Jürgen Fitschen, the soon-to-retire co-chief of Deutsche Bank, cut a visibly relieved figure on Monday.
After almost a year of criminal proceedings and 35 days in court, the banker had just been acquitted on charges of collusion. He was eager to put the case, in which he and four former colleagues were accused of conspiring to lie over the 2002 downfall of the Kirch media empire, behind him.
“I’m flying straight to Frankfurt and will be in my office for the rest of the day,” he said as he left the court in Munich.
But while Mr. Fitschen turned to the urgent task of restructuring the crisis-hit Deutsche Bank, others questioned whether the case should have been held in the first place.
The charges related to a civil case in 2014 in which the family of media magnate Leo Kirch sued the five current and former Deutsche Bank executives over the bankruptcy of the group. They said the bank, of which the then struggling Kirch group was a client, had forced its decline by publicly casting doubt on its creditworthiness. It collapsed a few weeks after the comments were made, owing billions.
There is hardly another country in which prosecutors go after powerful people like they do in Germany. It is extremely problematic. Frank Salinger, Professor of Business Law
The civil case was settled, but prosecutors alleged the executives colluded to protect the bank from very high damages, resulting in the criminal case.
But Josef Ackermann, who was also among the five accused and a former Deutsche Bank chief executive, condemned the “elaborate and petty investigations” associated with the case. The trial had “brought shame on the rule of law in Germany,” the Swiss banker said.
Throughout the trial, Mr. Fitschen’s rambunctious lawyer, Hanns Feigen, condemned the tactics of the public prosecutors, accusing them of bias against the bankers and suggesting they were desperately stringing out the trial because of the weakness of their case. “The prosecution doesn’t even understand its own argument!” he shouted at one key moment in the trial.
The final ruling by trial judge Peter Noll seemed to give ammunition to critics of the prosecution. Although the accusations were serious enough to warrant a trial, he said, the prosecution had completely failed to prove its case. The closer one looked at the events in question — which centered on a single meeting of the Deutsche Bank management board in January 2002 — the less significant they seemed, he said. Ultimately the discussions within the bank had followed “entirely normal procedures,” Mr. Noll concluded.
The trial of the Deutsche Bank executives is only the latest in a series of high-profile prosecutions of senior managers in Germany. And, like this trial, many of them have ended in acquittal – and with questions being asked about the benefits and costs of the prosecution.
Last month saw the collapse of a case against Wendelin Wiedeking, the former president and chief executive of Porsche. Mr. Wiedeking, along with another former Porsche manager, was accused of stock market manipulation in connection with the company’s attempted takeover of Volkswagen in 2008. In that case, the judge’s verdict was brutally dismissive: “There is simply no substance to the accusations made by the state prosecutor — nothing. In front, in back, in the middle: nothing.” The prosecution still has leave to appeal in that case.
Banks have been a favorite target of German prosecutors since the financial crisis of 2008. But here too, prosecutors’ records are patchy. In 2014, another year-long trial put the entire former board of directors of HSH Nordbank in the dock. Its former boss Dirk Jens Nonnenmacher and five other former executives were accused of approving dubious financial transactions which were ultimately damaging to the bank.
But Mr. Nonnenmacher and the others were acquitted, with the judge finding that while the board’s actions may have been unwise, even reckless, they were not illegal and not unusual in the world of banking.
A trial according to the rule of law is something no one should be ashamed of. Peter Noll, Deutsche Bank Trial Judge
It is generally acknowledged that charges of the kind brought in the Deutsche Bank, Porsche and Nordbank trials are hard to make stick. The law is highly complex, the facts are hard to establish, and the actions under investigation often lie long in the past.
But the series of high-profile trials has also prompted complaints from legal scholars, arguing that prosecutors are deliberately pursuing senior executives, possibly in an attempt to further their own careers, possibly in response to public distrust of business and finance in the wake of recent financial crises.
Speaking to the Swiss magazine Bilanz after the latest trial, Frank Salinger, a professor of business law at Munich University, said: “Today, the desire to investigate economic crimes is higher than it has ever been. There is hardly another country in which prosecutors go after powerful people like they do in Germany. It is extremely problematic.”
Other commentators say there is no witch hunt against bankers and company directors. Writing in the Süddeutsche Zeitung newspaper, columnist Heribert Prantl said the Deutsche Bank case was actually a triumph for German justice. The sheer complexity of financial cases meant energetic prosecution was essential. It was up to a strong, independent judiciary to decide on the merits of a case. “In cases of doubt, alleged economic crimes must be tried. And if there is still doubt at the end of the case, then the defendants must be acquitted. That’s the rule of law,” he concluded.
On this point, the judge at the Deutsche Bank trial agreed. There were grounds for prosecution, he said in his judgment, and for a careful and comprehensive trial. “A trial according to the rule of law is something no one should be ashamed of,” he wrote in an apparent swipe at Mr. Ackermann.
Mr. Fitschen, meanwhile, returns to his Frankfurt office still facing a raft of problems before he bows out next month. Deutsche Bank is not yet free of the many scandals and lawsuits which have plagued the company in recent years. But also up for discussion at the AGM are: huge losses, boardroom turf wars, cancelled dividends, and a share price worth a fraction of what it was last year.
Michael Brächer is a financial editor in the Handelsblatt investment team in Frankfurt. Kerstin Leitel covers banks and insurance companies, from her base in Munich. Volker Votsmeier is an investigative reporter with Handelsblatt. To contact the authors: [email protected], [email protected] and [email protected]