GUIDELINES ON HOW TO BEHAVE DURING SEARCHES

1. Advance preparations (compliance)

Good preparation can make the search process much easier and minimize legal disadvantages. Companies should proactively take the following measures:

• Establish a reporting chain: Define a clear reporting chain in the event of a search. Who needs to be informed and in what order? Also appoint deputies in case of absences.
• Train responsible persons: Appoint responsible persons (e.g., management, head of the legal department) and provide them with intensive training for emergencies.
• Inform employees: Inform all employees about their basic rights and obligations, in particular their right to remain silent regarding allegations of wrongdoing. A corresponding internal policy is standard practice in a compliance management system.
• Prepare a "search emergency kit": Have the most important documents and information ready, e.g., this guide, your lawyer's contact details, a template for your own seizure report, etc.
• Dawn raid exercise:Dependingon the company's risk profile, dawn raid exercises should be considered. These involve simulating a search under conditions that are as realistic as possible in order to test internal processes and the responsiveness of employees. The aim is to identify weaknesses in preparation and optimize processes for emergencies.

2. Initial measures upon arrival of the officers

1. Designate a central contact person: Immediately appoint a responsible person (ideally from management) to handle all communication with the investigating officers.
2. Ask officials to wait in a meeting room: Politely ask the officials to wait in a separate room until the relevant contact persons arrive. Prevent officials from moving around the company unattended.
3. Contact a lawyer: Inform the external lawyer immediately. The officials must allow you to contact them. Ask the officials to wait until the lawyer arrives before starting the procedure. They are not legally obliged to do so, but they are often cooperative.
4. Check search warrant:
   • Ask for the original search warrant to be handed over to you and make a copy immediately.
   • Check the decision carefully:
     • Who is the accused? Is the measure directed against the company or against individual employees?
     • What crime are you accused of?
     • Which premises and items are covered by the search? A search "at Meier's" does not allow a search at "Müller's."
     • Timeliness: Is the decision current?
   • No warrant? Only in cases of "imminent danger" are officials allowed to conduct searches without a warrant. In such cases, ask for a detailed explanation of the urgency and make a note of it. In such cases, object to the search particularly emphatically.

3. Basic rules of conduct

• No comments on the matter! This is the most important rule. No one is obligated to incriminate themselves or others. Except for mandatory personal details (name, etc.), you should no information be charged with the alleged offense.
  • Sample wording: "I am exercising my right to remain silent. Please contact our management/our lawyer."
• No voluntary consent & lodging an objection: Explain yourself never voluntarily agree to the search or seizure.
  • Sample wording: "I expressly object to the search and seizure, but will tolerate the court-ordered measure."
  • Have the objection recorded. This is the only way to preserve important legal remedies.
• Exercise your right to be present: The management or owner of the premises being searched has the right to be present (Section 106 StPO). Exercise this right.
• No informal conversations: Avoid any "small talk." Every word can potentially be used against you. Remain polite but distant.
• Prohibit questioning in the office: As the owner of the premises, you can prohibit officials from questioning your employees on site as witnesses. Insist that any questioning take place at a later date at the police headquarters and with legal counsel present.

4. Accompanying the search ("shadow")

Each searching officer or team is assigned an employee to act as a "shadow."

Tasks of the "shadow":

• Complete logging: Log in detail which rooms, cabinets, files, and computers are searched by whom and at what time.
• Keep your own seizure log: Maintain your own detailed list of all documents and files that are seized or copied.
• Make copies/images: Insist on being allowed to make copies of all seized original documents for business purposes. In the case of data carriers, ask for 1:1 copies ("images") to be made instead of taking the original hardware away.
• No active assistance: The "shadow" does not actively assist in the search, but observes and documents.

5. Handling of documents and data

• Observe seizure prohibitions: Correspondence with lawyers, tax advisors, or doctors may be subject to seizure prohibition. Proactively point this out to officials ("Correspondence with lawyers, exempt from seizure").
• Demand sealing: In disputes over whether a document may be seized, object to its removal and demand that the item be sealed and the decision submitted to a judge.
• Consult IT experts: Provide civil servants with a competent IT employee to assist them in reviewing digital data. This person can answer technical questions and monitor and log processes (e.g., copying server data).
• Work toward a data delivery agreement: Depending on the individual case, the criminal defense attorney called in to conduct the search will work toward concluding a data delivery agreement. This prevents the seizure of IT systems and ensures the continued operation of the company by negotiating that only legally relevant data will be handed over in a controlled manner, rather than the authorities taking everything.

6. After the search

1. Check the security list:
   • At the end, the officers will draw up a list of the items seized. Check this very carefully.
   • Insist on an exact description of each individual document/item. General descriptions such as "1 accounting folder" or "various documents" are not permitted and must be rejected.
   • Note any discrepancies or your general objection directly on the minutes before signing to confirm receipt.
   • You are entitled to a copy of the directory.
2. Take notes: All employees involved (contact persons, "shadows") should immediately afterwards take detailed notes of the entire process.
3. Central communication: All external communication (press, etc.) is handled exclusively by the management/lawyer.

7. Important contacts

• Internal contacts:
  • management
  • Head of Legal Department
• External legal counsel (criminal defense):
  • ROSTALSKI I Commercial Criminal Law and Compliance, Attorney Dr. TonyRostalski
  • 24-hour emergency number: 0221 29265841

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