Contacts
Criminal law
Our activities in this field focus on economic and tax offences, and on criminal and administrative offences in connection with road traffic. We advise and represent corporate clients from industry, commerce and the banking sector, and private individuals. Our functions include the conducting of defence, consultancy and compilation of expert opinions in connection with questions of criminal law, and providing support to persons in their capacity as witnesses, for example in matters of economic and fiscal offences. This also includes representing persons who have suffered losses as joint plaintiffs.
Criminal investigations have drastic and far-reaching effects on those involved. It is therefore our aim to achieve a withdrawal of prosecution in the phase of investigation itself. In such a way, the strain on our clients and the damage to their reputation and that of their businesses otherwise imposed by the bringing of charges and public criminal proceedings can and should be avoided.
The trend towards the use of criminal proceedings and sanctions in criminal law not only to combat the misconduct of individuals but also to control entrepreneurial activities in broad areas of industry and commerce can have unforeseeable consequences for individuals in those areas of activity. Practices which are still generally customary today and regarded as both appropriate and socially acceptable may suddenly be called into question and criminalized by the public prosecutors.
The field of traffic offences is also gaining in importance, as its effects on those concerned may in some cases have existential consequences.
Our activities in the field of criminal law focus on the following areas:
Insolvency and criminal law
The criminal law on insolvency covers commercial failure by directors and board members. Even applications for insolvency proceedings regularly set prosecution mechanisms in motion. Effective defence in insolvency proceedings predominantly has to be orientated towards the entrepreneurial crisis as defined by independent criteria of criminal law (over-indebtedness under Section 19 of the Insolvency Code or illiquidity under Section 17); here, the practice of prosecutors is frequently to make premature and inaccurate assumptions which do not hold water before the courts.
Criminal law relating to economic offences
The criminal law relating to economic offences is characterized by contradictions between criminal acts on the one hand and the practices and constraints of business life on the other hand. In brief, competition is faced with corruption, risk-taking with criminal breach of trust, acumen with fraud, and failure with criminal bankruptcy. Consultancy and defence have to follow the complexities of the circumstances, the capability for interpretation of the laws and regulations, and the needs of the client: Rapid completion of investigations without publicity may just as well be the attorney's role as may the willingness to enter into conflicts and the ability to travel a long road together with the client.
Commercial risk and breach of trust
The growing importance of breach of trust (Section 266 of the Criminal Code) in the activities of decision-makers in private enterprises and the public sector is well known, and documented by extensive media coverage of proceedings against mayors, civil servants and even theatre managers on account of so-called breach of budgetary trust, and actions against governors of charitable associations, board members of joint stock companies and directors of limited companies and cooperatives. As the law by no means presupposes enrichment or the intention of enrichment, and the crime is constituted merely by a fiduciary relationship, a breach of duty and a pecuniary detriment to the trustor (for which it is sufficient for assets merely to have been put at risk), investigations are the order of the day in cases of failed commercial ventures, expenditure regarded as unreasonable, or omission to seize opportunities to make a profit.
As legal entities such as companies or associations and public law corporations or institutions have their own separate assets, detrimental transactions such as an insufficiently secured loan granted by a board member of a savings bank or an unsuccessful investment made by the board of a joint stock company may become the subject of an investigation.
The demarcation between permissible commercial risk on the one hand and criminal breach of trust on the other hand is established in a series of proceedings from the lower to the higher courts. If – which is by no means rare – a verdict in favour of the defendant alleged to be in breach of trust is only reached by the Federal High Court of Justice, their professional career has in the meantime been destroyed, the costs of protracted proceedings may have led to penury and – for the enterprise – to serious damage by media reporting. In a recent verdict, the Federal High Court once again had to deal with a bad loan and – clearly correcting the verdict of the Regional Court – drew attention to the necessity of a causal connection between a breach of duty and a loss of assets which occurred, and to the need for intensive deliberations in the determination of action by intent.
Competition and corruption
This field includes gifts, encouraged by the relevant competitive environment and often following the "rules" of the market, made to staff in key positions of an enterprise awarding a contract. However, not only the granting of benefits to "classical" civil servants is liable to prosecution, but also such to any official who works on behalf of and in the interest of a public corporation. The mass of proceedings instituted against doctors in hospitals and employees of medical equipment and pharmaceuticals companies on account of their sponsoring (trips to congresses and provision of equipment) of the hospitals and their doctors as bribery and corruption provide sufficient evidence of this, as do the proceedings against self-employed planning engineers and employees of institutions awarding contracts on the one hand, and construction firms on the other hand, associated with nearly every large-scale building project in Germany.
While gifts to employees of private companies remained in practice exempt from prosecution into the first half of the 1990s and Section 12 of the Unfair Competition Act was hardly ever applied, more intensive prosecution is to be expected following the incorporation of "employee bribery" in core criminal law (Section 299 of the Criminal Code). The same applies to agreements made during a bidding process, which frequently remained unpunished under fraud regulations up to the adoption of Section 298 of the Criminal Code, as detriment or loss could not be proved. Section 298 of the Criminal Code establishes an offence which requires no such evidence.
The offences previously limited to domestic business relationships have now – following the globalization of the economy – also been placed under penalty in the international context by the Act to Combat International Corruption (IntBestG) of 15 February 1999. The "useful expenses" paid to foreign officials for the purpose of gaining orders (predominantly in Asia and Africa, and in the former Eastern Bloc states) which were not covered by criminal law until that time are now subject to prosecution under German law, with a corresponding obligation on public prosecutors to commence investigations as dictated by the principle of legality.
Traffic offences
The risks entailed in committing road traffic offences appear relatively trivial. However, when one considers how quickly even minor infringements can lead to temporary or even permanent disqualification from driving when no professional defence is made, and how far-reaching the effects can be, even to the extent of financial ruin, the extent of the problem becomes clear.
In this context we provide comprehensive advice and representation, which also include methods of shortening disqualification periods and regaining a driving licence.
Your contact:
Wilhelm J. Wimmer, lawyer, specialist in criminal law (Dormagen)