Bundesverfassungsgericht

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Constitutional complaints against convictions for abuse of trust partially successful

Press Release No. 60/2010 of 11 August 2010

Order of 23 June 2010
2 BvR 2559/08

In three sets of proceedings which had been combined for a joint ruling, the Federal Constitutional Court has made a decision about the application and interpretation of the definition of abuse of trust (§ 266.1 of the Criminal Code (Strafgesetzbuch - StGB) from the viewpoint of the requirement of certainty under Article103.2 of the Basic Law (Grundgesetz - GG). The Court has affirmed the constitutionality of the statutory definition, which had in part been doubted in the legal literature.

§ 266.1 StGB in the version currently in force states:

Anyone who abuses an authority granted to him by statute, by an official order or by a legal transaction to dispose of the property of another or to bind another person, or violates the duty which he owes by virtue of statute, an official order, a legal transaction or a fiduciary relationship to look after the property interests of another, and thereby inflicts a detriment on the person whose property interests he should be supervising, will be punished with a prison sentence of up to five years or with a fine.

Attempted abuse of trust has not been penalised by the legislator.

The complainants in the proceedings decided by the Second Senate of the Federal Constitutional Court had been given suspended sentences for abuse of trust. The Federal Court of Justice (Bundesgerichtshof) confirmed their convictions, at least on the issue of guilt. The complainant in the first set of proceedings, according to the findings of the criminal court, managed money as the area chairman of Siemens AG in separate unauthorised accounts. In this way he withdrew it from the control of the competent organs of the undertaking and later used it for the purpose of bribery. The complainant in the second set of proceedings was the chairman of a company health insurance scheme and caused losses to its assets by granting employees of the health insurance scheme premiums of a substantial amount for several years, in addition to their salary and compensation for overtime and in excess of the discretion given to him for decision-making. The complainants in the third set of proceedings were members of the board of the Berlin-Hannoversche Hypothekenbank AG. They were charged with having, in violation of the duties of information and investigation they owed to the bank, approved and paid out insufficiently secured credit for the purchase and modernisation of prefabricated apartments for just under 20 million DM.

The Second Senate of the Federal Constitutional Court rejected the constitutional complaints against the convictions in the first two sets of proceedings. In the third case, however, it quashed the decision of the Federal Court of Justice and the judgment of the Regional Court (Landgericht) of Berlin for violation of the complainants' rights under Article 103.2 GG and referred the matter back to the Regional Court.

In essence, the decision is based on the following considerations:

Doubts as to constitutionality, which the scope of the definition of a crime would necessarily have caused looked at in isolation, can be removed by established case law of the highest courts. The Courts are therefore required if possible to dispel remaining ambiguities about the scope of application of a norm, by specification and concretisation in the course of interpretation (specification requirement). Because of the strict statutory reservation expressed in Article 103.2 GG the extent to which the Federal Constitutional Court can exercise control is increased in relation to the application of the law by the non-constitutional courts in the area of substantive criminal law.

The definition of abuse of trust is in line with the requirement of certainty in Article 103.2 GG. The legislator's regulatory concept has - in the interest of effective and comprehensive protection of property - indeed led to a very widely defined and comparatively vague criminal provision. § 266.1 StGB however reveals the legal interest to be protected as clearly as the special dangers from which the legislator wants to protect it with the aid of this definition. The definition of abuse of trust permits a concretising interpretation which has been practised for many years in case law and which has proved workable in principle in its function of creating boundaries to the definition.

The convictions under challenge in the first two cases satisfy the requirements which are accordingly to be placed on the interpretation of § 266.1 StGB. This does not however apply to the conviction of the members of the board of the Berlin-Hannoversche Hypothekenbank AG (third case).

There is no objection to the assessment that the complainants, by approving the relevant credit, have violated the duty incumbent on them as members of the board to look after the financial interests of the Hypothekenbank, i.e. to undertake a comprehensive and careful investigation of creditworthiness. However, the establishment and demonstration of a financial detriment (harm) comprehensible in economic terms, which is necessary for constitutional reasons, is lacking.

At this point the Regional Court has fallen back on the legal model of harm by endangerment: it assumed the occurrence of harm back at the point when the credit was approved and paid out, because the reduction in assets arising from the payment of the amount of the credit was not matched with an increase in assets of equal value in the form of a claim to repayment, in so far as repayment had not been guaranteed due to the absence of sufficiently valuable securities. There is no initial objection to this in constitutional law. It is true that the legal model of harm by endangerment carries with it to a greater degree the risk of overextending the definition of abuse of trust by equating present harm with risk of future loss. This would undermine the legislator's decision not to criminalise attempted abuse of trust and called into question the independence of the feature of detriment. This risk can however be countered, as harm by endangerment is established before the courts in a manner comprehensible in economic terms according to recognised methods and standards of assessment. If complex economic analyses are to be undertaken, an expert will need to be consulted.

But this is lacking in the Berlin case. The decisions of the Regional Court and the Federal Court of Justice violate the requirement of certainty under Article 103.2 GG because they have assumed financial harm, even though no findings were made which correspond with the requirements of constitutional law, and which are comprehensible in economic terms, on the issue of the detriment which could have been caused by the complainants' award of credit in violation of duty. The fact that, according to the assessment of the Federal Court of Justice, the complainants, who were responsible as members of the board, have incurred too great a risk by continuing with the granting of credit for the overall project in breach of their duties by disregarding clear recognised risks and rejecting many warnings cannot be a substitute for the finding of concrete harm.

These proceedings were referred back to the Regional Court.