The trial of Uli Hoeneß has caused quite a stir. ZEIT ONLINE recently wrote that the sentence was relatively high and showed the graphic opposite. Compared to what the public prosecutor's office had demanded, the judge's decision is still relatively lenient, but the sentence is still longer than the average sentence for rape, robbery or extortion.
The reaction that the trial has provoked in society is also interesting: Many cheered the verdict, presumably less out of ethical concerns than out of resentment. "Someone has something we don't have, and now he's going to pay for doing something we would never do!" So many people agreed with the high sentence, but at the same time the question arose: why is a manslayer given a shorter sentence than someone who has "only" evaded taxes? Where is the proportionality here?
When I was studying law, there was a moment when I was very perplexed. Until the penny dropped and I understood how the German criminal laws actually work.
It was about the hit-and-run: If I scrape another car and its driver is not nearby, is it enough if I stick my business card behind the windshield wiper? Why do I have to be there until the police arrive? Can't I just remember the license plate number and find out who the driver is so that I can compensate him for his damage?
What is actually the reason, I asked myself, why hit-and-run is a punishable offense? Or in legalese: what is the protected legal interest here? Spontaneously, one would certainly think: the person who has been harmed must be protected. If you think that way, it's okay to stick a business card under the windshield wiper.
But far from it! The protected legal interest here is not the injured party who gets a new car door, but the state's claim for punishment! The state doesn't care whether the other driver has suffered any damage, it is more concerned with being able to enforce its criminal claim. Therefore, in the eyes of the state, it is an offense if I drive away. Not because the injured party doesn't get his money, but because I make it more difficult or impossible for the state to punish me!
And so we are still living in the old Prussia, in the thinking of authority, and we can see that here too in the Hoeneß case. He didn't take something from the citizen, but from the state, and the state doesn't want to put up with that!
A tax professor once said: "Tax evasion should not be punishable as long as tax waste is not punishable." And indeed, taxes are wasted to a large extent, but nobody at the tax authorities cares. So it's not about the money itself!
Hoeneß (and others) are not being punished because they withheld money from the state, but because he disobeyed the state.
In Switzerland, for example, things are different. There you ask yourself: have you harmed the citizens, the common good? And the punishment is assessed accordingly. In Germany, we still have a bit of work to do. There are hardly any servants of the people, there are only servants of the state, and we are all supposed to be servants of the state, until evil tongues claim that Germany has a personal ID card instead of an ID card because we are all still personnel and belong to the "king".
