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by Dr. Katharina Wild

When a search is conducted at your company, the following applies:

Do not obstruct the search – but do not voluntarily consent to it or hand over any statements, documents, or data without verification.

A calm and controlled approach is crucial. The first few minutes should not be used to discuss the alleged offense, but rather to ensure the legal and practical aspects of the search are sound.

1. Immediate Measures in the First Ten Minutes

Remain calm and do not resist

The investigators must not be physically or organizationally obstructed. In particular, documents or data must not be deleted, hidden, destroyed, or altered.

Identify the officer in charge

Note their name, department, telephone number, case number, and the responsible public prosecutor's office or administrative authority.

Request and copy the search warrant

In particular, check:

• Which company is named?

• Which business premises are included?

• Against whom is the proceeding directed?

• What is the alleged offense?

• What documents, data, or objects may be searched for?

• When was the warrant issued?

A search warrant generally loses its legal effect after six months at the latest. Furthermore, the company in question must be identified with sufficient precision. (See the Federal Constitutional Court ruling on the six-month period and the Federal Constitutional Court ruling on the company identification.)

Notify Defense Counsel

If possible, contact a defense attorney experienced in white-collar crime, tax law, or labor law. Investigators can be asked not to begin the actual search until their arrival. However, there is generally no legal right to have the search suspended.

Designate Central Contact Persons

A member of the management team, the legal department, or a designated crisis manager should handle communication. Other employees should not provide any information about the matter.

Accompany Investigators

Each investigative team should ideally be accompanied by a company representative. This document records rooms, search operations, questions, data access, and items removed.

IT and Data Protection Information

Systems and data must be preserved. Automatic deletion routines should be stopped after consultation with legal counsel. IT staff must not remove data or conceal access.

2. What must the company tolerate?

A search of the premises of a suspect is permissible under Section 102 of the German Code of Criminal Procedure (StPO) if it is expected that evidence or the person sought will be found. For a company not under investigation, the stricter requirements of Section 103 StPO apply. Generally, a judge decides; however, in cases of imminent danger, the public prosecutor's office and its investigators can order the search.

The following must be tolerated in particular:

• entering the premises covered by the warrant,

• opening and searching cabinets, containers, and workstations,

• searching for the evidence specified in the warrant,

• examining documents and electronic storage media,

• securing or seizing items relevant to the evidence,

• appropriate organizational instructions from the officers involved.

• Electronic storage media may be searched. Under certain conditions, the search may also extend to external data accessible from those devices.

3. What rights exist during a search?

Right to be present The owner of the premises may be present during the search. If they are absent, a representative should be present if possible.

In practical terms, this means: Management may observe and document the search, but may not interfere.

Right to legal counsel Accused persons may consult a defense attorney at any time. An accused person is not obligated to make a statement. (Section 136 of the German Code of Criminal Procedure)

Right to limit the scope of the search Investigators may generally only search the premises and the designated company specified in the warrant. If several companies use the same address, their premises, cabinets, and data storage areas should be clearly identified.

If the scope is exceeded, the following statement should be made:

"I object to the search beyond the scope specified in the warrant. Please record this objection in the minutes."

However, incidental findings that indicate another criminal offense may be provisionally seized pursuant to Section 108 of the German Code of Criminal Procedure. Section 108 of the German Code of Criminal Procedure (StPO)

Protection of Confidential Communication

Documents from communications with defense attorneys and other professionals bound by confidentiality may be subject to a prohibition on seizure. However, this protection depends on the content, possession, attorney-client relationship, and the status of the accused. Not every email with a lawyer, and especially not every internal legal communication, is automatically protected.

Such documents should be identified immediately and handled separately. A request should be made to seal them without examination or to store them separately until a decision is made regarding their seizure. However, the StPO does not provide for a general, unconditional right to "sealing."

Right to Documentation

After the search is completed, the affected party can demand:

• written notification of the reason for the search,

• a list of the seized or confiscated items,

• if applicable, a certificate confirming that nothing was found.

This is stipulated in Section 107 of the StPO.

4. What applies to employee interviews?

The decisive factor is the employee's role in being interviewed.

Assaults

Assaults are only required to provide accurate personal information. They have the right to remain completely silent regarding the matter at hand and may consult a lawyer before making any statement.

Witnesses

Employees who are considered witnesses should first clarify:

• Who wants to question them?

• Is the interview only informal?

• Has a formal summons been issued?

• Is there a risk of self-incrimination?

In the case of a purely spontaneous interview during a search, there is generally no obligation to immediately testify. Witnesses are only required to comply with a police summons if it is based on an order from the public prosecutor's office. In the case of a summons from the public prosecutor's office or a court, there is generally an obligation to appear and testify. Section 163 Paragraph 3 of the German Code of Criminal Procedure (StPO), Section 161a StPO

A witness may refuse to answer certain questions if doing so would expose themselves or a relative to the risk of criminal or administrative prosecution (Section 55 StPO). They may also retain legal counsel (Section 68b StPO).

The company may not instruct employees to make false statements, coordinated accounts, or to disregard a formal duty to testify.

5. Handling of Documents and Data

The company should not make blanket declarations that all items will be "voluntarily surrendered."

If items are not surrendered voluntarily, seizure is generally required. An explicit objection should be raised against a seizure not ordered by a judge. In such cases, judicial review is possible; the affected party can also request this review themselves.

When dealing with digital data, the company should:

• document search terms, user accounts, and time periods,
• indicate private or third-party data repositories,
• clearly mark protected legal communications,
• encourage targeted data backups instead of transporting entire servers,
• request copies of business-critical data,
• have data carriers and data copies identified as precisely as possible in the inventory.

There is no right to demand that only the technically or operationally most advantageous method be chosen. However, the measure must remain proportionate. The Federal Constitutional Court requires, particularly in the case of extensive electronic data repositories, a limitation and careful review.

6. What Must Absolutely Be Avoided

During and after the start of the search, the following actions must be strictly avoided:

• Documents must be removed or destroyed,

• Messages, chats, or emails deleted,

• Data storage devices hidden,

• Systems manipulated,

• Employees pressured into making coordinated statements,

• Investigators deceived,

• Remote deletion or subsequent file redactions carried out.

Even well-intentioned, spontaneous explanations are dangerous. Attempting to "quickly clear up the misunderstanding" often provides the very connection between people, documents, and business transactions that investigators previously lacked.

7. Measures Immediately After the Search

After the investigators have left, the company should:

• Secure the warrant, minutes, and seizure list.

• Document the entire process, including times, individuals involved, and search measures.

• Record which rooms, systems, and data sets were affected.

• Record any business-critical outages and missing documents.

• Initiate measures to preserve evidence without altering data.

• Do not conduct uncoordinated internal employee interviews.

• Define a defense and communication strategy.

• Determine whether banks, insurers, regulatory authorities, or contractual partners need to be informed.

• Have the warrant, its execution, and any seizures reviewed for legal remedies immediately.

Appeals can generally be filed against judicial search and seizure orders; in the case of non-judicial seizures, an application for a judicial decision pursuant to Section 98 Paragraph 2 of the German Code of Criminal Procedure (StPO) is particularly relevant.

Concise Emergency Rules for Companies

No statements. No voluntary consent. No data alteration. Call a defense attorney. Copy the warrant. Accompany investigators. Document every access and removal.

It is also important to distinguish between different types of searches: A search conducted under criminal procedure is not the same as a company audit, an external audit by the Financial Control Unit for Undeclared Work, or any other official inspection. These measures may entail more extensive obligations to cooperate and provide documents. The crucial question is therefore which authority is acting and on what legal basis.

If you have any questions, please contact us: kanzlei@wild.legal.