]

Graf Lambsdorff, in : Pieth/Eigen (n. 6), p. 56 at 84-85, correctly points out that the use of crown witnesses and informers increases the transaction costs of corruption by heightening the risk that information will not remain confidential, thus making it necessary for offenders to take additional measures of caution, e.g., checking the background of every person involved in an illicit « deal ».

[71]

For recent comprehensive discussions see Breucker/Engberding, Die Kronzeugenregelung, 1999; Jeßberger, Kooperation und Strafzumessung, 1999; Paeffgen, StV 1999, 627

[72]

Accord, Kerner/Rixen, GA 1996,355 at 385; Ransiek, StV 1996,446 at 449. But see my suggestion to offer impunity for « active repentance » ( supra) - this institution is built on a different, more stable theoretical foundation (i.e., avoidance of harm or restitution) and can have similar effects as a « crown witness » statute in that it may persuade insiders to cooperate with law enforcement.

[73]

See BVerfGE 57,250; BGHSt 32,115; 40,211; 42,139; 45,321.

[74]

Dölling (n. 2), p. 100; Dölling, ZStW 112 (2000), p. 334 at xx; Schaupensteiner, NStZ 1996,409 at 414; but see, contra, Kerner/Rixen, GA 1996,355 at 393. Überhofen (n. 45), p. 167, recommends limiting the authority to order wiretaps to particularly serious cases of corruption (§ 335 PC). This is hardly practical because in the early stages of an investigation it will often not be possible to determine whether the offense in question is « particularly serious ».

[75]

Cf. Art. 5 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 1997; see also Dölling (n. 2), p. 98.

[76]

See, e.g. Bannenberg (n. 18), pp. 440 et seq.; Graf Lambsdorff, in : Pieth/Eigen (n. 6), p. 56 at 84-85; Kerner/Rixen, GA 1996,355 at 368 et seq.;Ostendorf, NJW 1999,615 at 617;Pieth, in : Lüderssen, Aufgeklärte Kriminalpolitik oder Kampf gegen das Böse ?, vol. III, 1998, p. 433 at 447-448; Überhofen (n. 45), pp. 170 et seq.

[77]

See Kerner/Rixen, GA 1996,355 at 371.

Plan de l'article

  1. I. Criminological Data
  2. II. Basic Structures of the Criminal Law on Corruption
    1. 1. Bribery of Public Officials
      1. a) Passive bribery
      2. b) Active bribery
    2. 2. Bribery of Employees of Business Enterprises
      1. a) Passive bribery
      2. b) Active bribery
  3. III. International Aspects
    1. 1. Extent of Protection and Application of German Law
    2. 2. Implementation of International Agreements
  4. IV. Procedural Aspects
  5. V. Other Regulations
  6. VI. Related Offenses
  7. VII. Reform Issues
    1. 1. Substantive Criminal Law
      1. a) Over-Extension of Bribery Offenses ?
      2. b) Criminal liability of legal persons
    2. 2. Procedural Issues
    3. 3. International Harmonization
    4. 4. Preventive Measures

Pour citer cet article

Weigend Thomas, « Allemagne / Germany », Revue internationale de droit pénal 1/ 2003 (Vol. 74), p. 71-92
URL : www.cairn.info/revue-internationale-de-droit-penal-2003-1-page-71.htm.
DOI : 10.3917/ridp.741.0071


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