We keep hearing about it: companies and the homes of owners and managing directors are searched on the basis of a suspicion. Is that so easy?
Sometimes yes, because suspicions can be triggered by criminal charges brought by police authorities, anonymous reports or information obtained by other means. Examples include tax CDs, phone taps and reports from whistleblowers. The latter are often former employees.
On the other hand, the authorities are satisfied with the suspicion of an offense. This is the case when a truck driver, not yet known by name, is to be investigated for an offense. This driver may not have kept the minimum distance of 50 m to the vehicle in front or may have committed an overload. Searches and seizures have already been carried out to investigate such regulatory offenses.
But recently, searches have been carried out to determine the driver even if the freight forwarder has already named the driver. However, this is not lawful, ruled the Federal Constitutional Court (2 BvR 1910/05). The measure must not be disproportionate to the strength of the suspicion and the severity of the accusation. This is because a search of the vehicle owner (company) can have a negative impact on the reputation of the company and its owners and managing directors. Furthermore, such a serious infringement of the fundamental right to inviolability of the home as per Article 13 of the German Basic Law may only take place if it is absolutely necessary.
This view is supported by the European Court of Human Rights. It does not consider the search of business premises to be proportionate if the aim is to prosecute a speeding offense. This would violate the European Convention on Human Rights (Art. 8).
Rules for officers
In fact, officials must follow a very specific procedure when conducting searches. The Federal Constitutional Court has defined the formal requirements in many rulings. In principle, searches may only be carried out with a court order. And although searches often take place in the early morningand the addressee of the measure is surprised "in their pajamas" or the company management is still "before the first coffee", it is worth checking the decision for formal and substantive defects.
Have the order presented
In one of the above-mentioned rulings, the Federal Constitutional Court stated: "A search warrant that contains no factual information whatsoever about the content of the accusation and does not mention any grounds for evidence fails to allow an independent examination of the conditions for ordering the search. It also does not allow the accused to properly defend himself against the accusation of the offense and to control the search on his part, as well as to counteract any escalation in its execution within the scope of his legal options from the outset.
Consequently, the person concerned should first obtain a copy of the district court order and analyze its contents.
Searches have a significant negative impact on business and private operations. All parties involved (the accused or witnesses, at least) often make serious mistakes in this regard. In the deceptive hope of achieving a quick and uncomplicated resolution of the matter, they engage in informational discussions with the investigators. Thus, they often provide initial leads, chance finds, or even evidence through their own testimony.
Right to remain silent
Particularly in view of the defectiveness of the search warrant and the resulting prohibition of use under certain circumstances, it is advisable to initially make use of one's right to refuse to give evidence. In addition, a defense lawyer should be consulted during the ongoing search. Only after inspecting the investigation files is it possible to mount a comprehensive and legally sound defense against the accusation.
In principle, the management should define in writing as quickly as possible – independently of the specific circumstances – the procedures, availability by telephone, availability and responsibilities for such state measures in a handout. This reduces the stress in the event of a search. Such measures can also occur if the company is only looking for documents for the criminal case of another company (hec) as part of a major operation.
Tips for search emergencies
- Demand to see the officials' identification and note down the names and the office of the officials. Immediately have a criminal defense attorney appear. The search officials may not prohibit you from speaking with your or an attorney on the phone.
- The written search warrant must be presented to you. Read it carefully and without comment; keep it or make photocopies.
- Often, no or only insufficient instruction is given to the persons present. A witness then has the right to refuse to answer questions if there is a risk that he would incriminate himself (Section 55 of the German Code of Criminal Procedure (StPO)).However, the incorrect instruction often states that the witness may only remain silent if he "would have to incriminate himself". This imprecise wording is intended to put pressure on the person being questioned to make them testify. Such practices must be firmly opposed, especially when it comes to alleged "witnesses" who do not (yet) have the status of a defendant.
- Insist that the search not begin until your trusted attorney and/or tax accountant and/or auditor is present. However, there is no legal right to this.
- Officials often try to obtain information about the matter in seemingly harmless conversation. Do not engage in such informational conversations. Consistently assert your right to refuse to give evidence. If necessary, ask to clarify the issue of your right to refuse with your attorney.
- The searching officers will also try to interrogate employees on the company premises. Although the decision allows entry and search, it does not allow the use of the premises for interrogations. Resist attempts to interrogate you firmly. You will not worsen your position by doing so.
- Both suspects and witnesses have the right to consult a lawyer at every stage of the proceedings. This applies in particular if you are considering making a statement.
- Demand a detailed list of the seized items (not "5 folders with written documents") and refuse to sign a confirmation if the list is not sufficiently specific.
- Often, the persons concerned are asked whether they will hand over the evidence/means of evidence "voluntarily". However, declared voluntariness has no conceivable advantage, but only leads to the fact that the search can no longer be successfully challenged. Therefore: Do not declare any voluntary surrender of the documents, if necessary do not make any declaration about it.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.