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16th October 1997, III ZR 23/96, NJW 1998, 751

BGH NJW 1998, 751
Bundesgerichtshof judgment of 16th October 1997, III ZR 23/96 (Köln).

This case is first published in the German Law Archive courtesy of:

Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz

Translated by Mr Raymond Youngs, Southampton Institute

The plaintiff was until the end of 1988 a member of the board of directors of the KHG AG. On the application of the state prosecutor, the Amtsgericht (district court) ordered the arrest on the 27th February 1990 of the plaintiff and others for suspected breach of trust (Untreue) to the detriment of KHD. He was arrested on the 14th March 1990 in Italy, and brought to Germany. On the 11th May 1990 he was released from custody on conditions. The order for arrest was later revoked and the investigatory proceedings against the plaintiff discontinued. The order for arrest was based effectively on an accusation by B (who himself was in custody awaiting trial). B had claimed that he had arranged with the plaintiff at a hunting event in the Westerwald in 1983 to manipulate accounts for wood deliveries to the detriment of KHD (“the hunting hide agreement”); and that the plaintiff had received substantial sums of money for this. This accusation was substantially incorrect. At the time of his arrest the plaintiff was also managing director of the V-GmbH and had a consultancy contract with the P firm, at an annual fee of 50,180 DM. This firm terminated the contract on the 11th May 1990 with immediate effect after the press had reported the arrest of the plaintiff. On the 15th May 1990, the plaintiff and the V-GmbH agreed to cancel the managing director’s contract. The Amtsgericht decided that the plaintiff should be compensated for the harm resulting from the arrest from the 14th March to the 11th May 1990 in accordance with the Compensation for Measures related to Criminal Prosecution Act. The plaintiff claimed as material harm his loss of earnings with the V GmbH and the P firm and legal and other expenses. The Ministry of Justice of the defendant state (Land) accepted liability for material harm in the sum of 16,664.64 DM. This sum consisted of part of the legal and other expenses.

In the present claim the plaintiff seeks amongst other things compensation for loss of earnings due to the termination of the consultancy contract with the P firm, further legal costs and a finding that any further harm resulting from the termination of the consultancy contract should be compensated.


II. The investigating state prosecutor when examining whether an order for arrest should be made against the plaintiff, stated there was strong suspicion of breach of trust (§ 266 of the Criminal Code and § 112 (1) sentence 1 of the Criminal Procedure Code). The appeal court regarded this as a culpable violation of official duty on his part. That satisfies legal examination in the end result.

1. According to the case law of the Senate certain measures by the state prosecutor, which include application for issue of an order for an arrest are not to be examined in official liability proceedings for their “correctness” but only as to whether they are justifiable [references omitted].

Proceeding from this legal principle, the appeal court held that the assumption by the state prosecutor that there was strong suspicion at that time of breach of trust by the plaintiff was unjustifiable. It interpreted the statements of B, on which the state prosecutor principally based his assessment, as meaning that the plaintiff and B in their conversation of August / September 1983 (the hunting hide agreement) had agreed to a future manipulation of accounts. This would mean that the manipulations would only have begun after this point in time. In reality, so the appeal court found, it was already obvious at the point in time of the application for the order for the arrest (on the basis of witness statements and other documents on the investigatory proceedings) that accounting manipulations of this kind had been going on since the nineteen sixties. In these circumstances, the accusation made by B was incredible from the start, and the application for the order for arrest was unjustifiable.

This assessment can only be examined by the court hearing the appeal in law by considering whether the judge of fact misunderstood the concept of justifiability, violated rules of logic or general principles of experience and considered all the circumstances which were of significance for the judgment [references omitted]. The appeal in law does not reveal mistakes of this kind. Insofar as it complains of a violation of rules of logic it puts its own assessment of the facts in place of those of the appeal court in a manner which the rules about appeals in law do not permit. The procedural objections raised by the appeal in law in this connection have been examined by the Senate and not considered to be decisive. No ground was therefore found here either (§ 565 a of the Civil Procedure Code). It accordingly has been established in a binding manner that the assumption of strong suspicion on which the application by the state prosecutor for an order for arrest was based was unjustifiable and making the application for an order for arrest was therefore contrary to official duty.

2. The appeal court also, without any legal error, found the investigating state prosecutor to be culpable. In this connection it basically assumes that no blame as a rule attaches to an official if a collegial court with several legal experts sitting on it has regarded the official action as objectively lawful [references omitted]. According to the view of the appeal court, this general principle, from which the Senate has repeatedly permitted exceptions [references omitted], did not apply here. There are no legal grounds for objecting to this in the end result.

(a) The appeal court denied that the principle applied here, even though the civil chamber of the Landgericht regarded the conduct of the state prosecutor as justifiable and therefore as objectively in accordance with his official duties. It considered that the chamber basically proceeded in this assessment from a legally flawed approach. Whether this is correct does not need to be considered, because in any case there is another ground for the said principle not applying here.

The principle is based on the consideration that a better understanding of the law cannot as a rule be expected and demanded from an official than from a collegial court with several legal experts sitting on it [reference omitted]. This justifies a denial of culpability only in those cases in which the collegial court – after careful examination – has affirmed the legality of the official action. If on the other hand the collegial court has merely approved the action on the basis of a yardstick for testing – here the yardstick of justifiability – which is reduced in comparison with the official’s own duty of testing, this does not necessarily mean that the conduct of the official should be assessed as lawful. Whilst therefore in cases like the present one the official himself has a duty to regulate his conduct entirely by the yardstick of legality, the judicial examination in the official liability proceedings decides merely on the basis of the reduced yardstick of justifiability whether he has acted in accordance with his official duty. In such cases the principle becomes subject to a further exception over and above the group of cases decided by the Senate so far. The defendant state cannot therefore successfully rely in the present case on the first instance judgment for saying that no accusation of culpability can be levelled at the investigating state prosecutor.

(b) The appeal court was also right in not considering itself to be required to apply the general principle by the decision of the 14th great criminal chamber of the Landgericht in the proceedings concerning the complaint about arrest. This is because a comprehensive and careful examination of the issue of lawfulness which could justify the application of the principle did not, according to the findings of the appeal court, take place in those proceedings. The appeal court explained in this respect, in its assessment as a judge of fact of the circumstances which influenced the proceedings concerning the complaint about arrest, that the criminal chamber had “tested in an extremely summary fashion” the question of strong suspicion “and instead of this, concentrated on the question of the…danger of flight”. It concludes this from the fact that the decision by the chamber was issued on the same day as the decision by the Amtsgerichtthat there would be no review. In a “fast-track” procedure of this kind, a dependable formation of opinion by the collegial court was not possible in the light of the scope of the documentation. This assessment, the real core of which was not addressed by the appeal in law, is confirmed by the content of the decision about the complaint:

The Amtsgericht in the original order for arrest had suspended its execution. The state prosecution service complaint against this only disputed the exemption from arrest. The attention of the criminal chamber was therefore principally directed to the question of whether the danger of flight was to be assessed as so small that a suspension of execution should be considered. It is true that the criminal chamber was also obliged of its own motion to examine the question of strong suspicion. In this respect however it contented itself, according to the wording of its decision, with referring to the order for arrest and pointing out that this was essentially based on the testimony of the co-accused B, who severely incriminated the plaintiff. This reasoning makes it clear that the assessment of strong suspicion which influenced the order for arrest and formed the basis of the application for the order for arrest, and which the appeal court regarded without any legal error as unjustifiable, has left its mark on the decision by the Landgericht about the complaint.

On the basis of the findings made by the appeal court the starting point must accordingly be that the criminal chamber did not assess the established facts of the case carefully and exhaustively; or it formed its conclusion that there was strong suspicion from facts established on the basis of procedural irregularity. In such cases the general principle does not apply [references omitted].

3. The statements of the appeal court about the extent of the claim for official liability awarded to the plaintiff and about the calculation of the period covered by the declaration are not challenged by the appeal in law.

©1999 University of Oxford. Since 2002: © Translation The University of Oxford and Professor Markesinis 1999. HTML edition by Lawrence Schäfer. © 1999 Gerhard Dannemann.

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