Companies are often the subject of investigations by various enforcement agencies and the public prosecutor's office. Investigating authorities regularly search business premises and production sites alike, seize documents as well as electronic data. Apart from these intrusions, companies are also exposed to further risks, particularly in cases of asset disgorgement and imposition of monetary fines.
Under the Criminal Procedure Code ("Code") the Public Prosecutor is now responsible for carrying out and the direction of the investigation (instead of Investigative Judge). Regarding this particular evidentiary action – the search of premises i.e. the company, the novelties strive to make the procedure more technical and detailed. For example, the search of computers or other equipment on which electronic records are kept is performed with the assistance of an expert. Such search can only be performed with the search warrant, which is an important novelty in the new Code.
The company has the right to invite their defence counsel to attend the search. If attendance of such defence counsel has been requested, the commencement of the search will be postponed, but by no more than three hours.
A search must be performed carefully, respecting the right to privacy. As a rule, a search is conducted in the daytime, and exceptionally at night, between 22:00 and 06:00 hours, if it was commenced in the daytime and not completed, or if it so mandated in the search order/warrant.
The authority conducting the search has the power to actively search the business premises and to temporarily seize original documents. The authorities have the right to require any documents to be produced which they consider to be relevant to the subject matter of the search. In the case of seizure of original documents it is very important to take copies of each seized document, if possible.
The search must be attended by two adult witnesses, and a record must be drawn up, signed by the witnesses and the company (as the subject to the search) i.e. official company representative, who have the right to enter remarks in the record. In addition, if some objects were seized, a receipt of the seized objects is also made and is immediately issued. If during the search objects are found which are not connected to the criminal offence for which the search was undertaken (but which indicate another criminal offence prosecutable ex officio) – such objects will be seized.
The search warrant must contain the following elements: (i) title of the court which ordered the search; (ii) designation of the subject-matter of the search; (iii) reason for the search; (iv) name of the authority which will perform the search; (v) other data of importance for the search. The search should commence no more than eight days from the issuance of the warrant. If not, the search cannot be performed and the warrant will be returned to the court.
A search may be performed even without prior serving of the search order/warrant, if there is suspicion than an armed resistance or other form of violence is expected, or if there is obvious preparation for or commencement of the destruction of traces of a criminal offence or objects of importance for the proceedings, or if all company representatives are inaccessible.
The search can also be performed without such warrant in the following cases:
- with the consent of the holder the premises;
- if someone calls out for help;
- in order to directly arrest the perpetrator of a criminal offence;
- for the purpose of executing a custodial court decision i.e. placement in detention;
- for the purpose of eliminating a direct and serious threat to persons or property.
The police must take record of every search and the persons present at the search have the right to enter remarks in the record. A receipt of the seized objects is also made and is immediately issued to the person from whom the objects were seized.
In principle, any communication found during the search that falls into attorney-client privilege cannot be used as evidence in the proceedings. However, that, by itself does not offer any protection from being reviewed and copied by the authority conducting the search. The law does not contain a specific provision that all communications between lawyer and client should be regarded as privileged, and consequently not subject to disclosure. As said, this communication should be protected in principle (as there are general provisions in professional advocacy law and by-law), but there are no mechanisms to prevent the authorities to obtain this information and potentially use it as a reference point for directing the case. This evidence could not be, however, used in proceedings and consequently a court decision should not be based on it. For these purposes, the judge for preliminary proceedings should issue a ruling on excluding these from the file immediately, or no later than the conclusion of the investigation.
Also, companies should not rely on the protection offered by business secrecy legislation - such protection is exempted by the same legislation, meaning that certain data can be obtained by the authorities if they directly relate to the perpetration of the offence.
The Public Prosecutor assess whether any data/object is related to the commission of a particular offence and consequently whether these could be temporary seized. If the responsible person in the company (i.e. director) refuses to provide the objects that could serve as evidence in the proceedings, he/she could be charged with monetary fines. Also, the Public Prosecutor might find that this action constituted the elements of some other offence (i.e. if someone by force or threat of force prevents an official in discharge of duty undertaken within his competencies).
Personal data of the employees are protected from unauthorised access by third parties, provided that such access is related to labour rights and obligations. Therefore, if an employee is under criminal investigation, he/she could not rely on the provisions of the labour/data protection legislation.
Company employees should look to ensure that the authority does not review documents that fall outside the scope of the mandate and are thus not relevant to the investigation, which is not easy. However, it is not advisable to contest the relevance of borderline documents too strongly as this may be regarded as an attempt to obstruct the search and could potentially constitute elements of some other offence i.e. the Public Prosecutor could find that this action constituted the elements of some other offence (i.e. preventing an official in discharge of their duty).
Once the authorities have left the company premises, a debriefing with the in-house lawyer and/or defence counsel should be held to try to establish whether there is any substance to the assertions being made against the company and whether any further explanations or documents need to be provided to the authorities.
Finally, there is a constant issue on procedural safeguards during searches and there is a need to fully protect individuals' rights, particularly in situations where individuals are subject to intrusive investigative measures where the immediate presence of defence counsel is not ensured, which might lead to the risk of self-incrimination. For these purposes, it is necessary to amend the current legislative provisions that would prevent any situations that might lead to a possible self-incrimination.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
