Sentencing of Düsseldorf art consultant Helge Achenbach for fraud largely confirmed by the Federal Court of Justice

As announced by the Press Office on September 27, 2016, the Federal Court of Justice, by order of April 28, 2016 (Case 4 StR 317/15), largely confirmed the sentencing of art consultant Helge Achenbach by the previous instance on March 16, 2015. Regional Court Essen had sentenced Achenbach for fraud in 18 counts, in four of which in conjunction with embezzlement, as well as for attempted fraud, to a total term of imprisonment of six years. According to the findings of the Regional Court, the defendant operated an art trading company in Düsseldorf. In this capacity, in the period from 2009 to 2013, he maintained business relations, among others, with Berthold Albrecht (Aldi) and Christian Böhringer (Pharma), who wanted to establish an art collection and a vintage car collection. An agreement was reached between the entrepreneurs and Achenbach that the defendant was to search for high-quality art works and classic cars and to negotiate favourable prices. As soon as the entrepreneurs had bindingly agreed to the negotiated price, Achenbach was obligated to acquire the respective work of art or the vintage car, which was then “passed on” to the entrepreneurs at the favourably negotiated purchase price. He was to be paid a commission calculated from the purchase price. Contrary to this agreement, however, the art consultant, made false statements to the entrepreneurs about his purchase prices, invoicing them higher prices and commissions. The Regional Court had assessed the fraud losses to be some EUR 21 million on the basis of the difference between the actual purchase price and the purchase price reimbursed by the entrepreneurs as well as the excessive commissions.

In his appeal, Achenbach had primarily argued that the Regional Court had not correctly determined the fraudulent loss that was to be established, since the works of art actually had had the value of the charged (increased) purchasing prices.

The Fourth Penal Senate in fact suspended the proceedings with regard to two cases for procedural reasons and, in three other cases, limited the criminal prosecution to the allegation of fraud, which is why Achenbach was no longer convicted for embezzlement. The remaining conviction for fraud in 16 counts was confirmed by the Senate, leaving the entire sentence unchanged.

The Federal Court of Justice did not object to the calculation of the loss by the Regional Court in the remaining cases, since the subject of the deception was not the value of the respective purchase items, but the amount of expenses incurred when fulfilling the purchase orders whose reimbursement in full was owed under the framework agreement in connection with the purchase orders.

After 27 months of imprisonment, Achenbach has been a day release prisoner for a month now and works in the Düsseldorf Kaiserswerth deaconry. In terms of civil law, he had already been sentenced in two lawsuits in the first instance to pay EUR 20.6 million in damages last year. Both judgments were appealed, however.