Internal investigations in companies

In the past, companies often only called on the support of experienced attorneys specializing in white-collar crime when investigative proceedings against those responsible for the company became known or internal criminal allegations had already been made concrete. For some years now, this has often been different in Germany – for very good reason.

There are two constellations in particular in which internal company investigations play a major role these days. Either your own company may have been harmed by internal or external perpetrators, i.e. the company has become the victim of a crime directed against the company, or suspicions have arisen against managers or employees of the company, so that there is a risk under criminal, civil or media law or there could be disadvantages for the company itself.

Internal investigations at the connection between criminal, labor, civil and data protection law

Internal investigations always take place at the interface between criminal law, labor law, civil law and data protection law. Not only the Code of Criminal Procedure (StPO) and the Code of Administrative Offenses (OWiG), but also labor law regulations and data protection law must always be observed. The attorneys at H2W are particularly specialized in this connection and have in-depth and tried and tested expertise over many years. Of course, we work – on request or as required – with renowned and proven specialist attorneys for labor law, specialized civil law firms, tax consultants and companies as well as auditors. We have a powerful network and can offer companies holistic and comprehensive advice from a single source. This ensures that effective audit results are obtained that are legally valid and provide the company with real added value. We ensure that the company can enjoy all the maximum possible advantages in internal investigations with regards to law enforcement agencies, courts and opponents.

The aggrieved company: Reason for internal investigations

Sometimes within a company – often as a result of accidental discoveries – the (unsecured) suspicion suddenly arises that the company may have been harmed by its own employee or by a person outside the company. In many of these cases, an internal investigation carried out by external attorneys specializing in criminal law makes sense to clarify the facts and either to exonerate the accused or to dispel suspicions against them. Often the company is also concerned with identifying and later enforcing claims against the perpetrator(s). A necessary preliminary stage of this is the acquisition of legally permissible and thus – importantly – judicially sound knowledge and evidence.

It is true that in-house investigations can in some cases also be carried out by in-house persons (e.g. legal department, auditors, etc.), but such investigations bring with them numerous problems of a legal, labor-law and psychological nature. A legally compliant, result-oriented and thus successful internal audit of the investigative procedure and also the legal requirements is extremely demanding if – legally compliant – findings that can be used in court are obtained and, for example, in the context of a criminal complaint or labor law sanctions (extraordinary termination, ordinary termination, warning etc.) later used in a legally secure way. Against this background, many companies of different sizes make a conscious decision to have these in-house investigations carried out by external criminal law attorneys who specialize in white-collar crime.

Our attorneys specializing in criminal law and specialist attorneys for criminal law are experienced in planning, implementing and carrying out internal investigations in companies of all sizes. The decisive factor is an appropriate, individually tailored or custom-made solution for the company concerned. A cookie-cutter approach of “sample investigations” that can sometimes be seen in companies is often doomed to failure and not infrequently also aligns the workforce against the company management. We know from years of experience how to do things better and how to conduct internal investigations successfully and legally.

Reason for internal investigations: Imminent civil or criminal liability of the company itself

If the company is not the direct “victim” of a crime, there is often the risk of civil, criminal or administrative offense liability in the event of illegal actions by internal or external persons. It is conceivable, for example, that an administrative offense procedure, which in some cases threatens existence-destroying fines, could be initiated against the company, even if the company managers were previously completely unaware of the actions of individual employees. In addition, there is a threat of negative headlines in the press and thus, in some cases, considerable damage to the company image - a PR disaster.

In order to prevent these risks from occurring and to avert damage to the company and its employees, many companies are even obliged to investigate the facts internally. In these cases there is often even a legal obligation for corporate bodies to conduct internal investigations. There is a legal obligation to clarify the facts at least in those constellations in which a suspected matter could give rise to future risks or the company may make claims for compensation against the accused. If this obligation to clarify the facts is not fulfilled, this failure in turn represents a legal risk for those responsible for the company. Depending on the situation, a corresponding liability risk can also arise for the supervisory board if it does not initiate any further steps to clarify the facts. Our attorneys support you in keeping damage, liability risks and negative press reports away from your company and your employees.

Internal investigations as an essential component of compliance management systems

An integral part of the compliance work of companies is in addition to the compliance management system itself, internal (compliance) guidelines, training, etc, information gathering and clarification of the facts. The compliance work of companies can be viewed favorably by investigative authorities and, for example, lead to a waiver of sanctions against the company. The prerequisite for this, however, is that the company’s compliance work not only serves to prevent and detect legal violations, but also punish and sanction corresponding legal violations if necessary. If there is no will to uncover and, if necessary, punish compliance violations, public prosecutors and authorities responsible for imposing fines against the company under the OWiG then quickly assess compliance work as a “fig leaf” or “showcase” measure, so that the advantages of compliance work cannot be brought to bear, an on the contrary, additional disadvantages can threaten the company.

Internal investigations in companies: Dos & Don’ts

The field of work of internal investigations has not yet been regulated by the government. But in practice, certain standards have emerged that must be observed when conducting internal investigations. The aim is to legally obtain information and knowledge that can be used in court. If the aforementioned constitutional standards are not adhered to, the knowledge gained can quickly become unusable. In addition, under certain circumstances, findings that cannot be used in court may be produced which the companies (for example in compensation proceedings) cannot use. If knowledge is obtained illegally or is legally unusable, there is an additional risk of damage to the company’s image because the internal investigation was carried out with technical errors. All of these points speak in favor of not carrying out in-house investigations yourself, but of commissioning specialized law firms (specialist attorneys for criminal law) to do so. Our attorneys at H2W are just as experienced in project planning and internal investigations as they are in communicating with public prosecutors, police stations and other investigative authorities.