Mannesmann, Prosecutorial Appeals, and the Search for Truth

Before I write a gigantic comment on the Mannesmann case, I just want to comment on the fact that my blog seems to have been mentioned on the pages of a university website.  I admit, it is true that I sometimes teach at a German university.  My colleagues are nice, dedicated people who tolerate my peculiarities.  They gave me a tiny little office and a tiny little salary, and I teach the students a few of the things I know.

Nevertheless, I grew up in Texas, where keeping your distance from institutions is regarded as necessary.  I want to make sure everyone understands that this blog is entirely my own private creation, and has nothing whatsoever to do with any university or other institution.  Nobody has any control or influence over what I say here except me.

Now enough with the legal disclaimers and declarations of independence.  Yesterday, the Bundesgerichtshof (sort of like the U.S. Supreme Court) did something interesting — they acted on an appeal by a prosecutor an reversed an acquittal in the trial court.  I thought this was worth a quick pre-holiday comment, since a "prosecutorial appeal" like this is impossible under American law.

The background is the sale of the German Mannesmann communications conglomerate to the British Vodafone company back in 2000.  During the negotiations, the Mannesmann board agreed to pay former directors of Mannesmann very large bonuses for their participation in the negotiations.  Klaus Esser, former CEO of Mannesmann, pocketed a cool €30 million. Someone filed a complaint with the Düsseldorf district attorney’s office, which started an investigation.

Esser and his co-defendants (including Josef Ackermann, who has since become CEO of Deutsche Bank) claimed the payments were proper.  The board approved the bonuses to key players on Mannesmann’s side to compensate them for the imminent loss of their jobs and for their critical negotiation skill, which resulted in the sale to Vodafone at a good premium and, thus, a benefit for all Mannesmann shareholders.  Nonsense, said the prosecutor.  The payments were far out of proportion to any services rendered and represented a waste of the shareholders’ money and a betrayal of the directors’ duties to Mannesmann shareholders.

A hugely-publicized trial was held in Düsseldorf in 2004.  The case was one of the the most important business-law trials in German history.  On 22 July 2004, the judge of the regional court acquitted all the defendants.  Although she found some of the defendants’ dealings questionable, they were lapses in judgment, not crimes.

In the United States, the case would end here. If the jury finds the defendant not guilty, that’s the end of the story, once and for all.  The prohibition on Double Jeopardy prevents the state from prosecuting the defendant for that crime again.  The rationale for this rule is that being put on trial itself is a major interruption in someone’s life, and the state must be prevented from using it to punish people against whom it does not have a genuine legal case.  The state gets one shot at convicting you, and one shot only.  If the jury does not agree, the state cannot appeal; the case is over.

In Germany, though, the prosecution can appeal judgments of acquittal, which it did in the Mannesmann case.  The German Supreme Court just reversed the acquittal, which means the defendants will be sent back to district court and tried again.  (The judgment, which I haven’t yet read, is apparently interesting and wide-ranging.  Perhaps I’ll comment on it later.)

The prosecution’s ability to appeal shows an interesting conceptual divide between American law and Germany’s civil-law system.  The American idea is highly procedural: the truth, whatever it might be, emerges only from the adversarial back-and-forth combat of the trial process.  Once the trial has been held, the result of the trial is the truth — or at least as close as we can humanly get to the truth.  There may be a real truth (did he really do it?) somewhere out there, but the only truth that counts for the purpose of the legal system is the jury’s verdict.  If the jury acquits the defendant (which is very rare, but can happen), the defendant can walk out of the courtroom, face the television cameras, and proudly confess to the very crime of which he was just acquitted.  He will face no legal consequences.

This fact stuns and disturbs many Continental observers, because in the civil-law context, it is assumed that the trial is only a vehicle for establishing the real truth.  The ability of the prosecution to appeal acquittals in Germany makes sense under this view.  In the U.S., the system lets defendants appeal to show their conviction was a mistake.  But under the German view, it is just as likely that some mistake was made at trial that led to the mistaken acquittal of the defendant. But the real question is not who the error benefited, the real question is whether the error led the trial court away from the "real" truth.  If the state can show such an error happened, the trial must start again.

I don’t have a strong opinion about this myself, but I think it highlights an interesting difference in mentality.  Other Americans do have strong opinions, though.  Conservative American legal scholars admire European criminal justice systems (it’s about the only thing American conservatives admire about Europe, except for the cars and the wine). 

These scholars see European criminal trials as a efficient, no-nonsense searches for truth, in comparison with American "circus" trials.  European trials, in these scholars’ view, feature no silly theatrics for the jury, or trivial fights about rules and procedures — just a search for the truth.  A good statement of this point of view can be found in the book Trials Without Truth, by Prof. Charles Pizzi, an American who has studied Continental criminal-justice systems, which he admires as "strong."  In these countries:

A defendant who has committed a serious crime knows that if the evidence against him is strong, he is likely to be convicted.  The chances of distracting the fact finders from the task at hand or of obtaining a mistrial by baiting a judge into error are very slim.  In this situation, if a defendant wishes to enter into an agreement that will assure him a somewhat lighter sentence in return for avoiding a full trial this makes sense, given the limited judicial resources in most countries.  While the defendant does receive a break in terms of the sentence, he admits to what he did and hopefully the sentence imposed is roughly appropriate to the crime. (185)

I am not in full agreement with Pizzi, but I thought it might be interesting to German Joys readers to know that there are people out there who’ve studied the German justice system and found much to admire. 

Well, with this long post I’ll probably shut up for a while, since the holidays are upon us and I will be flying back to the U.S.  I hope everyone’s holidays are safe and pleasant, and that you’ll come back for more German Joys in 2006…

7 thoughts on “Mannesmann, Prosecutorial Appeals, and the Search for Truth

  1. sorry for being such a bore, but some of the comparisons are just off. german law also adheres to the “double jeopardy”-principle (ne bis in idem, art. 103 III GG). what happened in the mannesmann-case has nothing to do with the question as to whether “the truth” is established in criminal proceedings, be that only for the purpose of these proceedings and the following judgement or in a wider sense. the reason the bundesgerichtshof repealed the decision of the court in düsseldorf is because the judges at the bundesgerichtshof decided that the judges in düsseldorf made errors in applying _the law_ to the facts of the case. it is not a dispute about “facts”, but about the application of the law to these facts. yes, the differences between (anglo-)american and german/civil-law-system criminal proceedings need to be pointed out, but this might not be such a good example.


  2. Sorry, mark, it appears to be you who has not quite gotten it. In the American court, if there was an acquittal (which is very rare, usually trials without conviction are really hung jury trials because juror no. 8 just doesn’t want to agree). However, if there really was a full-blown acquittal, the prosecution’s options for a re-trial are zilch, no matter if there supposedly was a mistake of fact or of law.

    Of course, for some people even an outright acquittal can’t straighten out their record in public opinion. Think of poor Fatty Arbuckle, whom many still wrongly regard as an ever greater bottle-neck player than Duane Allman. 😉

    Art. 103 III GG on the other hand just more narrowly prohibits a double punishment for the same crime (“ne bis in idem”). It’s supposed to stop prosecutors from again charging a criminal with the crime for which he has just paid a fine or served a sentence, just because technically those crimes were not yet time-barred.


  3. sorry, let me rephrase that. my point wasn’t that it’s not an interesting difference between american and german law systems that the prosecution can appeal and that this is not a good case to demonstrate it. obviously, it is an interesting difference and this is a good case to demonstrate that. however, it has – in my understanding – nothing to do with “double jeopardy” (which equals “ne bis in idem”), as, technically, the mannesmann guys aren’t being tried “again”, cos the bgh-decisions makes the first trial null and void, it never became “rechtskräftig”, so in terms of the law – it doesn’t exist. so it is my opinion that starting the comparison with the double jeopardy-principle as a reason for the differences is misleading; the comparison is off. “ne bis in idem” says more than you make it sound, jan. but whatever. my second point was that i think that it is an important difference between american and german systems that in america you can theoretically walk out of court once you’ve been acquitted and say “but i actually did it”, whereas in germany that’s not such a good idea (at least once the judgement has become “rechtskräftig”), even if such a move wouldn’t automatically lead to a re-trial. so, while i think that is an important difference, the mannesmann-case is a bad example, cos it’s actually about something else. and finally, my point was that the german systems does know the concept of (let me call it) “procedural truth” that might differ from “real truth”. discrepancies between the two may exist and will not alone guarantee a re-trial. again, while there are differences in mentality, it is my opinion that this is a bad example to demonstrate that.


  4. Hey! You two! I don’t get it anymore.
    Well .. I could, but just because I’m german just like you and I’m too lazy to use at the moment. So, if you’re debating on english use english terms and not “Art. 103 III GG” or “bgh-decisions” (BundesGerichtsHof), because we might have international readers. Takes another layer of abstraction though … tough luck! :-p
    OR just talk on german already as it’s your mother tongue as it seems, but Mr.Hammel hasn’t made it clear that he tolerates discussions in foreign lingos.

    (Mr.Hammel, I’m tempted to say “Andrew” as
    1.) this blog is, as you say, personal and additionally
    2.) I heard addressing one by first name is quite common in USA. What’s correct?)
    By the way, it’s as far as I know a problem in the german blog-scene how to address the author, since not everyone wants to be addressed by first name and not everybody puts definite hints on how to be called in his entries. Formal or informal, that’s the question. [Take “Indiskretion Ehrensache” versus “Shopblogger” for instance]


  5. Nobiz, any citation of art. 103 III GG other than, well, “art. 103 III GG” would be just plain wrong in any language. If you are too lazy to find out what you’re writing about, why don’t you just shut up.


  6. “Nonsense, said the prosecutor. The payments were far out of proportion to any services rendered and represented a waste of the shareholders’ money and a betrayal of the directors’ duties to Mannesmann shareholders.”
    Did they really put it this way ? In the BGHs press release the term shareholder isn’t mentioned at all*. Instead they usually refer to the “Mannesmann AG” itself and not its shareholders. This distinction may on the face of it appear minuscule, but it highlights an important cultural difference concerning a corporations social role in Germany (and probably the rest of continental Europe) vis-à-vis the US, i.e. an emphasis on stakeholder capitalism as opposed to an emphasis of shareholder capitalism.
    So here is another interesting difference about those two countries, which we can infer from this case.

    *it is mentioned once, if one counts “Steigerung des Aktien- und Unternehmenswertes” as an indirect mention of shareholders who obviously have an interest in that.


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