Defense of Individuals
Anyone can become a suspect.
Lately, criminal law has penetrated new areas of life which nobody imagined would be within its reach. Particularly in economic regulation, the legislator has resorted increasingly to prohibitions and directives enforced by criminal sanctions – many unknown even to those who work in the affected areas. At the same time, government agencies, armed with new investigative powers and emboldened by increasingly superficial judicial supervision, are prosecuting defendants more aggressively. Even a mere suspicion of wrongdoing opens up wide-ranging investigative powers. Mail and emails can be read, phones tapped, and even private residences put under surveillance. The target may only learn of this much later, perhaps when police search his house in front of his family and neighbors or – in the worst case – arrest him and take him into investigative custody.
The state’s investigative powers are more wide-ranging today than ever, and the individual is generally powerless without professional assistance. The role of the defense lawyer is to counter this imbalance of power by using the law. The Criminal Procedure Code (StPO) grants the defense many rights to participate and to influence decisions. These rights must be exercised diligently from the investigation phase until the trial.
“Criminal defense is a battle.” For us, this means the rights of defendants must be pursued without compromise. At the same time, however, a responsible defense lawyer must inform his client that some goals – for instance, a complete acquittal – cannot realistically be achieved in some cases. A lawyer who spares his client the truth and lets him encounter danger unprepared is not doing his job properly. Even worse, he may sacrifice the opportunity to achieve the best results for his client.
No respectable defense lawyer can guarantee his client that a lawsuit will end a certain way. What we can guarantee is vigorous and competent representation of our clients’ legal interests, and to treat our clients, regardless of the accusations against them, with respect and openness.
The statement that there is no such thing as corporate criminal law in Germany is actually false. It is still impossible to impose criminal punishments on companies and organizations. However, the German legal system contains a wide-ranging arsenal of other sanctions against companies which are equivalent to criminal punishments.
The law on regulatory offenses authorizes punishments of up to € 10 million for violations by individual employees. Even more punitive is the law on disgorgement of profits earned by the violation. In these cases, the various financial penalties can go much farther, endangering the company’s very existence. In anticipation of these sanctions, investigators now often seek to secure assets and freeze bank accounts already during the investigation phase. In the worst-case scenario, a firm can be driven into bankruptcy even before any wrongdoing has been proven.
Even when this can be avoided, the long-term effects of fine determination proceedings can be crippling. Being listed in a ‘corruption registry’ can result in a ban on bidding for public projects (among other sanctions) and eventually lead to an effective ban on a company’s activity. Press reports on such investigations unnerve clients, employees, and suppliers, and can permanently damage the reputation a company has built with care.
In light of these potential consequences, it is evident that a company needs legal advisors which represent its interests exclusively. This is especially true when the investigation also targets a company’s managers, whose interests may well diverge from those of the company.
Considering these circumstances, defense of businesses is a complex matter which requires not just legal know-how but finesse and a sense of proportion. A lawyer defending a company is often an attorney, coordinator, and PR-manager at the same time. When dealing with investigators, the defender must show strategic skill and persistence – without losing sight of what is feasible.
Our lawyers understand these demands and can fulfil them. We have successfully defended firms of all sizes, in all areas of business.
In particular, we have considerable experience in internal investigations which accompany legal proceedings. These can be a useful tool in defending firms. In an internal investigation, we are hired by the firm, but act independently to investigate alleged wrongdoing. This can eliminate – or at least reduce – the harmful effects of state investigations, including searches reported in the media, seizure of documents and data, drawn-out proceedings, and other potential problems. In the best-case outcome, the results of the investigation may be accepted by the investigating agencies without any further measures. By successfully completing numerous internal investigations – some cross-border – our lawyers have earned the respect not only of prosecutors but also of the firms on whose behalf we worked.
DANCKERT BÄRLEIN & PARTNER Rechtsanwälte GbR
T +49 (0)30 887 28 39 0 (24 hours)
F +49 (0)30 887 28 39 29