Wed, May. 16, 2007

Phone, Fax, Cellphone Surveillance

CK - Washington.   Counsel's telephones, telefax and cellphones constitute a sanctuary where surveillance even on anti-terror grounds is disproportionate, the federal Constitutional Supreme Court in Karlsruhe ruled in the matter 2 BvR 2151/06 on April 30, 2007. A press release of May 16, 2007 summarizes facts and the nearly obvious conclusion, in German. Significantly, the court considers the tapping also a violation of the constitutional principle protecting the practice of the legal profession in which attorney-client confidentiality is fundamental.

Criminal Forfeiture for Siemens

LL - Washington.   On May 14, 2007, the Darmstadt district court convicted two former Siemens managers of kickbacks in commerce, embezzlement and assisting bribery in commerce in a yet unpublished verdict. Both managers received sentences, one of two years and the other of nine months, on probation. The court imposed monetary penalties as well.

Somewhat surprising is the outcome for Siemens. The company had not been indicted because corporate entities are not subject to German criminal law. The court ordered Siemens to forfeit 38 million euros to disgorge illicit profits.

That decision is based on §73 of the German Criminal Code. Profit forfeiture in such circumstances is a hotly debated issue in German criminal law. The decision signals an important step toward stricter anti-bribery law enforcement and confirms a trend evident over the past few years. A Siemens press release predicts an appeal of the decision which it considers to have no basis in law or in fact. None of the parties has waived an appeal.

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