The tribunal for serious fraud ‐ the continental European experience

Pages28-37
Publication Date01 Jan 2004
DOIhttps://doi.org/10.1108/13590790410809013
AuthorBarbara Huber
SubjectAccounting & finance
Journal of Financial Crime Ð Vol. 11 No. 1
The Tribunal for Serious Fraud Ð
The Continental European Experience
Barbara Huber
INTRODUCTION
In Germany, neither white-collar crime in general
nor the agencies which have to deal with this sort
of criminality attract the interest of researchers any
more: the days of great concern in governmental,
police and academic circles with white-collar crime
have gone since the 1970s Ð this is now the decade
of organised crime (though going out) followed by
a keen interest in terrorism (coming in).
However, white-collar crime is of course still
there, it is a fact all over Europe on the national as
well as on the transnational or supranational level
and is not left unobserved by the relevant authorities.
Only in December 2001 the German Federal Crime
Oce (Bundeskriminalamt) in cooperation with the
La
Ènder published its ®rst `Federal Survey on the
State of White-collar Crime' (Bundeslagebild
Wirtschaftskriminalita
Èt).
1
In another report of 2001
dealing with the crime situation in Germany gener-
ally Ð the periodical security report publish ed
jointly by the Federal Ministry of the Interior and
of Justice
2
Ð the phenomenon of white-collar
crime and its control on the police and state prosecu-
tion level is also dealt with in a lengthy chapter. This
paper examines only the attitude towards sanctions in
the work of the tribunals.
SERIOUS FRAUD: THE PHENOMENON
OF WHITE-COLLAR CRIME
For an evaluation of the structure and eciency of the
special tribunals for white-collar crime it may be
useful to present a rough picture of the scope and
kind of this sort of crime in Germany as emerging
from the police statistics for 2000:
Registered economic oences: 90,000. This is
only 1.5 per cent of all registered oences.
Damage caused by registered economic oences:
more than DM10.5bn (e5.5bn), forming nearly
60 per cent of all material damage resulting
from known criminal activity.
It must be borne in mind that these are only the
known ®gures relating to criminal economic
oences regulated for in the criminal code and in
approximately 200 other federal acts dealing with
economic matters (eg tax oences/Abgabenord-
nung).
3
In addition to these crimes in a technical
sense there are numerous non-criminal violations
of economic laws (comparable with regulatory
oences in the English structure) which can be
sanctioned in a simpli®ed procedure by non-crim-
inal ®nes of sometimes a considerable amount of
money (called Ordnungswidrigkeiten). For example,
all breaches of the Act against limitation of com-
petition (Gesetz gegen Wettbewerbsbeschra
Ènkung) of
1957 are only regulatory oences of a non-crim-
inal character. The bulk of these Ordnungswidrig-
keiten however, though also considered as white-
collar oences, do not go through the police-
prosecution-criminal court channel but are dealt
with by administrative agencies.
Thus, the overall scope, structure and development
of economic delinquency as a whole cannot be estab-
lished; all there is as a foundation is the known and
registered number of criminal oences in the eco-
nomic ®eld. The statistic as such is not a reliable
source. Not only (obviously) does it exclude unre-
ported and unrecorded oences, but it does not
contain those cases dealt with by the specialised
state prosecution oces or by the ®nance authorities
without involvement of the police.
Most of the statistical ®gures refer to small
oences; cases considered to be more serious with a
damage of more than DM1,000 (e500/£330) count
only for about 10± 15 per cent of the total.
4
This
sector of serious white-collar crime is dominated by
receiving by deception (two-thirds) (Betrug), fol-
lowed by tax avoidance, bankruptcy oences,
fraudulent conversion/misuse of trust (Untreue),
oences in connection with the working place,
oences against company law (GmbH Gesetz) and
against the insurance laws (Reichsversicherungen).
5
There has not been a steady rise in economic crime:
in 2000, cases fell by 16.2 per cent compared with
1999, though this may have been due to changes in
enforcement behaviour.
6
Page 28
Journal of Financial Crime
Vol.11, No. 1, 2003, pp. 28 ±37
#HenryStewart Publications
ISSN 1359-0790

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