Yesterday, Cologne’s senior public prosecutor, Anne Brorhilker, resigned and asked to be released from her position as a civil servant. Civil servants rarely do this because it means they lose their pension rights. The fact that Anne Brorhilker is leaving her office despite these harsh consequences shows that she is extremely serious about it. And something must have happened.
Anne Brorhilker is an international celebrity in professional circles. She is the face of the Cum-Ex investigation. She has been investigating this particular variant of tax fraud since 2013. It started with a bang: at the end of 2014, it launched a global raid to find evidence. The fact that the German courts now classify cum-ex practices as criminal tax evasion is also due to Brorhilker’s investigations. She was unusually courageous and took on the big players in the financial industry.
Accusation instead of acquittal
Criminal tax proceedings are usually highly complex. They tie up public prosecutor’s resources for a long time, which are then missing elsewhere. It is therefore not uncommon to discontinue proceedings against the payment of a fine. Then there will be no trial and verdict. The state has saved work and the suspect does not have to go to court. This can be seen as reasonable from a pragmatic point of view. But you can also criticize it as buying your freedom through a fine. This does not reflect well on the rule of law.
Chief Public Prosecutor Brorhilker did no such thing. With extreme commitment she carried out investigations right up to the indictment. This made harsh sentences against the cum-ex fraudsters possible. Of course, this didn’t just make her friends. They are particularly critical of the financial industry and parts of politics. Their relentless and fearless persistence even has a direct impact on politics. The fact that there is a parliamentary committee of inquiry into the Cum-Ex affair and the involvement of the then First Mayor Olaf Scholz in Hamburg would be unthinkable without their investigations.
Headwind from politics
Of course, such a person faces headwinds. The suspects defend themselves with all means possible. The best lawyers pull out all the stops. This is not a problem for experienced prosecutors. What is important, however, is that they have the backing of their justice minister in politically explosive proceedings. He is the one who can and must fend off the often covert political attacks against the investigators.
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Unlike in many other constitutional states, prosecutors in Germany are not independent of politics. They must obey the instructions of the Minister of Justice. If a justice minister hinders or even prevents investigations, prosecutors cannot make any progress. This makes investigations bordering on politics difficult, and often impossible. The investigation into the cum-ex problem is an example of this. When it comes to the question of the involvement of Hamburg politicians – not just ex-mayor Olaf Scholz – the investigations are making little or no progress. This is also due to bureaucratic-political resistance.
A look at Italy shows how things could be different. In 1992, prosecutors there uncovered a massive corruption scandal that rocked Italian politics. The action called “Mani Pulite” would not have been possible without the independence that the Italian Constitution guarantees not only to judges but also to prosecutors. Would the public prosecutor’s office in Germany, which is bound by instructions, be able to combat government crime on such a scale? The Brorhilker case makes doubts about this continue to grow.
Lack of support from Justice Minister Limbach
Chief Public Prosecutor Brorhilker did not have the urgently needed support and political backing from her Minister of Justice. This became clear in September 2023. NRW Justice Minister Benjamin Limbach wanted to reorganize her department. Half of their employees should continue to work under new management. Brorhilker criticized this heavily in an internal letter. The public perceived this as an attempted “disempowerment” of the cum-ex investigator.
An overly stubborn public prosecutor should be stopped. That was certainly a correct assessment. Reorganizations have long been a proven means of exercising bureaucratic power. After a public outcry, the minister dropped his plans. Since then, the relationship between him and his senior public prosecutor can be considered to be broken. A big problem for Brorhilker. It is therefore missing an indispensable prerequisite for sensitive investigations in the explosive border area between the financial industry and politics.
Anne Brorhilker is – still – a loyal civil servant and doesn’t say so clearly. However, one hint shows how problematic the relationship with the minister was. Yesterday she said: “At the time I didn’t understand it as the support it was intended to be.”
The rule of law: ruined
As she leaves, Brorhilker ruthlessly exposes the weakness of the judiciary and the rule of law. “Perpetrators with a lot of money and good contacts encounter a weak judiciary and can simply buy their way out of these proceedings,” she told the press yesterday. You can hardly criticize the judiciary in a constitutional state more harshly.
But Brorhilker is by no means the first lawyer to criticize judicial policy. There are now numerous voices pointing out that the judiciary is poorly equipped. Far too few judges and prosecutors and terribly outdated technology – that is the consensus of critics. This is no small problem. You can also destroy the rule of law. Anne Brorhilker sums up her criticism of the judiciary: “You hang the little ones, you let the big ones go.” This is nothing less than a failure of the rule of law. Because his idea is: equal rights for everyone.
Mathias Brodkorb in conversation with Alexander Marguier
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