We are seeking information regarding Wolfgang Grabher. If you knowthisperson, please notify us at sec995@imfed.gov.
Public Prosecution
Department Stuttgart
To the court -
Stuttgart, 20.07.1999
70190 Stuttgart
162Js 3118/97 /Se
Enclosed: 5 LO Investigation act1 LO means of evidence, 2 videotapes
CourtPlace,
dateApplication
I apply for a remission regarding the following penalty order.The investigations are completed.
Resolution
1. Entry in the register,
Business no. 14 Cs.
2. Corresponding to the application of public prosecution department, following penalty order is remitted.
Penalty order
1. Born on 18.04.1966 in Plochingen, resident of 78628 Rottweil Buhlingen,St -Georgener way 4 as well as 75397 Simmozheim, Wilhelm-Reiff-road.6,unmarried businessman.
Card index not registered Klaus Rüdiger Eglof Defence counsel: Lawyer Thomas Grossmann,
Seelberg street. 15, 70372 Stuttgart
(Authority: EAI, BI.271 f., AZ.: 441/97)
Against this penalty order an objection can be raised; whereby it ispossible that in the main trial both the actual facts mentioned inthe given
circumstances as well as the legal aspect of the judgement can beexamined.
As a result of timely valid objection raised in the main trial, thepunishment, which is already foreseen, can be decreased or increasedand undecided punishments cannot be imposed. They should however beconfined to objection on certain points of complaint.
The objection must be raised within two weeks after the notification/delivery of the penalty order by the court either in writing or as decided as per the record of the branch office. For term keeping it is not sufficient that the objection statement is handed over to the post office within a period of two weeks. The time-period is granted only if the statement is received before expiration of the term as per the court order.The written statement should be in German language.
If you raise any objection, then you are free to justify the same. If the objection however is not confined to certain points of complaint or if it is not justified at all, then the entire content of the penalty order is considered as contested.
A personal notification of the penalty order is not required. The notification takes effect, only when the document is delivered to the residence of the notification addressee either to any adult tenant of the family or to any adult person serving in the family or to thelandlord or rentee living in the same house or if the notification is sent in writing by the post-office under written notification of the receiver. Thus, the time for appeal begins in these cases not merely with the actual delivery of the penalty order to the accused.
If no objection is raised, the penalty order becomes enforceable. The penalty is to be paid along with the computed legal charges within two weeks under indication to the court and the file reference. Please use the attached instruction form.
National cash account"...
Baden-Wilrttembergische Bank,
No; BLZ...
If no payment is done within the prescribed period obligatory financial charges result. In case the penalty amount in the order is not collected, instead of a daily rate, term of imprisonment takes place.
Costs
Law charges
GKG 11,
No.: 6111,6110
Expenses:
1. Postal and telegram charges
2. Notification charges
3. Other expenses
4. (For e.g. police charges)
Total: 160 DM
Execution for notification
- To the post-office
-To the notification official- unto the
Branch office,
2. Born on 02.04. 1970 in Lustenau/Austria, resident of 70617 Stuttgart-Sillenbuch, Hermann-Löns-way 8. 75180 Pforheim-Buchenbronn, Brotzinger street.1 unmarried businessman Wolfgang Grabher
- Austrian citizen -
Defence counsel: Lawyer Manfred Haas,
Seerberg Street. 15, 70372 Stuttgart
(EA I, BI. 271)
were accused,
The accused, Eglof and Grabher in 7 independent legal actions.
A
1-5
In each case are authorized representatives/organs of the juristic person (GmbH). In view of their capacity to initiate bankruptcy/insolvency proceedings - firstly due to their refusal to repay the entire quantum of the proceedings claiming excessive debts affecting theiractual/potential capacity to repay as against the stipulation in the mercantile/contract lawand their inability to repay the balance of the proceedings in time.
2-5. In the account books, the procedure and the legal guidelines, which aremandatory, have been ignored/neglected, in such a way that the overall picture of the capacity to repay has been distorted.
6.As businessman of a private limited is refrained to propose, without indebted ( Zoegern), latest three weeks after initiation of insolvency or bankruptcy,the order of the bankruptcy or legal settlement proceedings.
B
Altogether, it is undertaken by themselves or others, to order non businessmen for the acceptance of goods, to arrange commercial performances or rights through promise, to guarantee special privileges, so that they order others for the closing of same sort of business, who should be guaranteed on their side, after acquisition, the same privileges for a corresponding recruitment of further receivers.
Facts and Circumstances
The accused Eglof was chief executive of ERC Marketing company mbH, (formedon 13.05.1993 and registered in the office of Registrar, Stuttgart HRB 16577, with an authorized capital of 50,000 DM), from 10.04.1999 to 16.04.1998. The accused Grabher was practically functioning as a chief executive from the time of its formation. The former chief executive Yvonne Maciejewski retired with effect from 10.04.1994 from the company.
In the registered document of the company following is mentioned:
In the registered document of the company following is mentioned:"Development and Marketing of computer turnover, marketing programs, data control, data processing, data protection and customer and employeesa dministration, accounting, development of service systems both offshore and onsite as well as marketing consultancy of every type and creating purchase advantages through discounts to the customers."
At first the accused started the snowball system "erc winsys'', which they set up without declaring the provisions for customer protection. Subsequently, the distributed the ERC debit cards to employees under thename "Euro Royal Club"
A
The insolvency application of the accused Grabher dated 15.04.1998, initiated through the bankruptcy proceedings, claiming the inability of the company, was rejected on 15.06.1998 by the district court Stuttgart (6 N 399/98), for want of cost of the proceedings.
1-5
The company was under heavy debts in the middle of 1997. This fact was known to both the accused on the basis of book keeping evaluations and also because the company accumulated losses from 1995 to 1996. After middle of 1997, the company felt threatened due to negative press reports about the snowball system ERC, on account of the company's inability to pay and the employees demanding the repayment of their royalties.
Knowing the legal and contractual obligation the accused issued statement of accounts of GmbH at the end of the financial year, which coincided with the calendar year. The statement of accounts could have been delayed and prepared on 30.06 of the subsequent year. As per the statement of accounts the amounts payable were $$ 242, 264, 267 HGB, six months after the end of respective year.
The position of balances was as follows:
1. The balance of 31.12.1993 delays considerably till 02.04.1997
2. The balance of 31.12.1994 does not
3. The balance of 31.12.1995 does not
4. The balance of 31.12.1996 does not
However, the accused for 1994 produced only one not dated unsigned and draftnot corresponding the regulations of HGB with the help of mechanical accountlists, as well as for 1995 dated on the 22.04.1996.
- 5. In knowledge of the legal obligation of subscribed, current and complete record of the business occurrences the accused does not anymore draw for himself the business occurrences of private ltd. From November 1997, so that it is not for the third party at any point of time to take a look on the property status.
6. The accused always placed consciously for themselves as manager of Fa.ERC Marketing ltd. in the time from 21.12.1997 till 14.04.1998 – the accused Eglof till 06.04.1998- no application on commencement of the legal settlement and bankruptcy proceedings over the property of the company, even if they were obliged, after they were acquainted, on the basis of accounts department's evaluation in November 1994, that the company was indebted for amount than 574,000 DM and was not calculated with the introduction of the new capital with the calculated deadline. From January 1998, the company was no more in position, to fulfill at the moment its payable and seriously demanded liabilities, which was however known by both the accused.
B.In contrary to the registered company target in the commerce register the accused manage from the beginning, a snowball system. At first the accused manage the "profit game erc winsys" where each participant must pay an amount of 920 DM and must recruit two players. As "Profit" the payment of the amount of 39,700 DM is kept in view on the basis of preliminary proceedings especially however on the basis of legal measures of competition unions, this "Game" was seized by the accused.
Therefore the accused decided in knowledge of the punishable ness of progressive customer recruitment (snow ball systems) under the marking of "ERC Cash Card", to run a new system of the progressive customer recruitment without stopping the distribution to non businessmen or to have sufficient concern, to which they are obliged, about which they are acquainted and were also in the position, the accused recruited from the end of 1996 themselves and over further "distribution employees" so called Licensee of "ERC Cash Card" with which the licensee were obliged for the acceptance of 10 cards against a license amount worth 4,991 DM. The task of the employee designated as LN (Licensee) was to recruit new interested parties for the system from his side, who must purchase a license from their side for the same conditions. In the framework of a "ERC career plans" the "licensee" receives after every level provisions from 3% till 25% of the paid yearly salaries of the new licensees. The whole system was controlled centrally by the accused themselves respectively over the employees who are recruited by them. Especially they monopolized the "License charge", paid the promised provisions, produce the settlement for the individual player (Licensee)
The system collapsed latest in November 1997, which was known by both the accused.
The "ERC Cash Card" distributed by them could not be used against their promises for the cashless payment contract partners who would accept thesecards, were only in small circumference. The Fa Tele Cash communicationsService Ltd., which should have arranged the settlement of the card, alreadyterminated their contract relationship with ERC Marketing ltd. On 09.12.1996.
These tasks/deeds are:
In case of the accused Egolf and Grabher respectively:
A.
Number 1: Offence regarding intentional/deliberate violation of legal obligation to keep records through delayed balancing as per # 283 Abs. 6, 14 Abs. 1 Nr. 1 StGB;
Number 2-4: Offence regarding bankruptcy through neglected balancingas per # 283 Abs Abs. 1 Nr. lb, Abs. 6, 14Abs. 1 Nr. 1 StGB;
Number 5: Offence regarding intentional/deliberate bankruptcy through neglected book keeping as per # 283 Abs. 1 Nr. 5, Abs. 6, 14 Abs. 1 Nr. 1 StGB;
Number 6: Offence regarding intentional/deliberate insolvency procrastination as per # 84 Abs. 1 Nr. 2, 64 Abs. 1 GmbHG;
B
Offence regarding collaborative canvassing (Snow ball system) as per # 6eUWG, § 25 Abs. 2 5tGB; Compared overall with # 53 5tGB.
Means of Evidence
I. Admittance of the accused.
The accused have not expressed themselves as at.
II. Witnesses
1. KHK Gollbeck,
LPD Stuttgart II, Criminal branch
1. KHK Gollbeck,
LPD Stuttgart II, Criminal branch
Schockenriedstr. 7, 70565 Stuttgart (EA I, 81.2;Contents EA IV, 81.105; EA V, BI. 296);
2. Martin Harterich,
TeleCash Kommunikations-Service GmbH, Theodor-Heuss-Str. 8, 70174 Stuttgart (EA II, BI. 209);
3. Udo Schüle,
TeleCash Kommunikations-Service GmbH, Theodor-Heuss-Str. 8, 70174 Stuttgart (EA 11,81.210);
4. Criminal Commissioner Sperlich,
Central Crime Service Hannover, Old Airport 18A, 30179 Hannover (EA II, BI. 248);
5. Thomas Langguth,
Wittenberger Str. 15, 01309 Dresden (EA 11,81.298);
6. Volker Kunschener,
Bachstr. 16,71634 Ludwigsburg-Eglosheim (EA I" BI. 375);
7. Marco Verante,
Hühlen way 3D, 89081 Ulm (EA II, BL 322);
8. Sälzle (EA III, BI. 1, 16);
9. Manfred Schmidt,
Schlesienstr. 19, 71069Sindeffingen(EAIV,BI.95);
10. Michael Brisky,
Rohracker Str 320, 70329 Stuttgart (EA 111,BI. 216);
11. Thomas Jahn,
Eichwasen way19, 72124 Pliezhausen (EA III,BI.229);
12. Manfred Riess,
Kurpfalzstrar..e 13, 69190 WaJddorf (EAIII,B!.238);
13. Uwe Renninghoff,
Blumenstr. 20, 75233 Tiefenbronn (EA III, BI. 213/1);
14. JOrgen Diebold,
AOK- Health clinic Stuttgart, 70153 Stuttgart (EA IV,BI.151), Arrears12/97;
15. Gunther Klett,
KKH, Kesselstr. 33, 70327 Stuttgart (EAIV,81.156)
16. Angie Hepp,
AH Management consultancy, Kurze Bünd 24, 97631 Bad Königshofen i. Garbfeld (EA IV, BI.248);
17. Gerichtsvol1zieherin Eyb, Hagbergstr. 19, Stuttgart (EAV, BI.108)
18. Peter Samberger,
Hofener Str. 84, 70372 Stuttgart (Bad Cannstatt) (EAV, BI. 186);
19. Sandra Bludau,
Hesslerstr. 25, 73765 Neuhausen auf den Fildern (EA V, BI. 275);
20. Christina Lumia,
Obertorstr 49, 73728 Esslingen (EA V, BI. 281);
III. Witnesses (Fellow players)
1. Otto Sälzle, Heizungsbaumeister, Krautgarten way 3, 89250 Sanden (EA III, BI. 1, 16);
2. Rodolf Bank, Betriebswirt VWA, Schulhausstr. 37, 79199 Kirchzarten (EA III, BI. 28);
3. Peter Faustmann, Mühlhalenstr. 6/1, 73760 Ostfildern (EA III, BI. 33);
4. Elisabeth Filip,Immelmannstr. 8, 73054 Eislingen (EA III, 81.35);
5. G. Fügemann, Norastr. 10a, 90427 Nünberg (EA III, BI. 39);
6. Bernd Hock, Sponackerstr. 22, 63808 Haibach (EA III, BI. 43);
7. Marek Löffler, Bernahuer Str. 6d, 63762 Groß ostheim(EA III, BI. 46);
8. Dr. Horst Tucholke, Holz market1, 06618 Naumburg (EA III, BI. 58);
9. Petra Brandenburger, At Brünnele 2,71642 Ludwigsburg (EA III, BI. 71);
10. Peter Deville, Dipl.-Kfm.,Schleiermacherstr. 32, 60316 Frankfurt (EA III, BI. 81,105);
11. Hartmut Hammes, finance placement, Herfatz 2, 88239 Wangen (EA III, BI. 96);
12. Eberhard R. Layher, Zugspitzstr. 42, 82327 Tutzing (EA !II, BI. 118);
13. Lothar Lenz, Dipl.-Ing., Arnoldstr. 24,42859 Remscheid (EA III, BI. 124);
14. Margareta Pleser-Spickernagel, Marienstr. 28, 72072 Tübingen (EA '", BI. 135);
15. Walter Ziegler, At Langenbruchbach 32,40668 Meerbusch (EA III, BI. 139);
16. Klaus Engel, Speckjer Str. 34, 27612 Loxstedt-Holte (EA III, BI. 147);
17. Albert Stuhr, Am Ostermoor 14, Bremerhaven (EA III, BI. 163);
18. Silke Straub, Hardtstr. 8, 72477 Schwenningen(EA III, BI. 177);
19. Diana Schoop, Schöne Aussicht (beautiful view) 8,65760 Eschborn (EA III, BI. 187
20. Werner Dreyer, Königsberger Str. 103, 89231 Neu-Ulm (EA III, BI. 208);
21. Kurt Sandig, in Kerksieg 22,32547 Bad Oeynhausen (EA Ill, 81.367);
22. Roland Skommodau, Geschwister-Scholl-Ring 20, Germering (EA V, BI. 37).
IV. Documents
1. Trade register syllabus/extract ERG-Marketing GmbH (EA I, BI. 19,29);
2. Company agreement (EA I, BI. 21; EA IV, BI. 37);
3. List of company members (EA I, BI. 20; EA IV, BI. 128, see also EAIV,BI. 160);
4. Dismissal of Maciejewski as business chief executive 29.11.1994 (BI. 62); (Disposal/disposition/sale/realization of dues/shares) of Grabher 20.03.1998 (EA III, 81. 49)
5. Decision of the company from 16.04.1998 (EA IV, BI. 144; Dismissal of Eglof as a business chief executive, registered since 10.04.1995);
6. (Disposal/disposition/sale/realization of dues/shares) of Grabher from 20.03.1998 (EA IV, BI. 160);
7. Mahnakten (adminishing court) Amtsgericht Stuttgart (EA I, BI. 133 bis203);
8. Insolvency application Grabher from 15.04.1998 (EA IV, BI. 3);
9. Decision of the court Stuttgart, 6 N 399/98, 15.06.1998 (EA IV, BI. 77);
10. ERG-Datafox GmbH:
a) Register book (EA I, 81.66);
b) Company Agreement (EA I, BI. 68);
11. ERG-Tourist GmbH:
a) Register book (EA I, 81.30);
b) Company Agreement (EA I, 81.53);
c) List of Company members (EA !, 81.65);
. ERG-Club GmbH: Company Agreement (EA I, BI. 40);
13. ERC-Trade GmbH (EA I, 81.47);
14. ERC-Marketing GmbH (EA I, 81.51: Change of Firm);
15. Cancellation of Tele Cash from 09.12.1996 (EA II, BI. 213; EA IV,81.180; Further: EA V, BI. 227, 232);
16. Cancellation of Sixt from 17.04.1997 (EA II, BI. 243);
17. Agreement documents (EA III, BI. 33);
18. Counselor hand book ERC (EA IV, 81.25 as well as EA IV, 81.84Written draft EA III, 81.273)
19. ERC Career plan (EA 111,81. 318; EA IV, BI. 71);
20. Booklets ERC "Spectrum" from January 1996(EA II, BI. 61);
21. Application ERG (EA II, 81.63);
22. ERG Network plan (EA II, 81.69);
23. Press reports (EA II, 81.86, 88: Gerlach Report 48/95, 81.90: Finanztest Januar 1996, 81.275: Neue Revue; EA IV, 81. 194: Spitze 1/96: "ERG culpable Snowballsystem"- by Fax to Grabher 23.11.1995);
24. Names List (EA II, 81.104 bis 208);
25. Grabher wrote regarding participation Kaps on 05.06.1998 (EA III, 81.224).
26. Visiting cards ERG Marketing GmbH: W. Grabher -Company management (EA III, 81.228/18)
27. Organizational chart ERG Company: ERG Company management &Strategy: W. Grabher (EA 111,81. 228/19;EAIV, 81.196)
28. On 19.06.1998 ERG Marketing GmbH LL. Grabher/Egolf wrote to theCustomers(EA V, 81.49);
29. Credit or Loan Agreement Eurokon lKaps-ERG, and BMO participatedsatisfactorily (EA V, BI. 250)
30. RA Gerlach, Mainz, for evaluation of Balances (for Kaps) (EA V, 81.259);
31. WP-Company wrote on 23.03.1998 to the ERG (EA V, BI. 252)- V. Original means of evidence
1. Advisory opinion regarding § 6c UWG from the lawyer Haas on12.05.1997 (EA I, 81.272);
2. Personal ERG/Lawyer of § 6c UWG (EA I, 81.301 upto 324);
3 Personal Lawyer from 13.01.1997 to 12.02.1997(EA I, 81.311, 317);
4. License Agreement with corrections (EA I, 81.323);
5. ERG Career plan (EA 111, 81.318);
6. ERG Advertising map and blank agreements (EA I, 81.325; EA II,61.256);
7. Booklets ERC "Spectrum" January 1996 (EA II, 61. 61);
8. Balances (EA IV: 81.90, Plan 1996; 81.233: Draft 1996; 81. 93, 31.12.1993; 81.94, explanation for 1993 from02.04.1997; 81.92, 31.12.1994; 81.91, 31.12.1995 from 22.04.1996; EA V, 81. 2: Evaluation01-11/97, missing 574TDM);
9. Documents to Grabher (EA IV, 61.165 - 232)
VI.Inspection Documents
1. Advertising Video;
2. TV Report.
Against the accused Eglof an entire term of imprisonment of 8 months was decided. Against the accused Grabher an entire term of imprisonment of 10 months was decided.
Following punishments were imposed on both the above mentioned accused.
A:
Number 1: 90 daily rate
Number 2,3 respectively 100 daily rate
Number 4 90 daily rate
Number 5 90 daily rate
Number 6 80 daily rate
B: 6 months imprisonment, whereby for every daily rate 50 DM were fixed.
Execution of the punishment was put on probation for both the accused.
The accused bear the cost of the proceedings and their required own expenditure.
Probation Decision
1. Probation period amounts to 3 years for both the accused
2. The accused has to report each domicile change to the district court, Stuttgart in writing immediately and without being asked about the file reference
3. Eglof is supposed to pay 5000 DM to the treasury
4. Grabher is supposed to pay 5000 DM to the treasury
Instruction as per # 268 A paragraph 3 StPO
The court has put the execution of the punishment on probation, because it is expected that they will serve the condemnation/conviction for the warning and in future they would never commit any criminal offences.
They must be rest assured that that the court recalls/cancels the probation (§ 56 f Paragraph1 StGB) and they must serve the punishment/sentence if they:
1. commit a crime in the probation period (or before the legal effect/validity of the punishment) and thus show that the expectation, which was the basis for the punishment, was not sufficient enough.
2. offend against instructions grossly or persistently or escape from the
supervision persistently and conduct of the probation officer and thus cause to some anxiety that they would commit criminal offences again or else,
3. offend against requirements grossly or persistently (especially if they cannot keep up with the payment i.e. sum culpably).The mentioned requirements can be replaced later. Even the probation Time can be extended if necessary. The probation period begins with the legal effect/validity of the punishment. If your behavior does not give a reason for the revocation/cancellation of the probation, the punishment is issued after expiration of the probation period (§ 56g StGB).
Business number:
14 Cs 162 Js 3118/97
StA Stgt: 162 Js 3118/97
Court Stuttgart On behalf of the people Judgment in the criminal case
1. Klaus Rudiger Eglof Born on 18.04.1966 in Plochingen Resident of St.-Georg Way 4, 78628 Rottweil--Bühlingen, Unmarried businessman, nationality: German,
Defence Lawyer: RA Thomas Grossmann, 70372 Stuttgart
2. Wolfgang Grabher
Born on 02.04.1970 in Lustenau/Austria, Resident of Eduard-Steinle-Str. 14, 70619 Stuttgart, Unmarried businessman, nationality: Austrian
Defence Lawyer: RA Manfred Haas, 70372 Stuttgart
The court Stuttgart - criminal judge - adjudged in the meeting of 24.08.2001 and recognized:
no. 1 Lawyer Haas
no. 2 - as a defence counsel, JS'in Müller as authenticating official of the branch office
The accused Wolfgang Grabher was condemned to a punishment by the court on
30.08.1999. He was charged an entire term of imprisonment for a period of 10 months.
The execution of the punishment is put on a probation period.
The accused bear the costs of the proceedings:
Applied rules: §§ 283 ! Nr. 5, 7 b, vr, 283 b 1Nr. 3 b, 14 I Nr. 1 StGB, 84 I Nr. 2, 64 I GmbHG, 53, 56 8tGB
The accused Klaus Eglof was condemned to a punishment by the court on 30.08.1999. He was charged an entire term of imprisonment for a period of 8 months.
The execution of the punishment is put on a probation period.
The accused bear the costs of the proceedings:
Applied rules: §§ 283 ! Nr. 5,7 b, vr, 283 b 1Nr. 3 b, 14 I Nr. 1
StGB, 84 I Nr. 2, 64 I GmbHG, 53, 56 8tGB.
Reasons: (Shortened from § 267 Abs. IVStPO)
Decided/fixed facts in the penalty of district court Stuttgart of 30.08.1999 under number A, as well as applied rules, are decided on account of an effective restriction of the objection on the legal consequences.
Insofar the penalty is referred.
Leading points regarding the assessment of penalty:
In favor of the accused it should be taken into consideration that both had
confessed. In favor of the accused was convicted by the district court Böblingen dated 03.03.1994. Under consideration of the circumstances mentioned in § 47 StGB the imposition of the following imprisonments are mentioned for both the accused.
Number1 - 3 months
Number 2, 3 - in each case 4 months
Number 4, 5, and 6 - in each case 3 months
Considering all leading aspects regarding the assessment of penalty and partial reference the imposed imprisonments were formed of 8 months for the accused Eglof and 10 months for the accused Grabher. The imprisonments could be suspended in each case on the probation, since it is expected that they would not commit any further offences.
The cost decision follows from § 465 StPO.
Executed: .Stuttgart, 11.09.2001
Authenticating official of the branch office of the court
14 BWL 65/01
14 Cs 162 Js 3118/97 (Court Stuttgart)
Court Stuttgart
Probation decision dated 24.08.2001 In the criminal case of 02.04.1970 in Lustenau/Austria, born in 70619 Stuttgart, Eduard-Steinle-Str. 14, Austrian Businessman Wolfgang Grabher.
The probation period amounts to 2 years.
The accused receives following instructions:
On Aktivspielplatz Hallschlag Pädagogisch betreuter Spielptatz Rostockerstr. 9, 70376 Stuttgart
LBBW, BLZ: 60050101, Account-No.: 2418865
A sum of 10.000,00 DM is to be paid upto 24.12.2001
The accused is instructed to communicate immediately in writing the respective domicile to the district court Stuttgart.
Public Prosecution
Department Stuttgart
To the court -
Stuttgart, 20.07.1999
70190 Stuttgart
162Js 3118/97 /Se
Enclosed: 5 LO Investigation act1 LO means of evidence, 2 videotapes
CourtPlace,
dateApplication
I apply for a remission regarding the following penalty order.The investigations are completed.
Resolution
1. Entry in the register,
Business no. 14 Cs.
2. Corresponding to the application of public prosecution department, following penalty order is remitted.
Penalty order
1. Born on 18.04.1966 in Plochingen, resident of 78628 Rottweil Buhlingen,St -Georgener way 4 as well as 75397 Simmozheim, Wilhelm-Reiff-road.6,unmarried businessman.
Card index not registered Klaus Rüdiger Eglof Defence counsel: Lawyer Thomas Grossmann,
Seelberg street. 15, 70372 Stuttgart
(Authority: EAI, BI.271 f., AZ.: 441/97)
Against this penalty order an objection can be raised; whereby it ispossible that in the main trial both the actual facts mentioned inthe given
circumstances as well as the legal aspect of the judgement can beexamined.
As a result of timely valid objection raised in the main trial, thepunishment, which is already foreseen, can be decreased or increasedand undecided punishments cannot be imposed. They should however beconfined to objection on certain points of complaint.
The objection must be raised within two weeks after the notification/delivery of the penalty order by the court either in writing or as decided as per the record of the branch office. For term keeping it is not sufficient that the objection statement is handed over to the post office within a period of two weeks. The time-period is granted only if the statement is received before expiration of the term as per the court order.The written statement should be in German language.
If you raise any objection, then you are free to justify the same. If the objection however is not confined to certain points of complaint or if it is not justified at all, then the entire content of the penalty order is considered as contested.
A personal notification of the penalty order is not required. The notification takes effect, only when the document is delivered to the residence of the notification addressee either to any adult tenant of the family or to any adult person serving in the family or to thelandlord or rentee living in the same house or if the notification is sent in writing by the post-office under written notification of the receiver. Thus, the time for appeal begins in these cases not merely with the actual delivery of the penalty order to the accused.
If no objection is raised, the penalty order becomes enforceable. The penalty is to be paid along with the computed legal charges within two weeks under indication to the court and the file reference. Please use the attached instruction form.
National cash account"...
Baden-Wilrttembergische Bank,
No; BLZ...
If no payment is done within the prescribed period obligatory financial charges result. In case the penalty amount in the order is not collected, instead of a daily rate, term of imprisonment takes place.
Costs
Law charges
GKG 11,
No.: 6111,6110
Expenses:
1. Postal and telegram charges
2. Notification charges
3. Other expenses
4. (For e.g. police charges)
Total: 160 DM
Execution for notification
- To the post-office
-To the notification official- unto the
Branch office,
2. Born on 02.04. 1970 in Lustenau/Austria, resident of 70617 Stuttgart-Sillenbuch, Hermann-Löns-way 8. 75180 Pforheim-Buchenbronn, Brotzinger street.1 unmarried businessman Wolfgang Grabher
- Austrian citizen -
Defence counsel: Lawyer Manfred Haas,
Seerberg Street. 15, 70372 Stuttgart
(EA I, BI. 271)
were accused,
The accused, Eglof and Grabher in 7 independent legal actions.
A
1-5
In each case are authorized representatives/organs of the juristic person (GmbH). In view of their capacity to initiate bankruptcy/insolvency proceedings - firstly due to their refusal to repay the entire quantum of the proceedings claiming excessive debts affecting theiractual/potential capacity to repay as against the stipulation in the mercantile/contract lawand their inability to repay the balance of the proceedings in time.
2-5. In the account books, the procedure and the legal guidelines, which aremandatory, have been ignored/neglected, in such a way that the overall picture of the capacity to repay has been distorted.
6.As businessman of a private limited is refrained to propose, without indebted ( Zoegern), latest three weeks after initiation of insolvency or bankruptcy,the order of the bankruptcy or legal settlement proceedings.
B
Altogether, it is undertaken by themselves or others, to order non businessmen for the acceptance of goods, to arrange commercial performances or rights through promise, to guarantee special privileges, so that they order others for the closing of same sort of business, who should be guaranteed on their side, after acquisition, the same privileges for a corresponding recruitment of further receivers.
Facts and Circumstances
The accused Eglof was chief executive of ERC Marketing company mbH, (formedon 13.05.1993 and registered in the office of Registrar, Stuttgart HRB 16577, with an authorized capital of 50,000 DM), from 10.04.1999 to 16.04.1998. The accused Grabher was practically functioning as a chief executive from the time of its formation. The former chief executive Yvonne Maciejewski retired with effect from 10.04.1994 from the company.
In the registered document of the company following is mentioned:
In the registered document of the company following is mentioned:"Development and Marketing of computer turnover, marketing programs, data control, data processing, data protection and customer and employeesa dministration, accounting, development of service systems both offshore and onsite as well as marketing consultancy of every type and creating purchase advantages through discounts to the customers."
At first the accused started the snowball system "erc winsys'', which they set up without declaring the provisions for customer protection. Subsequently, the distributed the ERC debit cards to employees under thename "Euro Royal Club"
A
The insolvency application of the accused Grabher dated 15.04.1998, initiated through the bankruptcy proceedings, claiming the inability of the company, was rejected on 15.06.1998 by the district court Stuttgart (6 N 399/98), for want of cost of the proceedings.
1-5
The company was under heavy debts in the middle of 1997. This fact was known to both the accused on the basis of book keeping evaluations and also because the company accumulated losses from 1995 to 1996. After middle of 1997, the company felt threatened due to negative press reports about the snowball system ERC, on account of the company's inability to pay and the employees demanding the repayment of their royalties.
Knowing the legal and contractual obligation the accused issued statement of accounts of GmbH at the end of the financial year, which coincided with the calendar year. The statement of accounts could have been delayed and prepared on 30.06 of the subsequent year. As per the statement of accounts the amounts payable were $$ 242, 264, 267 HGB, six months after the end of respective year.
The position of balances was as follows:
1. The balance of 31.12.1993 delays considerably till 02.04.1997
2. The balance of 31.12.1994 does not
3. The balance of 31.12.1995 does not
4. The balance of 31.12.1996 does not
However, the accused for 1994 produced only one not dated unsigned and draftnot corresponding the regulations of HGB with the help of mechanical accountlists, as well as for 1995 dated on the 22.04.1996.
- 5. In knowledge of the legal obligation of subscribed, current and complete record of the business occurrences the accused does not anymore draw for himself the business occurrences of private ltd. From November 1997, so that it is not for the third party at any point of time to take a look on the property status.
6. The accused always placed consciously for themselves as manager of Fa.ERC Marketing ltd. in the time from 21.12.1997 till 14.04.1998 – the accused Eglof till 06.04.1998- no application on commencement of the legal settlement and bankruptcy proceedings over the property of the company, even if they were obliged, after they were acquainted, on the basis of accounts department's evaluation in November 1994, that the company was indebted for amount than 574,000 DM and was not calculated with the introduction of the new capital with the calculated deadline. From January 1998, the company was no more in position, to fulfill at the moment its payable and seriously demanded liabilities, which was however known by both the accused.
B.In contrary to the registered company target in the commerce register the accused manage from the beginning, a snowball system. At first the accused manage the "profit game erc winsys" where each participant must pay an amount of 920 DM and must recruit two players. As "Profit" the payment of the amount of 39,700 DM is kept in view on the basis of preliminary proceedings especially however on the basis of legal measures of competition unions, this "Game" was seized by the accused.
Therefore the accused decided in knowledge of the punishable ness of progressive customer recruitment (snow ball systems) under the marking of "ERC Cash Card", to run a new system of the progressive customer recruitment without stopping the distribution to non businessmen or to have sufficient concern, to which they are obliged, about which they are acquainted and were also in the position, the accused recruited from the end of 1996 themselves and over further "distribution employees" so called Licensee of "ERC Cash Card" with which the licensee were obliged for the acceptance of 10 cards against a license amount worth 4,991 DM. The task of the employee designated as LN (Licensee) was to recruit new interested parties for the system from his side, who must purchase a license from their side for the same conditions. In the framework of a "ERC career plans" the "licensee" receives after every level provisions from 3% till 25% of the paid yearly salaries of the new licensees. The whole system was controlled centrally by the accused themselves respectively over the employees who are recruited by them. Especially they monopolized the "License charge", paid the promised provisions, produce the settlement for the individual player (Licensee)
The system collapsed latest in November 1997, which was known by both the accused.
The "ERC Cash Card" distributed by them could not be used against their promises for the cashless payment contract partners who would accept thesecards, were only in small circumference. The Fa Tele Cash communicationsService Ltd., which should have arranged the settlement of the card, alreadyterminated their contract relationship with ERC Marketing ltd. On 09.12.1996.
These tasks/deeds are:
In case of the accused Egolf and Grabher respectively:
A.
Number 1: Offence regarding intentional/deliberate violation of legal obligation to keep records through delayed balancing as per # 283 Abs. 6, 14 Abs. 1 Nr. 1 StGB;
Number 2-4: Offence regarding bankruptcy through neglected balancingas per # 283 Abs Abs. 1 Nr. lb, Abs. 6, 14Abs. 1 Nr. 1 StGB;
Number 5: Offence regarding intentional/deliberate bankruptcy through neglected book keeping as per # 283 Abs. 1 Nr. 5, Abs. 6, 14 Abs. 1 Nr. 1 StGB;
Number 6: Offence regarding intentional/deliberate insolvency procrastination as per # 84 Abs. 1 Nr. 2, 64 Abs. 1 GmbHG;
B
Offence regarding collaborative canvassing (Snow ball system) as per # 6eUWG, § 25 Abs. 2 5tGB; Compared overall with # 53 5tGB.
Means of Evidence
I. Admittance of the accused.
The accused have not expressed themselves as at.
II. Witnesses
1. KHK Gollbeck,
LPD Stuttgart II, Criminal branch
1. KHK Gollbeck,
LPD Stuttgart II, Criminal branch
Schockenriedstr. 7, 70565 Stuttgart (EA I, 81.2;Contents EA IV, 81.105; EA V, BI. 296);
2. Martin Harterich,
TeleCash Kommunikations-Service GmbH, Theodor-Heuss-Str. 8, 70174 Stuttgart (EA II, BI. 209);
3. Udo Schüle,
TeleCash Kommunikations-Service GmbH, Theodor-Heuss-Str. 8, 70174 Stuttgart (EA 11,81.210);
4. Criminal Commissioner Sperlich,
Central Crime Service Hannover, Old Airport 18A, 30179 Hannover (EA II, BI. 248);
5. Thomas Langguth,
Wittenberger Str. 15, 01309 Dresden (EA 11,81.298);
6. Volker Kunschener,
Bachstr. 16,71634 Ludwigsburg-Eglosheim (EA I" BI. 375);
7. Marco Verante,
Hühlen way 3D, 89081 Ulm (EA II, BL 322);
8. Sälzle (EA III, BI. 1, 16);
9. Manfred Schmidt,
Schlesienstr. 19, 71069Sindeffingen(EAIV,BI.95);
10. Michael Brisky,
Rohracker Str 320, 70329 Stuttgart (EA 111,BI. 216);
11. Thomas Jahn,
Eichwasen way19, 72124 Pliezhausen (EA III,BI.229);
12. Manfred Riess,
Kurpfalzstrar..e 13, 69190 WaJddorf (EAIII,B!.238);
13. Uwe Renninghoff,
Blumenstr. 20, 75233 Tiefenbronn (EA III, BI. 213/1);
14. JOrgen Diebold,
AOK- Health clinic Stuttgart, 70153 Stuttgart (EA IV,BI.151), Arrears12/97;
15. Gunther Klett,
KKH, Kesselstr. 33, 70327 Stuttgart (EAIV,81.156)
16. Angie Hepp,
AH Management consultancy, Kurze Bünd 24, 97631 Bad Königshofen i. Garbfeld (EA IV, BI.248);
17. Gerichtsvol1zieherin Eyb, Hagbergstr. 19, Stuttgart (EAV, BI.108)
18. Peter Samberger,
Hofener Str. 84, 70372 Stuttgart (Bad Cannstatt) (EAV, BI. 186);
19. Sandra Bludau,
Hesslerstr. 25, 73765 Neuhausen auf den Fildern (EA V, BI. 275);
20. Christina Lumia,
Obertorstr 49, 73728 Esslingen (EA V, BI. 281);
III. Witnesses (Fellow players)
1. Otto Sälzle, Heizungsbaumeister, Krautgarten way 3, 89250 Sanden (EA III, BI. 1, 16);
2. Rodolf Bank, Betriebswirt VWA, Schulhausstr. 37, 79199 Kirchzarten (EA III, BI. 28);
3. Peter Faustmann, Mühlhalenstr. 6/1, 73760 Ostfildern (EA III, BI. 33);
4. Elisabeth Filip,Immelmannstr. 8, 73054 Eislingen (EA III, 81.35);
5. G. Fügemann, Norastr. 10a, 90427 Nünberg (EA III, BI. 39);
6. Bernd Hock, Sponackerstr. 22, 63808 Haibach (EA III, BI. 43);
7. Marek Löffler, Bernahuer Str. 6d, 63762 Groß ostheim(EA III, BI. 46);
8. Dr. Horst Tucholke, Holz market1, 06618 Naumburg (EA III, BI. 58);
9. Petra Brandenburger, At Brünnele 2,71642 Ludwigsburg (EA III, BI. 71);
10. Peter Deville, Dipl.-Kfm.,Schleiermacherstr. 32, 60316 Frankfurt (EA III, BI. 81,105);
11. Hartmut Hammes, finance placement, Herfatz 2, 88239 Wangen (EA III, BI. 96);
12. Eberhard R. Layher, Zugspitzstr. 42, 82327 Tutzing (EA !II, BI. 118);
13. Lothar Lenz, Dipl.-Ing., Arnoldstr. 24,42859 Remscheid (EA III, BI. 124);
14. Margareta Pleser-Spickernagel, Marienstr. 28, 72072 Tübingen (EA '", BI. 135);
15. Walter Ziegler, At Langenbruchbach 32,40668 Meerbusch (EA III, BI. 139);
16. Klaus Engel, Speckjer Str. 34, 27612 Loxstedt-Holte (EA III, BI. 147);
17. Albert Stuhr, Am Ostermoor 14, Bremerhaven (EA III, BI. 163);
18. Silke Straub, Hardtstr. 8, 72477 Schwenningen(EA III, BI. 177);
19. Diana Schoop, Schöne Aussicht (beautiful view) 8,65760 Eschborn (EA III, BI. 187
20. Werner Dreyer, Königsberger Str. 103, 89231 Neu-Ulm (EA III, BI. 208);
21. Kurt Sandig, in Kerksieg 22,32547 Bad Oeynhausen (EA Ill, 81.367);
22. Roland Skommodau, Geschwister-Scholl-Ring 20, Germering (EA V, BI. 37).
IV. Documents
1. Trade register syllabus/extract ERG-Marketing GmbH (EA I, BI. 19,29);
2. Company agreement (EA I, BI. 21; EA IV, BI. 37);
3. List of company members (EA I, BI. 20; EA IV, BI. 128, see also EAIV,BI. 160);
4. Dismissal of Maciejewski as business chief executive 29.11.1994 (BI. 62); (Disposal/disposition/sale/realization of dues/shares) of Grabher 20.03.1998 (EA III, 81. 49)
5. Decision of the company from 16.04.1998 (EA IV, BI. 144; Dismissal of Eglof as a business chief executive, registered since 10.04.1995);
6. (Disposal/disposition/sale/realization of dues/shares) of Grabher from 20.03.1998 (EA IV, BI. 160);
7. Mahnakten (adminishing court) Amtsgericht Stuttgart (EA I, BI. 133 bis203);
8. Insolvency application Grabher from 15.04.1998 (EA IV, BI. 3);
9. Decision of the court Stuttgart, 6 N 399/98, 15.06.1998 (EA IV, BI. 77);
10. ERG-Datafox GmbH:
a) Register book (EA I, 81.66);
b) Company Agreement (EA I, BI. 68);
11. ERG-Tourist GmbH:
a) Register book (EA I, 81.30);
b) Company Agreement (EA I, 81.53);
c) List of Company members (EA !, 81.65);
. ERG-Club GmbH: Company Agreement (EA I, BI. 40);
13. ERC-Trade GmbH (EA I, 81.47);
14. ERC-Marketing GmbH (EA I, 81.51: Change of Firm);
15. Cancellation of Tele Cash from 09.12.1996 (EA II, BI. 213; EA IV,81.180; Further: EA V, BI. 227, 232);
16. Cancellation of Sixt from 17.04.1997 (EA II, BI. 243);
17. Agreement documents (EA III, BI. 33);
18. Counselor hand book ERC (EA IV, 81.25 as well as EA IV, 81.84Written draft EA III, 81.273)
19. ERC Career plan (EA 111,81. 318; EA IV, BI. 71);
20. Booklets ERC "Spectrum" from January 1996(EA II, BI. 61);
21. Application ERG (EA II, 81.63);
22. ERG Network plan (EA II, 81.69);
23. Press reports (EA II, 81.86, 88: Gerlach Report 48/95, 81.90: Finanztest Januar 1996, 81.275: Neue Revue; EA IV, 81. 194: Spitze 1/96: "ERG culpable Snowballsystem"- by Fax to Grabher 23.11.1995);
24. Names List (EA II, 81.104 bis 208);
25. Grabher wrote regarding participation Kaps on 05.06.1998 (EA III, 81.224).
26. Visiting cards ERG Marketing GmbH: W. Grabher -Company management (EA III, 81.228/18)
27. Organizational chart ERG Company: ERG Company management &Strategy: W. Grabher (EA 111,81. 228/19;EAIV, 81.196)
28. On 19.06.1998 ERG Marketing GmbH LL. Grabher/Egolf wrote to theCustomers(EA V, 81.49);
29. Credit or Loan Agreement Eurokon lKaps-ERG, and BMO participatedsatisfactorily (EA V, BI. 250)
30. RA Gerlach, Mainz, for evaluation of Balances (for Kaps) (EA V, 81.259);
31. WP-Company wrote on 23.03.1998 to the ERG (EA V, BI. 252)- V. Original means of evidence
1. Advisory opinion regarding § 6c UWG from the lawyer Haas on12.05.1997 (EA I, 81.272);
2. Personal ERG/Lawyer of § 6c UWG (EA I, 81.301 upto 324);
3 Personal Lawyer from 13.01.1997 to 12.02.1997(EA I, 81.311, 317);
4. License Agreement with corrections (EA I, 81.323);
5. ERG Career plan (EA 111, 81.318);
6. ERG Advertising map and blank agreements (EA I, 81.325; EA II,61.256);
7. Booklets ERC "Spectrum" January 1996 (EA II, 61. 61);
8. Balances (EA IV: 81.90, Plan 1996; 81.233: Draft 1996; 81. 93, 31.12.1993; 81.94, explanation for 1993 from02.04.1997; 81.92, 31.12.1994; 81.91, 31.12.1995 from 22.04.1996; EA V, 81. 2: Evaluation01-11/97, missing 574TDM);
9. Documents to Grabher (EA IV, 61.165 - 232)
VI.Inspection Documents
1. Advertising Video;
2. TV Report.
Against the accused Eglof an entire term of imprisonment of 8 months was decided. Against the accused Grabher an entire term of imprisonment of 10 months was decided.
Following punishments were imposed on both the above mentioned accused.
A:
Number 1: 90 daily rate
Number 2,3 respectively 100 daily rate
Number 4 90 daily rate
Number 5 90 daily rate
Number 6 80 daily rate
B: 6 months imprisonment, whereby for every daily rate 50 DM were fixed.
Execution of the punishment was put on probation for both the accused.
The accused bear the cost of the proceedings and their required own expenditure.
Probation Decision
1. Probation period amounts to 3 years for both the accused
2. The accused has to report each domicile change to the district court, Stuttgart in writing immediately and without being asked about the file reference
3. Eglof is supposed to pay 5000 DM to the treasury
4. Grabher is supposed to pay 5000 DM to the treasury
Instruction as per # 268 A paragraph 3 StPO
The court has put the execution of the punishment on probation, because it is expected that they will serve the condemnation/conviction for the warning and in future they would never commit any criminal offences.
They must be rest assured that that the court recalls/cancels the probation (§ 56 f Paragraph1 StGB) and they must serve the punishment/sentence if they:
1. commit a crime in the probation period (or before the legal effect/validity of the punishment) and thus show that the expectation, which was the basis for the punishment, was not sufficient enough.
2. offend against instructions grossly or persistently or escape from the
supervision persistently and conduct of the probation officer and thus cause to some anxiety that they would commit criminal offences again or else,
3. offend against requirements grossly or persistently (especially if they cannot keep up with the payment i.e. sum culpably).The mentioned requirements can be replaced later. Even the probation Time can be extended if necessary. The probation period begins with the legal effect/validity of the punishment. If your behavior does not give a reason for the revocation/cancellation of the probation, the punishment is issued after expiration of the probation period (§ 56g StGB).
Business number:
14 Cs 162 Js 3118/97
StA Stgt: 162 Js 3118/97
Court Stuttgart On behalf of the people Judgment in the criminal case
1. Klaus Rudiger Eglof Born on 18.04.1966 in Plochingen Resident of St.-Georg Way 4, 78628 Rottweil--Bühlingen, Unmarried businessman, nationality: German,
Defence Lawyer: RA Thomas Grossmann, 70372 Stuttgart
2. Wolfgang Grabher
Born on 02.04.1970 in Lustenau/Austria, Resident of Eduard-Steinle-Str. 14, 70619 Stuttgart, Unmarried businessman, nationality: Austrian
Defence Lawyer: RA Manfred Haas, 70372 Stuttgart
The court Stuttgart - criminal judge - adjudged in the meeting of 24.08.2001 and recognized:
no. 1 Lawyer Haas
no. 2 - as a defence counsel, JS'in Müller as authenticating official of the branch office
The accused Wolfgang Grabher was condemned to a punishment by the court on
30.08.1999. He was charged an entire term of imprisonment for a period of 10 months.
The execution of the punishment is put on a probation period.
The accused bear the costs of the proceedings:
Applied rules: §§ 283 ! Nr. 5, 7 b, vr, 283 b 1Nr. 3 b, 14 I Nr. 1 StGB, 84 I Nr. 2, 64 I GmbHG, 53, 56 8tGB
The accused Klaus Eglof was condemned to a punishment by the court on 30.08.1999. He was charged an entire term of imprisonment for a period of 8 months.
The execution of the punishment is put on a probation period.
The accused bear the costs of the proceedings:
Applied rules: §§ 283 ! Nr. 5,7 b, vr, 283 b 1Nr. 3 b, 14 I Nr. 1
StGB, 84 I Nr. 2, 64 I GmbHG, 53, 56 8tGB.
Reasons: (Shortened from § 267 Abs. IVStPO)
Decided/fixed facts in the penalty of district court Stuttgart of 30.08.1999 under number A, as well as applied rules, are decided on account of an effective restriction of the objection on the legal consequences.
Insofar the penalty is referred.
Leading points regarding the assessment of penalty:
In favor of the accused it should be taken into consideration that both had
confessed. In favor of the accused was convicted by the district court Böblingen dated 03.03.1994. Under consideration of the circumstances mentioned in § 47 StGB the imposition of the following imprisonments are mentioned for both the accused.
Number1 - 3 months
Number 2, 3 - in each case 4 months
Number 4, 5, and 6 - in each case 3 months
Considering all leading aspects regarding the assessment of penalty and partial reference the imposed imprisonments were formed of 8 months for the accused Eglof and 10 months for the accused Grabher. The imprisonments could be suspended in each case on the probation, since it is expected that they would not commit any further offences.
The cost decision follows from § 465 StPO.
Executed: .Stuttgart, 11.09.2001
Authenticating official of the branch office of the court
14 BWL 65/01
14 Cs 162 Js 3118/97 (Court Stuttgart)
Court Stuttgart
Probation decision dated 24.08.2001 In the criminal case of 02.04.1970 in Lustenau/Austria, born in 70619 Stuttgart, Eduard-Steinle-Str. 14, Austrian Businessman Wolfgang Grabher.
The probation period amounts to 2 years.
The accused receives following instructions:
On Aktivspielplatz Hallschlag Pädagogisch betreuter Spielptatz Rostockerstr. 9, 70376 Stuttgart
LBBW, BLZ: 60050101, Account-No.: 2418865
A sum of 10.000,00 DM is to be paid upto 24.12.2001
The accused is instructed to communicate immediately in writing the respective domicile to the district court Stuttgart.
