Federal Constitutional Court - Press office -

Press release no. 60/2010 of 11 August 2010

Order of 23 June 2010 – 2 BvR 2559/08, 2 BvR 105/09, 2 BvR 491/09 –

Constitutional complaints against convictions for abuse of trust
partially successful


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. 


This press release is also available in the original german version.