What are they worth, the letters of the law? For the long-standing CSU MPs Georg Nüßlein and Alfred Sauter, this value can be easily quantified: for one it is 660,000 euros, for the other even more than 1.2 million. So high were the amounts that two companies in which the two had a significant stake were able to collect as commission for the sale of Covid protective equipment to ministries. A brilliant deal, because as is usual with such deals, the two presumably did not have to do much for it. A few phone calls to the right people, an email here and there, or a face-to-face conversation. Politicians have sold their political contacts to government agencies.
The “mask affair” has no legal consequences for Nüßlein and Sauter, as the judiciary has repeatedly decided. Now the Federal Court of Justice (BGH) has made it clear that not only is there no penalty, but both are allowed to keep their money. The BGH rejected complaints by the Munich public prosecutor’s office against lifted detention and asset arrest orders.
This is not corruptibility, the BGH ruled, and took paragraph 108e of the German Criminal Code (StGB) as a measure, “corruptibility and bribery of elected officials”. It punishes members of a federal or state representative body who accept the promise of an unjustified advantage for carrying out an action on behalf of or on instructions when exercising their mandate with up to ten years in prison.
Underline: In carrying out their mandate. Because it is these letters in the law that are now paying off for politicians. They used their mandate in the Bundestag (Nüßlein) and in the Bavarian state parliament (Sauter) to arrange the deals, and one can probably say: they abused it. But “perceived” in the sense of concrete parliamentary behavior, for example in voting, they do not have their mandate for the mask shops.
This narrow wording of paragraph 108e is not an omission but an omission. The legislator, who created criminal law for himself here, was concerned with limiting his criminal liability. One motive may have been that parliamentarians are involved in a variety of ways in the business activities of companies with authorities. A company that is hoping for help or an order from the federal administration often turns to the member of the Bundestag from their constituency. Most of the time, this is done without a commission and for mutual benefit: a member of parliament who helps companies helps their employees and thus his voters. That’s how politics works. Do you want to make it a punishable offense if a few euros are paid in compensation? Or does it result in a job for your son or daughter?
Here begins corruption, which is better explained by its broader Latin meaning than criminal law: depravity. One expression is bribery and corruptibility. One pays, the other collects for the fact that he or she uses an office, a position of trust or a mandate. Corruption is destructive, in many countries it is public enemy number one. From this point of view, Nüsslein and Sauter are corrupt politicians. It is a testament to their depravity that they sold their position as representatives of the people in the pressure of the pandemic.
The Bundestag is partly to blame. The paragraph invites politicians to exhaust their mandate in business. Some see it as a ticket to prosperity. This free ticket undermines international law. Germany has signed agreements prohibiting such corruption. She never did it sufficiently.