Internal investigations
Internal investigations for companies in AachenAn anonymous tip-off, an unusual payment, an enquiry from customs. When there is a suspicion within the company, management has to act without making new mistakes. Karolin Hagemann de Grzymala, LL.M., plans and supports internal investigations from the perspective of a criminal defence lawyer.
If you establish the facts yourself,you stay in control.
Getting to the facts with clear roles, and with data protection and employment law in view.
An internal investigation is an inquiry in which a company itself looks into a suspicion of misconduct. As a lawyer for internal investigations in Aachen, Karolin Hagemann de Grzymala, LL.M., makes sure that the findings can be used and that the investigation does not create further problems for the company. Germany has no specific law on internal investigations. Employment law, data protection, the works council’s co-determination rights (Mitbestimmung) and the law of criminal procedure nevertheless set clear limits.
When an internal investigation is necessary
Once a specific suspicion becomes known, management generally has to follow it up. Doing nothing can itself be a breach of duty, which can lead to a fine for breach of supervisory duty (Aufsichtspflichtverletzung, § 130 OWiG). Typical triggers are:
Irregularities in accounting, invoicing or payment flows
§ 299 StGB
A suspicion of giving or taking bribes
§§ 263, 266 StGB
A suspicion of fraud or breach of trust (Untreue) by employees
Requests for information from authorities
For example, from customs, the tax office or the public prosecutor.
A search, after which the company needs to know what the authorities might know
How an internal investigation works
- 01
Immediate measures
Secure evidence before it is lost: protect mailboxes and data from deletion and restrict access. At the same time, we check whether any deadlines are running, for example for summary dismissal (fristlose Kündigung).
- 02
Mandate and scope
We define what is investigated, who reports and who receives the findings. The works council (Betriebsrat) is involved where the law requires it.
- 03
Documents and data
Contracts, accounting entries and emails are reviewed in a targeted way, and only as far as the suspicion justifies. Specialist IT service providers can be brought in for technical analysis.
- 04
Interviews
Employees are interviewed in a carefully planned order. At the start, they are told that the firm is acting for the company and not for them. Every interview is documented.
- 05
Report and decision
The investigation ends with a legal assessment. On that basis, management decides on employment law measures, on changes to processes and on whether the company approaches the authorities.
Has the suspicion only just come to light?
Do not talk to the people under suspicion yet, and do not delete anything. Call first: +49 163 8461632. The first steps decide whether evidence is preserved and deadlines are met.
Employment law, data protection, co-determination: the limits of an investigation
An internal investigation interferes with employees’ rights. Mistakes make the findings open to challenge and can themselves be a violation.
GDPR, § 26 BDSG
Data protection
Employee data may only be processed to uncover criminal offences if documented facts give rise to a suspicion and the measure is proportionate. Whether email mailboxes may be reviewed also depends on whether private use is permitted.
§ 87 Abs. 1 Nr. 6 BetrVG
Co-determination
If technical systems are used that can monitor behaviour or performance, the works council has a right of co-determination. Standardised questionnaires may also require its consent.
§ 626 Abs. 2 BGB
Employment law
Employees generally have to provide information about matters within their area of work. How far this goes when they would incriminate themselves is disputed. A summary dismissal must be given within two weeks of learning the relevant facts.
§ 153 AO
Tax
If the investigation uncovers incorrect tax returns, there may be a duty to correct them. Where tax was evaded intentionally, a voluntary disclosure (Selbstanzeige) may be an option.
Call directly
+49 163 8461632You speak to the lawyer in person. Professional confidentiality applies from the first call.
Seizure and clear roles
The findings of an internal investigation are also of interest to the public prosecutor. Whether reports, interview records and notes are protected from seizure (Beschlagnahme) has not been finally settled. It depends on the individual case: who gave the instructions, in what role the lawyer is acting and where the documents are kept (§ 97 StPO). In 2018, the Federal Constitutional Court (Bundesverfassungsgericht) did not object to the seizure of documents from an internal investigation at the law firm that had been instructed to carry it out. That is why we plan from the outset how findings are documented and stored.
The roles must be clear as well. In the investigation, the firm works for the company. It does not also defend employees who are under suspicion. People who are interviewed should be able to bring their own lawyer. If criminal proceedings follow, every accused person needs their own defence, because a defence lawyer may not defend several people accused of the same offence (§ 146 StPO).
After the investigation
The report usually leads to several decisions that should be considered together:
Employment law steps
Dismissing an employee on suspicion alone (Verdachtskündigung) requires the employer to have done everything reasonable to establish the facts and to have heard the employee first.
Claims and insurance
Whether damages are claimed from those responsible, or a loss is reported to an insurer, depends on the findings. Deadlines may apply here too.
Get an initial assessment first
Not every tip-off justifies a large-scale investigation. In a first consultation, we clarify how serious the suspicion is and what scope is appropriate. Send an enquiry
Companies have no general duty to report criminal offences committed by employees. Specific reporting duties can, however, arise from other laws, such as tax law or the Money Laundering Act (Geldwäschegesetz). Whether the company cooperates with the public prosecutor is a strategic decision. It depends on what the authorities already know and what risks the company faces.
The findings feed into criminal compliance so that the same thing does not happen again. If the public prosecutor is already investigating, read more under Business and white-collar crime and Companies. For allegations involving data and IT, see Cybercrime.
Internal investigations in Aachen
We investigate suspected misconduct for companies in the region, on site or by video.
Aachen
For companies in the Aachen city region (Städteregion Aachen) and the Euregio, including where data or employees are abroad.
Criminal defence lawyer in AachenOther practice areas
Defence for individuals and companies, from a penalty order to extradition proceedings.
Frequently asked questions
Answers to questions that management and HR departments often ask before an internal investigation.
InterviewsDo employees have to take part in an interview?
As a rule, yes, where the questions concern matters within their area of work. This follows from the employment relationship. Whether they also have to answer questions that would incriminate them is disputed. We make sure that interviews are conducted fairly and properly documented.
Data protectionMay we review an employee’s emails?
In some circumstances. There must be documented facts pointing to a criminal offence, and the review must be proportionate. It also matters whether private use of the mailbox is permitted and whether there is a works agreement (Betriebsvereinbarung). Reviewing emails without checking these points can itself be a violation.
Works councilDoes the works council have to be involved?
Often, yes. Co-determination rights exist, for example, when technical systems are used for the analysis or when standardised questionnaires are used. Regardless of this, the works council has a right to be informed. We decide at the outset when and how it is involved.
DocumentsAre the findings protected from the public prosecutor?
Not automatically. Whether documents from an internal investigation may be seized depends on the individual case, for example on who holds them and in what client relationship they were created. In 2018, the Federal Constitutional Court did not object to such a seizure at a law firm. That is why we plan documentation and filing from the start.
RolesCan the firm also defend the employee under suspicion?
No. Whoever investigates for the company cannot also represent the interests of the person under suspicion, because those interests may conflict. If criminal proceedings follow, every accused person needs their own defence.
Talk to us before you talk to anyone else.
A first consultation clarifies where you stand and what to do next. The language of the consultation is agreed when you first get in touch, and a sworn interpreter can take part if needed.
+49 163 8461632