II. The Legal Mechanisms for the Fight against Corruption
3. The Investigation of Potential Corruption
Corruption affects many areas of law, and, accordingly, investigation lies within the responsibility of several authorities dealing with specific legal aspects of corruption. There is no central economic fraud author- ity with a comprehensive competence to investigate cases of corruption.
In so far as corruption constitutes a criminal offence, investigation is conducted by the public prosecution services and by the police – both of them being Lọnder authorities. In view of the complexity of many cases and of the networks behind them, and also of the specific know- ledge and experience necessary to deal with economy-related crimes, the majority of the Lọnder have built up central police units specialized on corruption offences. Public prosecution services often have special- ized departments, too, though not always with a centralized compe- tence for the whole Land. Integrated investigation units for corruption offences where public prosecutors, police officers and other specialists work together under the same roof are regarded as being most effective.
This model has been implemented so far in the Lọnder Schleswig- Holstein, Brandenburg and Sachsen.106
Within the administration it is primarily up to superiors and superior authorities to prevent and eliminate corruption. It seems that this su- pervision has long been neglected.107 However, administrative regula-
105 Income Tax Act (Einkommenssteuergesetz), section 4 para 5 sentence 1 no. 10. See also Bannenberg (note 3), 26.
106 R. Thiel, Die Ressourcen der Korruptionsbekọmpfung in Deutschland.
Dokumentation für Transparency International Deutschland, available on
<http://www.transparency.de/Schwerpunktstellen_bei_Staatsa.423.0.html>.
107 Bannenberg (note 3), 246 et seq.
tions now expressly call for a vigilant control. Moreover, if a public of- ficial is suspected of having violated his duties, his superior or the supe- rior authority will conduct a disciplinary proceeding in order to inves- tigate the facts and possibly to impose disciplinary sanctions. However, the hierarchical structure of the public service is not always favourable to an effective uncovering of corruption. Public officials are under a duty to report suspicions of corruption to their immediate superior but they have no direct access to the prosecution services. It is only the head of the agency that has the right and usually the duty to inform the prosecution services as well as the highest service authority.108 This pro- cedure tends to slow down investigations and to reduce the protection of so-called “whistleblowers” against possible retaliation.109 This prob- lem has partly been addressed by the establishment of contact persons throughout the public administration.110 These contact persons may be approached immediately – and often anonymously – by a public official or any other person. However, they have no investigative powers of their own, and apart from a few exceptions they have no right to inform the prosecution services directly. Finally, besides the ordinary process of supervision and the contact person procedure, regular internal audits have been introduced for many public authorities.
External control of the management of public finance is exercised by independent courts of audit at federal and Lọnder level (Bundes- rechnungshof and Landesrechnungshửfe), as well as by special audit of- fices for local authorities. Financial control includes cases where public funds have been wasted as a consequence of corrupt practice and struc- tures. Nevertheless, the courts of audit tend to treat the elimination of corruption as a matter largely outside of their responsibility and hesi- tate to co-operate closely with the prosecution services. As a result of this, the information flow between these two institutions is widely re- garded as insufficient.111
108 Cf. Directive concerning the Prevention of Corruption in the Federal Administration (note 65), clause 10.1.
109 Cf. the criticism in the GRECO Evaluation Report on Germany (note 61), figures 39 et seq. and 47 et seq.
110 Cf. Directive concerning the Prevention of Corruption in the Federal Administration (note 65), clause 5.
111 Wiehen (note 71), 421; Bannenberg (note 3) , 258 et seq. Less critical Fie- big/Junker (note 3), 160.
Finally, revenue authorities and tax investigation services are of some importance, because corruption is often accompanied by tax offences.
The Income Tax Act obliges tax authorities on the one hand and courts, public prosecution offices and administrative authorities on the other hand, to inform each other of any facts indicating that a criminal, ad- ministrative or tax offence has been committed.112
In order to promote co-operation between investigating authorities, many Lọnder have established joint working groups or similar task forces. In some instances, like in Hamburg, they act as central investiga- tion units. Mostly, however, they are rather responsible for developing and co-ordinating preventive strategies, as well as for improving the in- formation flow and providing points of contact for the public and pub- lic officials.
b) Procedures and Penalties
In so far as corrupt conduct constitutes a criminal offence, it will be in- vestigated, prosecuted and tried according to the general rules of the Code of Criminal Procedure. In cases of active and passive bribery of public officials, investigative competences include bugging opera- tions,113 though strangely enough no telephone surveillance.114 Other- wise, there are no special procedural rules concerning corruption in the public service.
Penalties provided for the offences of granting or accepting an advan- tage (sections 333 and 331 of the Criminal Code) are identical for the public official on the recipient side and the individual on the donor side.
They receive either a pecuniary penalty or a prison sentence of up to three years, or in cases involving a judge on the recipient side of up to five years. For active and passive bribery (sections 334 and 332 of the Criminal Code), the maximum sentence is five years.115 As far as the minimum sentence for bribery is concerned, however, the law distin- guishes between three months for the donor side and six months for the
112 Income Tax Act (Einkommenssteuergesetz), section 4 para 5 sentence 1 no. 10.
113 Code of Criminal Procedure, section 100c para 1 no. 3 lit. a.
114 See the criticism of B. Bannenberg/ W. Schaupensteiner, Korruption in Deutschland, 2004, 212.
115 For a judge on the recipient side (passive bribery), the maximum sentence is ten years.
public official on the recipient side. In cases of lesser severity, a pecuni- ary penalty is also possible. Finally, in particularly severe cases of active or passive bribery, the sentence is up to ten years.116
In addition to the pecuniary fine or prison sentence, the Criminal Code provides that proceeds of crime – e.g. the bribe paid to a public official – are subject to forfeiture (Verfall). For a number of offences, the re- quirements of proof for this mechanism have been somewhat relaxed.
Such an order of extended forfeiture shall be issued when the circum- stances justify the assumption that the objects or assets in question were acquired as a result of any criminal offence. In 1997, the applicability of this mechanism has been extended to particularly severe cases of active and passive bribery.117
Besides their criminal liability, civil servants are subject to disciplinary sanctions imposed by the employing authority.118 These sanctions safe- guard the civil servant’s duties in relation to his public employer – du- ties such as those mentioned above relating to impartial conduct, addi- tional activities or the acceptance of rewards and gifts. Any culpable violation of these duties is a disciplinary offence.119 Disciplinary sanc- tions for such offences include reprimands, pecuniary fines, a reduction of salaries and the removal from service.120 The choice between these sanctions is not regulated in detail by the law. However, sanctions have to remain within the limits of proportionality.
Obviously, criminal and disciplinary offences often overlap. To a cer- tain extent, criminal proceedings take precedence over disciplinary pro- ceedings relating to the same matter. Disciplinary proceedings, in par- ticular, normally have to be suspended if a public charge is brought in the same matter against the public official. When they are resumed, the factual results of the criminal proceeding are binding for the further procedure. Moreover, in cases of prior criminal convictions, discipli-
116 Section 335 Criminal Code.
117 I.e. bribery committed by criminal organised groups, or persons acting
“quasi-professionally”. See sections 302, 338 and 73d Criminal Code.
118 For other public employees the general rules of labour law apply.
119 Federal Civil Service Act (Bundesbeamtengesetz), section 77. For civil servants of the Lọnder, see section 45 of the Framework Act on the Law Appli- cable to Civil Servants (Beamtenrechtsrahmengesetz) and e.g. section 95 of the Civil Service Acts Baden-Württemberg.
120 Federal Act on Disciplinary Proceedings (Bundesdisziplinargesetz), sec- tion 5.
nary sanctions should generally not be imposed unless such an addi- tional punishment is necessary.121 However, in all other respects, crimi- nal and disciplinary sanctions are independent and do not exclude each other. It might be added that criminal sentences of one year or more for an intentionally committed offence automatically lead to a removal from service.122
As far as the award of public contracts is concerned, there are two addi- tional aspects which have already been touched upon. The debarment of tenderers, sometimes supported by “black lists”, is technically speak- ing not a punitive measure for past misconduct but rather serves to pro- tect future public tender procedures from an unreliable tenderer. Inci- dentally, however, it also works as a deterrent sanction. Secondly, the position of competing tenderers has been strengthened by the right to challenge the award decision if the value of the contract exceeds a cer- tain threshold.123 In the interest of legal certainty, the award chamber cannot quash a contract which has already been awarded. However, in such a case the unsuccessful competitor may have a claim in damages against the contracting authority. The amount of damages is limited to the costs incurred through the participation in the tender procedure.124 Moreover, in order to guarantee effective remedies, the contracting au- thority is under a duty to inform all tenderers of the intended award decision at least two weeks in advance.125
Finally, the issue of appropriate sanctions is very controversial in rela- tion to corruption in the political decision-making process. Rules on the financing of political parties have been tightened once more after the scandal of the Christian Democratic Party in the 1990s. Fines im- posed on the parties constitute the main sanction. If a party accepts a donation illegally, or if its yearly accounting report is incorrect or in- complete, the party is liable to pay a fine which is twice or three times
121 Ibid., sections 14, 22, 23 and 57.
122 Federal Civil Service Act (Bundesbeamtengesetz), section 48. For civil servants of the Lọnder, the same duties are laid down in section 24 of the Framework Act on the Law Applicable to Civil Servants (Beamtenrechtsrah- mengesetz) and in the Civil Service Acts of the Lọnder,e.g. section 66 of the Civil Service Act Baden-Württemberg.
123 See above note 98.
124 Act against Restrictions of Competition (Gesetz gegen Wettbewerbs- beschrọnkungen, note 93), sections 114 and 126.
125 Vergabeverordnung der Bundesregierung (note 92), section 13.
the incorrect amount.126 The fine is imposed by the Chairman of the Bundestag. An individual liability of the responsible party officials, on the other hand, has only just been introduced in 2002. Nowadays it constitutes a criminal offence to draw up and hand in incorrect ac- counting reports, to split up donations into several smaller amounts or to get around the rules on disclosure by withholding donations from the treasurer of the party.127
Enforcement of the codes of conduct for parliamentarians was, until re- cently, much weaker. The only sanction available for a violation of these rules was its publication by the Chairman of the Bundestag or of the re- spective regional parliament.128 The lack of stronger sanctions has been widely regarded as unsatisfactory. In 2005, the code of conduct for Members of the Bundestag has been amended to the effect that the Chair may impose a fine for violations of the duty to notify and publish additional activities and earnings.129 Moreover, the issue arose as to whether parliamentarians have to remit illegal additional earnings to the state. In a couple of Lọnder, legislation to this effect is in place, and in 2005, in the context of the VW-scandal in Lower Saxony, this rule was applied for the first time by a court.130 In the meantime, an equivalent provision has also been inserted into the code of conduct for Members of the Bundestag.131