The sixth criminal senate of the Federal Court of Justice in Leipzig overturned the first judgment against the former mayor of Regensburg, Joachim Wolbergs. Wolbergs will have to answer again in court and then he may face a harsher sentence. The verdict from 2020, in which Wolbergs was sentenced to one year probation for bribery, remains in place.
The hearing dragged on into the late evening, at times the long and detailed speeches by the defense lawyers seemed like a recap of the dozens of days of trial that had been through in recent years. And then there was Wolbergs himself, who had the last word: “I saw a chamber here that obviously dealt with these things day and night.” Wolbergs started with praise, but then quickly turned into a long, emotional indictment. Trial observers and journalists who have been accompanying the Wolberg case for a long time are familiar with these scenes. “I used every opportunity during the trials at the regional court to get involved,” he said before the sighs. “Because I firmly believe that what I am being accused of is wrong!”
Ultimately, after this long day, the judges (largely) followed the arguments of the public prosecutor at the Federal Court of Justice.
At the beginning of the hearing, prosecutor Claudia Kohlschmidt explained in an almost one-hour presentation why, from her point of view, the judgments against Wolbergs from 2019 and 2020 should be partially overturned and renegotiated. The list of factual and legal deficiencies that the prosecutor listed is long, and she particularly objected to the 2019 ruling.
The two processes in 2019 and 2020 concerned donations from property developers, which flowed to the Regensburg SPD local association Stadtsüden before and after the 2014 municipal elections, i.e. to the campaign account of the former OB candidate Wolberg. The developer had transferred a total of almost half a million euros to the local association via straw people, always in tranches of just under 10,000 euros, the publication limit for party donations, and spread over several years.
The Regensburg district court saw it as proven that the donations had the purpose of buying the favor of the OB candidate. Wolbergs was then convicted of accepting benefits – but only for the donations totaling 150,000 euros between 2015 and 2016, i.e. during his time as Lord Mayor. The judges’ argumentation: Before 2015, Wolbergs was the third mayor of Regensburg and as such was not entrusted with building issues.
Wolbergs was found guilty in both trials, but in the first he remained unpunished because, in the view of the court, he was already punished enough under Section 60 of the Criminal Code. He was also certified that he did not knowingly act criminals. In the second trial, however, he was sentenced to one year probation.
Three central points were examined in Leipzig: The first is fundamental and should also meet with great interest outside of Regensburg. On the basis of the question of whether only the party donations during the time as Lord Mayor in Wolberg’s case are relevant, it must be clarified to what extent a donor is allowed to influence a political office holder. It is about the accusation of so-called “feeding” a politician in the event that he is elected to an office.
The prosecutor criticized the fact that the regional court left the donations out in the years from 2011 to 2015. Wolbergs was responsible for social issues in the city at that time, but there were also overlaps with the construction sector, especially since Wolbergs also occasionally represented the mayor at the time. Although there was no concrete, but abstract responsibility for Wolbergs as third mayor, the donations from this time were also relevant.
The second point on Thursday revolved around Section 60 of the Criminal Code, according to which a penalty is waived if the consequences of an act are already punishment enough for a convicted person. Wolbergs was found guilty in that process in 2019 by the Regensburg district court for accepting benefits, i.e. for corruption. What was special, however, was that he was exempt from punishment under Section 60 of the Criminal Code, a section that is extremely rarely used. The prosecutor had asked for four and a half years in prison. The court, on the other hand, was of the opinion that Wolbergs had already been punished enough, for example through the six-week pre-trial detention.
The prosecutor particularly complained about this point. The public’s sense of justice would be severely disturbed if it were left with impunity, argued Kohlschmidt. She explained paragraph 60 with a typical example: A father drives his own child to death while parking in the garage. He is guilty but will not be punished. “It is far from being possible that the defendant’s status would be comparable.”
Wolberg’s defense had repeatedly argued that pre-trial detention and media coverage had ruined the ex-OB professionally and economically. The public prosecutor in Leipzig did not follow this, the media interest was proportionate and Wolbergs continued to receive his remuneration even during the suspension as mayor. His political career is not over either. Wolbergs is now back on the city council. Wolberg’s lawyer Peter Witting contradicted: “No, no no! Wolbergs was driven like a pig through the village.” All points that were cited in terms of the risk of blackout were “all smashed” during the proceedings. The pre-trial detention is therefore disproportionate.
The third point: Did Wolbergs act in error of the prohibition? The Regensburg public prosecutor’s office objected to this point, among other things, during its revision. “Rightly”, as prosecutor Kohlschmidt found. Wolbergs had reinterpreted his conviction without penalty as a “factual acquittal”. Fodder for this stubborn theory was the court’s finding that Wolbergs acted in error and not deliberately criminal. Like the impunity under Paragraph 60, the “error of prohibition” is hardly ever applied. And even in this case it shouldn’t have, as Kohlschmidt found.
Lawyers had suspected even before the hearing on Thursday that this would be objected to before the BGH. A mayor who is not really familiar with the political party law and does not have to? Who shouldn’t have had the opportunity to get information from lawyers about the correct procedure for party donations? “Almost scandalous” and “questionable” lawyers called this judgment of the Regensburg Regional Court. So now the case has to be reopened.