There was this scene, July 2019, Regensburg District Court. Joachim Wolbergs stepped through the door of the courtroom, into the hallway, in front of the microphones and cameras. “It doesn’t get any clearer,” he said of the verdict the judge had just pronounced. Then he roared, “The veil of corruption has been laid over this city. And that is all nonsense.” Even then, it was a very creative interpretation of the judgment. After all, the court had found the then mayor Wolbergs guilty of accepting benefits, i.e. of corruption. However, Wolbergs had not received a sentence, although the public prosecutor had demanded a whopping four and a half years in prison. The mayor took this as an opportunity to reinterpret his guilty verdict as a “factual acquittal”. But the acquittal, which never existed, is now shaky.
This Thursday, not only the people in Regensburg will be looking excitedly to Leipzig. There, the sixth criminal division of the Federal Court of Justice (BGH) negotiates the appeal in the Wolberg case. The decision to be made by the BGH will be observed with interest nationwide. A fundamental legal decision on party donations is pending in Leipzig. The focus is on the question of whether and to what extent a donor is allowed to influence a political office holder.
The situation: Before and after the 2014 local elections, almost half a million euros flowed into the account of the SPD local association Stadtsüden, the election campaign account of the OB candidate Wolberg, who was initially third mayor. The money flowed over several years, in amounts just below the publication limit of 10,000 euros. The public prosecutor saw a classic case of corruption, the developer bought the favor of the OB candidate. The Regensburg district court saw things in a similar way and sentenced the developer to ten months’ probation for granting advantages. On the other hand, as mentioned, the Wolbergs received no penalty. The court saw him punished enough, for example due to the six-week pre-trial detention, which, according to Judge Elke Escher, was “not proportionate”. What she also found: that Wolbergs was not aware of his illegal actions. Several lawyers consider the judgment to be questionable, the Regensburg criminal law professor Henning Ernst Müller called it “almost scandalous”. The Federal Court of Justice now has the final say.
According to the assessment of lawyers, there are several points that the BGH could criticize in the judgment. This one is particularly interesting: The district court only declared the property developer donations in 2015 and 2016 to be criminal. Wolbergs was already mayor at that time, during which time almost 150,000 euros flowed. In the years before, the donations (more than 325,000 euros) were not a case of corruption, because at that time Wolbergs was third mayor and was concerned with social policy, but not with construction matters. The problem that arises from this: According to this logic, companies can “feed” promising candidates for public offices with party donations, as it is called in the technical jargon of corruption – with the aim of having candidates thank them with something in return after an election victory . Where the line is to be drawn is an unresolved question from a legal point of view, which the BGH is now grappling with.
Some believe they can already read the answer to this unresolved question from a decision made by the BGH last summer. The sixth criminal senate confirmed the verdict against another property developer who had been convicted of bribery in a second corruption trial against Wolbergs – and made an assessment that could be a clue for this Thursday. According to this, a public official who accepts donations can also be for sale if he “applies for another office with the same employer”. This would apply to the third mayor of Wolberg, who applied for mayor in the same city.
Looking ahead to Thursday, the omens are not necessarily good for Wolbergs. However: Whether the BGH will overturn the judgment against him also depends on the question of whether the Senate defines all donations that flowed into Wolbergs’ campaign account between 2011 and 2014 as donations that were specifically intended for his 2014 local election campaign – and not, for example in order to influence his then or later politics in Regensburg. Also exciting: How does the BGH assess that Wolbergs received no penalty despite being convicted? Impunity under Section 60 of the Criminal Code is extremely rare – for example when a mother unintentionally causes an accident in which her own child dies. Is the punish enough paragraph really applicable to Wolberg’s case?
And then there is still the “error in the prohibition”, also a legal construction that hardly any accused person ever benefits from – at Wolbergs it got a chance. Translated this means: He did not have to know the pitfalls of the party law. According to criminal law professor Müller, the application of the error of law to official offenses is particularly “unusual”. A mayor is “surrounded by lawyers” from whom he can get advice. And the “problem with the acceptance of advantages on the part of a building contractor” is obvious.
If things go badly in Leipzig for Regensburg’s mayor, who has since been voted out, the BGH (partially) overturns the judgment in the first corruption trial against Wolbergs. Then the process would have to be reopened at the Regional Court of Regensburg, where Wolbergs might then have to expect a tougher sentence. According to reports, the BGH is also negotiating the revision of the judgment in the second corruption trial against Wolbergs on Thursday, which was not so mild in July 2020: one year suspended prison sentence for bribery. It is not certain whether the criminal senate will speak its basic judgment immediately after the main hearing on Thursday.
Since the corruption affair began in the summer of 2016, Wolbergs has repeatedly protested his innocence. For him, the BGH judgment not only has a criminal but also a political significance. He has already announced that he will run again as mayor candidate in the 2026 election for the electoral association “Brücke”, for which he is now a simple city councilor. A harsher judgment afterwards would probably reduce his chances of being elected in every respect.