Law

When the Public Prosecutor Rings Twice

10.12.2018 Normal operation becomes impossible once the public prosecutor has entered company premises: No employee in the line of fire of the law-enforcement bodies will be in a position to pursue his or her normal activities. For this reason, every company should implement a criminal law management system, yet very few appear to be concerned about these possible risks.

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Picture: Andrey Popov – AdobeStock

Most managers are unaware that major criminal law proceedings can threaten a company’s very existence just as easily as a disruptive technical incident in a production plant. If it comes to prosecution then every employee affected is concerned solely with his or her personal legal defence because of the fear of being held criminally responsible for company behaviour. The employee’s personal freedom and personal assets are seriously threatened in such a case.

The responsibility of an enterprise, i.e. of legal persons such as limited liability companies, joint stock companies, limited partnerships, etc., ceases when it comes to criminal law. Legal persons cannot make themselves liable to prosecution in Germany. Only natural persons, i.e. individual employees of a company, can become liable to prosecution. Of course, in the case of company-related criminal offences, criminal proceedings will focus on persons running the company (company directors, company chairpersons) because they bear general responsibility for fulfillment of all obligations in a company. However, these persons can delegate responsibility to subordinate employees who then (additionally) bear personal criminal responsibility for fulfillment of these obligations. If a delegated obligation is not properly fulfilled by a subordinate employee then that employee becomes criminally liable for the specific error, as does that person’s superior because he or she did not sufficiently fulfill all the necessary selection, instruction, and supervisory obligations. Every delegation of responsibility increases the number of potentially criminally liable persons in a company.

Low Threshold of Culpability

Considering that the threshold of culpability is set so low, particularly in environmental law, because even small offences against environmental legislation can be punishable, it becomes all the more incomprehensible that these risks are largely absent in the case of companies. Further criminal law risks lurk in other areas, such as in foreign trade legislation or in the criminal code for tax offences.

Let us imagine ourselves in the situation of a company which comes under the Hazardous Incident Ordinance (12th German Federal Immission Protection Ordinance, 12. BImSchV) owing to the large amounts of hazardous substances present. For its hazardous incident documentation this company will have to first theoretically consider what technical and organisational factors can go wrong and cause a hazardous incident. Appropriate technical and organisational countermeasures then have to be adopted to establish a safety management system and recorded in writing. A hazardous incident can have ruinous consequences for a company if a plant for production of goods to be sold can no longer operate owing to a fire or an explosion. Some companies take out insurance for such cases which at least covers part of the loss of income. How­ever, such insurance policies are always time limited (e.g. cover only losses for the first three years after an incident), and not all companies have them. And they do not compensate for the damage to a company’s image resulting from its failure to meet agreed delivery obligations.

Atomkraft

It doesn’t always have to be the total meltdown: Whenever people are harmed, the law enforcement agencies investigate in the company. Picture: were – AdobeStock

Consequences of a “Legal Incident” not Immediately Obvious

Whether hazardous incident or criminal proceedings – both can have similar practical consequences for a company. Production can no longer proceed at a normal level; production losses arise which in some contractual situations may be exacerbated by agreed contractual penalties. In severe cases this can lead to company insolvency.

For this reason, companies should not only be fully aware of the inherent technical risks of their production but also concern themselves with possible criminal law consequences of misconduct. Just as regular hazardous incident drills are performed in a plant, provision must also be made for a “legal incident” involving criminal proceedings. This is best undertaken within the framework of a criminal law management system. Such a criminal law management system can be introduced as an “add-on” into any existing management system. It is immaterial whether it is an occupational health and safety management system or an environmental management system or whether the company already has a total quality management system. None of these systems considers the legal risks described here.

Rapid Abatement of Criminal Proceedings Should Be the Aim

What is a criminal law management system all about? The goal is to achieve cessation of preliminary investigations as soon as possible in the case of criminal proceedings because there are insufficient grounds for suspicion. Sometimes hazardous incidents occur for which no employee can be held criminally liable, for example if there is technical failure in spite of proper maintenance and servicing. Once such a situation becomes apparent the public prosecution department will immediately cease any investigation that has already started and always has to be undertaken whenever people are injured or there is damage to the environment.

If abatement is not possible there still exists the secondary goal of attaining cessation of procedures according to § 153 of the German code of criminal procedure (StPO). This is possible if the fault of the perpetrator is very minor. As a further possibility, § 153a StPO allows cessation of procedures on payment of a certain amount of money. This would be the third aim of a criminal law management system. The general purpose of criminal law management is to prevent action being brought against company management or a subordinate employee by a criminal court and thus to avoid the risk of criminal conviction leading to imprisonment or payment of a fine.

Criminal Law Management System as a Precautionary Measure

SA criminal law management system provides abstract preparation for the opening of investigative proceedings without being exposed to the pressure of such proceedings actually taking place. It informs company employees about their rights and obligations in the case of criminal proceedings because this area often abounds in serious misconceptions.

In the company it is important to create a climate in which employees feel understood and respected, even when criminal investigation proceedings are actually opened, for example because a technical failure has led to injury to persons or to damage to the environment. For tactical reasons the criminal investigation department will often summon possible witnesses not at the company address but at their private addresses. The employee concerned will then all too often not inform his company, but take a day off, go to the police, and make various statements. He frequently fails to recognise that through his statements he incriminates himself, incriminates a colleague or management, which is certainly not his intention. The employee only wishes to demonstrate his readiness to cooperate and fails to recognise the legal consequences of his statements. Conjecture is often presented as fact, which can cause employees in responsible positions serious problems in criminal investigation proceedings and possibly also before the judge.

A criminal law management system thus also implies a considerable need for training of the entire workforce. The employees must be made aware of their rights and obligations in relation to criminal proceedings – and this must be done in a situation in which they are not exposed to the mental pressure of real-world proceedings. Companies which have set up criminal law management systems are well advised to distribute advisory booklets to their employees telling them how to behave best in the case of investigative proceedings. The employee will then tell his employer what has happened if he receives a summons from the criminal investigation department or the public prosecutor. The company should then ensure that the employee will not be heard without being accompanied by a lawyer.

Never Attend a Hearing without Legal Representation

The presence of a lawyer when witnesses are being heard has nothing to do with the concealment or disguise of facts. Nor can the lawyer make any statements about the facts of the case for the witness. However, the lawyer will make sure that the prosecution does not ask any impermissible or leading questions, as may sometimes happen.

The most important function of a lawyer, however, is to ensure that statements made by an employee are properly recorded. It is not known in many companies that no verbatim record is made of hearings conducted by the police or the public prosecutor. The witness or the accused person talks with the officials who then make a written record. In this connection, it sometimes happens that the testimony is regarded with suspicion. This is rarely the Intention of the official but happens unintentionally because the official has already constructed a picture of the presumed course of events and is therefore subjectively inclined to import this picture into the statements of the witness or the accused.

It is very hard for a witness to distance himself from a written record of his testimony which he has signed at the end of the hearing. In the trial before a criminal court judge, reference will be made to this statement if a witness deviates from it in any way. It may then happen that this witness has to face another court case for giving false evidence if what he tells the judge differs from what he told the police. Because if the two statement contradict each other one must be incorrect. Giving false testimony itself constitutes a criminal offence, which can then be pursued.
Conclusion: It is therefore very clear that companies should be prepared to face not only technical incidents but also “legal incidents” in-volving a large-scale criminal investigation. This is best accomplished with the aid of a criminal law management system. Here too advice from technical incident specialists can be helpful.

On the Topic: Criminal Law Management in Industrial Parks

The following steps should be taken to a criminal law management in the industrial park:

  • clarifying responsibilities,
  • defining the reporting channels,
  • Identifying one or more persons to maintain contact with law enforcement agencies, according to different “emergency levels”,
  • regular training of employees, including security guards (possibly supported by an information brochure),
  • regular training of all responsible persons in the companies.
Heftausgabe: Compendium of Industrial Parks 2019
Prof. Dr. jur. Hans-Jürgen Müggenborg is attorney at law and specialist for administrative law

About the author

Prof. Dr. jur. Hans-Jürgen Müggenborg is attorney at law and specialist for administrative law
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