I. The Factual and Legal Context
1. The Occurrence of Corruption in Germany – Spotlights and Statistics
A considerable number of scandals involving corruption have attracted the attention of the public during the last few years.3 These instances as well as statistical evidence suggest that it is the level of local authorities which is affected most by corruption. Local authorities are responsible for granting numerous official permits, as well as for a large proportion of public procurement and other contracts. Moreover, they offer chargeable services such as water supply or waste disposal. All of these activities have attracted a considerable degree of corruption. The con- struction sector, including road construction, is of particular relevance in this context. Systematic bribery of officials in building authorities has been reported repeatedly in many municipalities. The most infamous example is Frankfurt am Main where in 1987 and the following years, it was revealed that virtually the complete building administration of the city was infected by corruption. One of the greatest corruption scandals in recent years concerned the waste disposal sector and the construction of waste incineration plants in Cologne and North Rhine-Westphalia.
1 E.g. the NGO Transparency International, <http://www.transparency.
de>.
2 Cf. R. Zimmerling, Politische Korruption: begrifflich-theoretische Ein- ordnung, in: U. von Alemann (ed.), Dimensionen politischer Korruption, 2005, 79.
3 For an overall analysis of corruption in Germany see B. Bannenberg, Korruption in Deutschland und ihre strafrechtliche Kontrolle, 2002, 51 et seq.;
H.R. Claussen/ H. Ostendorf: Korruption im ửffentlichen Dienst, 2nd ed. 2002;
H. Fiebig/ H. Junker, Korruption und Untreue im ệffentlichen Dienst, 2nd ed.
2004, 49 et seq.
Criminal statistics on corruption offences show that in recent years about one third of suspects on the donor side belonged to the construc- tion sector, although in 2004 their number dropped to 11%.4 On the re- cipient side, in the same year 11.2% of suspects were officials in build- ing authorities;5 21.2% belonged to the water supply-sector,6 and 25.1%
to other local authorities.7 73% of investigated cases where the public administration was the target of corrupt activities concerned the placing of public contracts.8 A further 8.5 % were aimed at the grant of official permits.9
In addition, a considerable number of corruption cases have troubled the health sector. Due to its very complex structures, its high degree of regulation and the enormous annual turnover, this sector offers a good breeding ground for corruption at different levels. It is estimated that possibly up to 3-10% of expenditure10 in the health sector originate from corrupt or fraudulent activities. In 2004, 14.8% of suspects on the recipient side belonged to the health sector.11 The most notorious ex- ample is the cardiac valve scandal (Herzklappenskandal) of the 1990s, which involved the large-scale use of overpriced medical products for heart operations.
4 Bundeskriminalamt, Bundeslagebild Korruption 2004, 38, available on
<http://www.bka.de>. Figures of the preceding years: 18.3% in 2000; 30% in 2001; 32% in 2002; 34% in 2003.
5 Ibid., 33. Figures of the preceding years: 20.9% in 2000; 25.4% in 2001;
10.7% in 2002; 18.7% in 2003.
6 Ibid. Figures of the preceding year: 5.2% in 2002; 10.5% in 2003; not separately listed in the preceding reports.
7 Ibid. Figures of the preceding years: 17% in 2000; 7.6% in 2001; 6.4% in 2002; 13.6% in 2003.
8 Ibid., 29. Figures of the preceding years: 46.2% in 2000; 47.4% in 2001;
63.9% in 2002; 54% in 2003.
9 Ibid. Figures of the preceding years: 8% in 2000; 11% in 2001; 5.9% in 2002; 12.3% in 2003.
10 Transparency Deutschland, Transparenzmọngel, Korruption und Betrug im deutschen Gesundheitswesen, 2005, 4, available on <http://www.transpar ency.de/fileadmin/pdfs/intern/AG_Gesundheit/Gesundheitspapier_Version_05 .pdf>.
11 Bundeskriminalamt, Bundeslagebild Korruption 2004 (note 4), 30. Fig- ures of the preceding years: 16.2% in 2000; 15.5% in 2001; 34.3% in 2002;
18.8% in 2003.
The assessment of corruption in higher politics at Lọnder or federal level has to be approached with some care. It seems that specific politi- cal decisions have only been (successfully) “bought” on rare occasions.
In 2004, only 1.5% of investigated cases concerned corruption targeting the political level.12 However, severe allegations of this kind have been raised in the context of at least two spectacular scandals. They con- cerned the export of armoured vehicles to Saudi Arabia and the sale of the East German Leuna-refinery and of the oil-company Minol to the French Elf-Acquitaine, both in the early 1990s. In the first case, a state secretary in the Defence Ministry was sentenced on the charge of tax evasion and illegally accepting advantages. However, the court – relying on a statement from the former chancellor Helmut Kohl – came to the conclusion that the bribed state secretary had had no influence on the actual decision to export the vehicles. Moreover, no corrupt behaviour on the side of the involved politicians could be established. Corrupt practices of a similar nature also became evident in the Leuna-affair, however it could not be confirmed that they had spread to the level of the responsible politicians.
More significant than direct bribery is the problem of general intercon- nections between politicians and the economy. There have been numer- ous media-reports about politicians having received personal advan- tages from public or private companies and entrepreneurs who have, for example, financed expensive holidays, flight tickets or birthday parties.
The so-called “Amigo”-affair of 1993 is a particularly notorious exam- ple. In this affair, the Bavarian Prime Minister, Max Streibl, had to re- sign over allegations that he had influenced the placing of state aids and procurement contracts for the benefit of a friend who had previously paid for his private holidays. The term “amigo” has become proverbial for sleaze and inappropriate interconnections between politics and economy.
Closely related to this topic is also the aspect of additional activities and income of parliamentarians. Such additional activities are quite common and, in principle, permitted. However, the rules on disclosure are not always obeyed. Moreover, in a couple of cases parliamentarians have re- ceived salaries from private enterprises without adequate considera- tion.13 A considerable number of politicians and parliamentarians are
12 Ibid., 29. Figures of the preceding years: less than 1% in 2003; no cases in 2000 - 2002.
13 In 2004, two high-ranking politicians from the Christian Democratic Party (CDU) had to resign from their party offices because of payments re-
under contract or occasionally act as consultants for private companies and public relations-agencies – both during and after the end of their term of office. In some instances, this has led to strong political criti- cism and to the resignation of the politicians concerned.14 The case of Agnes Hürland-Brüning, state secretary in the defence ministry from 1987 to 1991, who worked subsequently as a “consultant” for the de- fence industry and was involved in the Leuna-affair, was especially deli- cate.
A significant and seemingly constant problem is the financing of politi- cal parties. More than any other institution, political parties are per- ceived by the public as being corrupt.15 In recent years, it has mainly been the aspect of private donations and their disclosure which has raised attention. In particular, the Christian Democratic Party (CDU) was shaken by a major scandal. For years, party leaders and officials had systematically collected large amounts of donations without dis- closing them properly. To a great extent they were placed in trust ac- counts in Switzerland and Liechtenstein and then channelled back as needed. The revelation of this practice led to several criminal convic- tions. A number of high-ranking party officials were forced to resign, while the CDU had to pay back more than € 20 million of public party funding. Similarly, in the Cologne waste incineration scandal the Social Democratic Party received considerable donations from the interested entrepreneur. Fictitious receipts for shares of these amounts were issued to party members in order to get around the obligation of having to disclose these donations.
Of course, cases of corruption have also occurred in the private econ- omy. However, it is corruption in the public sector that has attracted the most attention and is watched with the deepest distrust. Corruption does in fact appear to affect predominantly the public sector. Criminal statistics of the last years show that almost 90% of all investigated acts
ceived from the electricity supplier RWE. In 2005, it was revealed that for years members of the Bundestag and of the Landtag of Lower-Saxony had been on the pay-roll of Volkswagen.
14 In 2002, for example, defence minister Rudolf Scharping lost his office af- ter it had been revealed that he had received high payments from a public rela- tions-manager. However, in reality, his dismissal had deeper political causes.
15 Transparency International, Global Corruption Barometer 2005, available on <http://www.transparency.de/Globales_Korruptionsbarometer.361.0.html#
1560>.
of corruption were aimed at the public sector;16 almost 80% of suspects on the recipient side were members of the public service.17 In most of these cases it was the general public administration which was the target of corruption (75.6% of all investigated cases in 2004).18 The judicial sector is affected too, but to a much lesser extent. In 2004, only 8.1% of all investigated cases belonged to this category.19 Most of them con- cerned police authorities and penal administration, and in many cases the attempt to bribe an official had failed. Corruption of judges and prosecutors is virtually unknown.20 Finally, the political level is – as far as criminal statistics are concerned – practically irrelevant as a target of corruption. However, the numerous affairs indicated above have in- flicted considerable damage to public confidence in the integrity of po- litical decision-making.
It is difficult to come to a reliable estimation of the total scale of cor- ruption in Germany. The “corruption perceptions index”, published annually by the NGO “Transparency International”, provides some evidence. In 2005, Germany was rated 8.2 points (10 being the opti- mum) – a result which lies within the average of EU-Member States but ahead of that of the United States or Japan.21 Ratings from the last ten years have come to similar results and thus do not indicate a reliable trend to the better or worse. Moreover, the corruption perceptions in- dex is not based on objective facts but on the subjective perception of business people and country analysts.
Some conclusions can be drawn from various criminal statistics. How- ever, these statistics have to be used with care because they are based on different and sometimes incomplete data. In all statistics, figures of cor- ruption offences are quite low – at least as long as collateral offences like fraud, breaches of trust or tax evasion are not taken into account.
The police criminal statistics (Polizeiliche Kriminalstatistik) for 2004
16 Bundeskriminalamt: Bundeslagebild Korruption 2004 (note 4), 29.
17 Ibid., 36.
18 Ibid, 29. Figures of the preceding years: 71.7 % in 2000; 74 % in 2001; 79
% in 2002 and 2003.
19 Ibid. Figures of the preceding years: 17 % in 2000; 14.6 % in 2001; 6.3 % in 2002; 8.3 % in 2003.
20 Claussen/Ostendorf (note 3), 18.
21 Transparency International, Corruption Perceptions Index 2005, available on <http://www.transparency.org/cpi/2005/cpi2005.sources.en.html>.
mention 2,330 investigated corruption offences22 committed by 2,293 perpetrators.23 This corresponds to 0.05% of all investigated offences in 2004. Similarly, the “situation report on corruption” (Bundeslagebild Korruption) for the year 2004 records 1,207 cases of police investiga- tion24 dealing with 7,610 corruption-offences.25 The number of court proceedings is even smaller. In 2003, judgments against only 503 ac- cused persons were passed; 377 of these persons were found guilty.26 These statistical results are not very meaningful. It is clear that the un- disclosed figure of undetected cases is much higher, although no data is available for a reliable estimation of their actual number. A significant weakness of these statistics is also that they do not allow a trend to be derived in the development of corruption because the changing annual figures depend primarily on the intensity of investigation and on the dimension of cases investigated at the time. What can be said, however, is that corruption in Germany has reached a significant scale and that it often occurs in the form of structural networks undermining free com- petition in certain sectors. However, no “systemic corruption” of or-
22 This is the lowest figure of the last 10 years; the highest figure was 5,223 offences in the year 2000. Cf. Bundeskriminalamt: Polizeiliche Kriminalstatistik 2004, 213, available on <http://www.bka.de>, and Bundeslagebild Korruption 2004 (note 4), 84.
23 Ibid. The lowest figure amounted to 1,448 suspects in the year 1994; the highest figure was 4,593 suspects in the year 2000.
24 Bundeslagebild Korruption 2004 (note 4), 12. The lowest figure amounted to 258 cases in 1994, the highest figure to 1,683 cases in 2002. The “situation re- port on corruption” (Bundeslagebild Korruption) has been published annually by the Federal Criminal Police Office (Bundeskriminalamt) since 1994. It is based on the legal evaluation at the beginning of investigations. By contrast, po- lice criminal statistics are based on the legal evaluation at the end of police in- vestigations, when cases are handed over to the prosecution authorities. This explains why the two statistics come to somewhat different results.
25 Ibid., 13. The lowest figure was 6,743 offences in 1994; the highest figure was 15,968 offences in 2002.
26 Statistisches Bundesamt, Fachserie 10 Reihe 3 (Rechtspflege, Strafverfol- gung), 2003, 38 et seq. Reports for the preceding years have come to similar re- sults. However, these figures do not include criminal proceedings in the East German Lọnder because they have not yet established a comprehensive statisti- cal measurement of criminal proceedings. Moreover, the cited statistics do not take into account judgments which are primarily based on other offences (such as fraud etc.), even if a corruption offence has also been committed.
ganized crime undermining the political system has been observed as yet.27