Legal policy considerations on corporate criminal law:
1. Convenience translation
Prof. Dr. Wolfgang Spoerr, LL.M., Berlin
Legal policy considerations on corporate criminal law:
The perspective of international internal investigations
Following these very thorough and fundamental considerations which have exhaustively
examined nearly all aspects of corporate sanctions, I would like to add a few brief additional
points from the perspective of international internal investigations. This topic basically contains
two subtopics, each of which itself could fill the agenda of its own conference: On the one hand
we have the international perspective on corporate sanctions. We have already heard a
comparative law perspective on this aspect today, in other words the contribution of an
international perspective and an input parameter for the discussion that Michael Kubiciel pushed
forward. On the other hand there is very specific output resulting from the discussion
surrounding corporate criminal law 1
and its practical considerations: The international conflict
of laws follow-up questions and the specific topic of internal investigations. It poses the general
question of legal codification or at least the regulation of individual issues.
I. Internal investigations – a phenomenon of private autonomy
In line with common parlance I understand internal investigations to be the processing of factual
circumstances by and within a company itself.2
This either takes place externally through
consulting lawyers or through internal specialists from the company’s compliance department or
from internal auditing. The latter happens to be the most common option, particularly in large
and specifically international companies. In both cases we speak of “internal investigations”.
Anecdotally, I recall a situation where a colleague wanted to have the “internal” removed from a
draft with the accurate reasoning that the investigation was handled by external lawyers, not the
company’s own internal departments. “Internal” therefore does not automatically mean internally
within the company, but merely that the company initiates, controls and pays for the
investigation, as opposed to an “external” investigation through public authorities. Usually
internal investigations are an organizational and company-specific phenomenon, not related to
the defense of an individual person.3
Furthermore internal investigations through lawyers are a
very specific form of legal fact-finding. They are therefore protected under constitutional and
human rights law.4
On corporate defense Jahn NZWiSt 2014, 58; Jahn ZWH 2013, 1; Trüg FS Schlothauer, 2018, 65; Wessing
ZWH 2012, 6.
A definition is suggested in Bittmann/Brockhaus/von Coelln/Heuking NZWiSt 2019, 1 and in
Henssler/Hoven/KubicielWeigend Kölner Entwurf eines Verbandssanktionsgesetzes, 2017, § 18 (1).
On the still persisting skepticism towards the investigative actions of defense counsel and the related reactive
understanding of legal defense see Spoerr StV 2019 [not published yet].
See Spoerr StV 2019 [not published yet].
The basis and limitations of internal investigations do not come from the German Criminal Code
(Strafgesetzbuch, StGB) and the Code of Criminal Procedure (Strafprozessordnung, StPO), but
instead result from the contractual attorney-client duties5
as well as in part from the professional
duties of lawyers and those of their clients.6
For example, the truth obligation in Sec. 43a (3) of
the Federal Lawyers‘ Act (Bundesrechtsanwaltsordnung, BRAO)7
, which is interpreted as a
prohibition on lying, is supplemented by the legal concept of the knowledge organization
, which can lead to a duty to acquire knowledge for the lawyer, which is in turn
fulfilled by an internal investigation.
II. Methods of internal investigations
Internal investigations make use of all fact-finding methods deployed in typical investigation
procedures such as e-Forensics and e-Discovery, i. e. the review of what today constitutes very
large amounts of electronic data, the evaluation of documentation, the interviewing of employees
and sometimes also non-employees (if they agree to participate) as well obtaining expert
opinions, statements and reports.9
With all of these methods it is important that we as lawyers never end up putting aside
potentially legally conclusive documentation or items, thereby undermining the institutional trust
put into our profession, which is already somewhat lacking within the German legal system.
Employees may of course be questioned as potential witnesses. It is also considered admissible
for the lawyer to recommend to the witness to make use of his right of refusal to testify or give
or the withdrawal of a complaint11
in favor of the client.12
It is characteristic that coercive measures of a sovereign nature are not to be used. However, in
Germany and even more so in the U.S. employment law obligations are definitely asserted. In
BGH, Order dated 08.08.1979 – 2 ARs 231/79, Paragraph 14 – juris.
More specifically Spoerr StV 2019 [not published yet].
BGHSt 2, 375 (377); Feuerich/Weyland/Bundesrechtsanwaltsordnung/Träger, 9th Ed. 2016, § 43a Paragraph
See BGHZ 132, 30 (35 ff.); Buck, Wissen und juristische Person, 2001, pp. 409 ff.; Grigoleit ZHR 2017, 160;
Spindler ZHR 2017, 311; Spindler/Seidel NJW 2018, 2153; Wagner ZHR 2017, 203; Weller ZGR 2016, 384.
On the admissibility of so-called private expert reports: Junker/Armatage, Praxiswissen Strafverteidigung,
2009, Paragraph 108; Lemke-Küch Verteidigung im Strafverfahren, 2009, p. 19; Rasch/Jungfer StV 1999,
BGHSt 10, 393 (394); also see Bundesrechtsanwaltskammer, Richtlinien zur Ausübung des Anwaltsberufs,
11.05.1957, § 58.
Handbuch des Fachanwalts-Strafrecht/Köllner, 7th Ed. 2018, p. 45 f.
High professional standards should be accounted for here, in particular so-called Upjohn instructions and the
safeguarding of the right to obtain witness assistance. Sometimes the inclusion of meeting witnesses is
recommended, Handbuch des Wirtschafts- und Steuerstrafrechts/Dierlamm, 4th Ed. 2014, Chapter 29,
Germany, these are theoretically enforceable as well, though compulsory enforcement is
unrealistic. The employee has a duty to cooperate as far as his employment tasks are concerned.
However, this is of course sanctionable only in extreme cases. If the employee states that he does
not remember anything, there is not much an internal investigation can do to change that. At its
core an internal investigation is therefore usually dependent upon the document inventory which,
in an age of post-millenial textualization of previous oral communication into electronic
communication, tends to provide enough input in any case.
III. Internal investigations – no privatization of state tasks, but a response towards a
globalized economy with unregulated crossover competencies
Within the German discourse, internal investigations have occasionally been treated as a slightly
suggestive privatization of what should actually be a state task. What was previously a state
monopoly, i.e. the state monopoly on investigation and power, is now taken over by private,
corporate stakeholders, and even by lawyers. Some see this as giving sovereign power to private
stakeholders, others hope for relief and support for state activities at the very least – a
perspective that Thomas Weigend reported on with regard to the U.S.
A relief for state activities is in fact not the essential driver for internal investigations within
large companies. Instead the international dimension plays a key role. Companies have to
investigate internally because they act internationally. German companies are particularly active
on an international scale. In case of possible misconduct they are faced with a high plurality of
crossover competencies in terms of prosecution. 13
This is therefore not about the privatization of
the activities of the German public prosecution, but rather about the company’s position vis-à-vis
numerous public prosecution authorities. 14
Internal investigations are less about a privatization
within the national legal sphere, as is the predominant understanding within the German
discourse, particularly so in the legal discourse, but rather a response towards what is in fact
unbounded statehood within a globalized economy.
The discourse which is strongly focused on the privatization perspective therefore covers up the
main driving forces for internal investigations in companies. To put it more into the words of
criminal law dogma: The typical duality of “place of (criminal) action” and “place of outcome
(of said criminal action)” competencies – in a globalized economy we speak of marketplace
competencies – leads to crossover competencies of virtually Babylonian dimensions. Let us look
at the example of a manufacturing company within the automotive industry exporting its cars to
140 or 180 markets. If a criminal offence is taken to have been committed, the market-specific
For an international perspective Davis International Double Jeopardy: U.S. Prosecutions and the Developing
Law in Europe, American University International Law Review, August 2016, p. 57; The decisions of the
French instance courts were all repealed though, Cour de Cassation, Criminal division, 14.03.2018, n°16-
Geis wistra 2018, 200.
place of outcome competencies will be present everywhere, for example as regards illegal
advertising, fraud or negligent bodily harm. In addition there is a domestic place of action
responsibility, in cases of division of labor with locations domestic and abroad and even a
number of places of action responsibilities. Sec. 9 StGB further extends this concept.
The aforementioned also has an impact on how we understand and how we must regulate
internal investigations. Even an informal expectation that leans towards “full transparency” vis-
à-vis all public prosecution authorities that may be responsible is inappropriate here. No
company can disclose a critical set of factual circumstances to 100 national public prosecution
authorities and act cooperatively towards each of them to the same extent. Therefore my appeal
incidentally also goes towards the criminal lawyers and the academics, to please bear in mind the
consequences resulting from the hitherto unorderly extraterritoriality of the connecting factors,
especially the duality of action and outcome responsibility in a globalized economy. In addition,
accessory regulation in criminal law is also of great importance. Looking at capital market
criminal law as an example, we usually see many transnationally linked transactions. One and
the same offence against what is basically the same regulatory principle everywhere constitutes
numerous offences with numerous prosecution competencies in terms of criminal law
As we know, ne bis in idem does not traditionally apply between sovereigns and therefore, from
a traditional viewpoint, does not apply at the international level.16
Whether the exemptions under
EU law in Art. 54 of the Schengen Convention (Schengener Durchführungsübereinkommen,
and Art. 50 of the Charter of Fundamental Rights of the European Union (Charta der
Grundrechte der Europäischen Union, EuGrCH) extend to corporations is not established, even
though there are good reasons to assume that this should be the case.18
Stronger coordination and
alignment of sanctions at an international level remains wishful thinking. Nevertheless, it is
baffling when supranational legal acts make decisions for national legislatures on the question of
associations' treatment as addressees of criminal sanctions, while the typical follow-up questions
of international effects are left unresolved and thus left for jurisprudence to determine regarding
the elementary requirements of constitutional and human rights.
See WpHG/Assmann/Schneider/Spoerr, 7th Ed. 2019, § 119 Paragraph 203 ff., § 120 Paragraph 424 ff.
Art. 4 (1) of Protocol 7 to the ECHR even by its own wording is only applicable on a national level and there
is no international law principle reflecting “ne bis in idem”, ECJ, Judgement dated 29 June 2006 – Rs. C-
308/04 P, appeal proceedings , SGL Carbon AG/Commission of the European Communities.
See Hart-Hönig in: Strafverteidigung im Rechtsstaat – 25 Jahre Arbeitsgemeinschaft Strafrecht des
Deutschen Anwaltvereins, Special Edition, p. 530 (533 f.).
Grotenrath, Unternehmenssanktionierung in Europa – Jurisdiktionskonflikte im Kontext transnationaler
Verbandsverantwortlichkeit, 2017, p. 192; Jarass, Charta der Grundrechte der EU, 3rd Ed. 2016, Art. 50
Paragraph 7; Europäisches Unionsrecht/von der Groeben/Schwarze/Hatje/ Lemke, 7th Ed. 2015, Art. 50
Paragraph 6; Momsen/Grützner, Wirtschaftsstrafrecht, 1st Ed. 2013, Chapter 3 Paragraph 17; Rönnau FS
Volk, pp. 583 ff.
However, even if a transnational ne bis in idem on the sanctions side were to be recognized at
some point, along with a “no piling on”19
policy as a relativity measure20
, and this was to be
applied to corporations, there would still be difficult questions to address, particularly the
following: “When do we have an idem?” and “When do we have a bis?” Even when dealing with
an offense committed by an individual, it sometimes proves difficult to assess whether the same
set of facts is presented as one that has already been pursued. If I see it correctly, the
jurisprudence of the European Court of Justice and the Federal Court of Justice
(Bundesgerichtshof, BGH) have found quite the convergent solution here.21
As regards the
organizational context, which is characteristically weighty in the area of corporate liability, this
becomes even more difficult. Generally speaking, it is not the concrete individual wrongdoing of
a single person that provides the linking element for an investigation. Instead, there are very
complex organizational structures at hand, where active wrongdoing and supportive aiding,
independent action and failure to intervene as well as intentional committal and negligent
looking away often flow smoothly into one another. Quite often there are also completely
different outcomes from the same action. Whether and, if so, under what circumstances these
outcomes and the underlying actions shall be clasped together as one action in the legal sense
under a transnational ne bis in idem will lead to very difficult follow-up questions. This aspect
should perhaps also be taken into account as part of the legislative question around the correct
The challenges on the legal consequences and sanctions side are therefore known. Now let us get
back to the status quo. As I said, there is a complete lack of meaningful, constitutional,
predictable coordination. We have to rely on public prosecution authorities somehow managing
to cope informally.
From the companies‘ point of view this becomes even more important as regards the procedural
The parallel existence of formal cooperation via mutual legal assistance treaties23
German now also commonly known under the acronym MLAT, and increasingly informal
investigation allies that are even more difficult to assess on a constitutional level for external
parties, lead to companies being shoved around between the various interests of state actors.
As expressed by U.S. Assistant Attorney General Rod Rosenstein in: Remarks to the New York City Bar
White Collar Crime Institute, 09.05.2018, retrievable at https://www.justice.gov/opa/speech/deputy-attorney-
The Cologne Draft also assumes an attribution solution: Henssler/Hoven/KubicielWeigend Kölner Entwurf
eines Verbandssanktionsgesetzes, 2017, § 8.
ECJ, Judgment dated 26.02.2013 – C-617/10 = NJW 2018, 1233 (1235); ECJ, Judgment dated 09.03.2006 –
Rs. C-436/04 = EuZW 2006, 274 (275); BGH, Judgment dated 12.12.2013 – 3 StR 531/12 = NJW 2014,
1025 (1026); BGHSt 52, 275 = NJW 2008, 2931, (2932 f.).; Jarass, Charta der Grundrechte der EU, 3rd
Ed. 2016, Art. 50 Paragraph 8.
On the procedural regulation problems in the sanctioning of legal entities: Wimmer NZWiSt 2017, 252.
On reasons for the high willingness of companies to cooperate Knauer/Buhlmann AnwBl 2010, 387 (388).
Interests based on industrial policy or fiscal interests play a role here, without the companies’
interests being involved in any structural constitutional fashion. Quite the opposite is true in fact.
Mutual legal assistance specifically has full confidentiality and the exclusion of private parties
until the very last phase at its core, at which point it is usually too late. The approaches taken so
far, for example cooperation with the competition authorities, are only rudimental and are
ultimately based on discretionary decisions by public prosecution at the earliest opportunity.
When should the proceedings be initiated? And then, there is always the problem of the legality
After all, a German, competent public prosecution authority must initiate
proceedings whenever it becomes aware of an offense, even if other authorities are already
investigating the matter internationally. It must therefore be a main aim of corporate criminal law
to regulate these issues sensibly, which will be challenging.
IV. Statutory regulation of corporate liability – preferable to have no codification of
A very different question to the one about the regulation of follow-up issues resulting from
international crossover competencies is the one about the general usefulness of a statutory
regulation of internal investigations. This should not be confused with the discourse on the legal
admissibility of individual investigations by lawyers, which the Code of Criminal Procedure
(Strafprozessordnung, StPO) clearly recognizes.25
For example, Sec. 246 (2) StPO stipulates that
for the rejection of requests for evidence there must inter alia have been “no adequate time for
the defense counsel to obtain information”. According to Sec. 222 (2) StPO, the naming of
witnesses can only be done on the basis of previous inquiries. Sec. 364b (1) No. 1 StPO
specifically speaks of “investigations into facts or means of evidence” in relation to the
appointment of defense counsel for the purpose of a retrial. Furthermore the defendant’s right to
request evidence also implicitly assumes investigative actions of the defense counsel.26
the wording in Sec. 137 StPO, the central norm for defense work, clearly shows its dynamic
character. The designation as counsel emphasizes the active (support) role, including the right to
individual investigations. 27
For this reason, the German Federal Bar Association
(Bundesrechtsanwaltskammer) already assumed the admissibility of individual investigations by
the defense counsel in its legal practice guidelines in 1957.28
The Federal Court of Justice
followed this in BGHSt 10, 393.29
The “Cologne Draft” also specifically standardizes the legality principle Henssler/Hoven/KubicielWeigend
Kölner Entwurf eines Verbandssanktionsgesetzes, 2017, § 13.
Bosbach, Verteidigung im Ermittlungsverfahren, 8th Ed. 2015, Paragraph 150; Karlsruher Kommentar-
StPO/Laufhütte/Willnow,7th Ed. 2013, prior to § 137 Paragraph 4.
Bundesrechtsanwaltskammer, Reform der Verteidigung im Ermittlungsverfahren, Vol. 13 2004, p. 89.
KK-StPO/Laufhütte/Willnow, prior to § 137 Paragraph 4; Münchener Kommentar-StPO/Thomas/Kämpfer,
1st Ed. 2014, § 137 Paragraph 11.
Bundesrechtsanwaltskammer, Richtlinien zur Ausübung des Anwaltsberufs, 11.05.1957, § 58.
BGHSt 10, 393 (394 f.).
Individual investigatory activity has not yet been codified though. The starting point has good
intentions. In 1979 the working group for criminal procedure reform already demanded the
standardization of the right of defense counsel to individual investigations in Article 10 of its
Nevertheless, I am very skeptical and see the codification of internal
investigations as a potential threat to independent legal practice, to constitutional rights and to
the overriding principles of criminal procedure.
In my view, the following aspects speak against comprehensive codification:
· The proponents of codification are, consciously or unconsciously so, gearing their
views towards the strict constitutional interference reservation within criminal
procedure law. Whatever is not specifically permitted is in turn prohibited. This is
one of the constitutional distribution principles. However, this cannot be carried over
to independent legal practice or to the rights of the accused outside of the main
proceedings. On the contrary, the opposite applies here: Whatever is not specifically
prohibited is in turn permitted.
· The legislative “acknowledgement” of something self-evident never comes without a
price, because it is never unconditional. It will inevitably come along with specific
· Legal regulation of defense counsel rights will impair the fairness of the proceedings.
The strict rule of law basis of criminal procedure law and as such for state
investigations accounts for that. Lawyers shall not be permitted to intervene; what
remains is our independence.
In 1957 the Federal Court of Justice summed this fundamental correlation up as succinctly as
possible: “The defendant’s counsel cannot have lesser rights than any third party. He can only
keep asking himself whether and, if so to what extent, his position affords him greater rights in
favor of the defendant than anybody else.”31
In other words: The lawyer’s investigative power is
– at the very least – protected by the general freedom of the client in Art. 2 (1) of the German
Constitution (Grundgesetz, GG) and the occupational freedom of the lawyer in Art. 12 (1) GG.32
The exercise of these rights is a core element of the equality of arms and of fair proceedings. As
long we as defense counsel do not have coercive means or intervention or investigative rights at
our disposal, we must at least be free to do what everyone is permitted to do.
Bemmann/Grünwald/Hassemer/Krauß/Lüderssen/Nauke/Rudolphi/Welp, Die Verteidigung-Gesetzesentwurf
mit Begründung, 1979, p. 95 f.
BGHSt 10, 393
Bundesrechtsanwaltskammer, (Fn. 2), p. 90; Pfordte/Degenhard (Fn. 5), § 4, Paragraph 41.
The “Cologne Draft” is therefore reasonably reserved regarding this point. The draft proposals
published so far 33
still contain an adequate measure of legal regulation on internal investigations.
As regards the follow-up questions of states’ crossover competencies on an international level, in
my view there is still clear room for improvement. This is all the more apparent as the “Cologne
Draft” points specifically towards the international dimension as part of the concept of the
“competitiveness of the legal systems”34
(which, by the way, I struggle with within criminal law).
There is one aspect where I consider it warranted or even necessary to strengthen the
international validity of the German legal system. The aim however should not be the arbitrary
extraterritorial activity of German criminal prosecution as a result of the expansion of foreign
prosecution, but a strengthening of the territorial sovereignty. It would be desirable here, in cases
with a place of action in Germany, to have effective mechanisms introduced to encourage or
perhaps even obligate companies to cooperate with German public prosecution authorities. From
my point of view this is not only dictated by the German territorial sovereignty, but also the
protection of the German national who is affected. I am slightly disappointed that as part of the
broad discussion on corporate criminal law, we are not looking at the experiences of our French
friends, who are dealing with this much more intelligently than any other European country by
giving the primary responsibility for the prosecution of companies to their public prosecuting
One further side comment to make on the transnational perspective: As is well known, the
“Cologne Draft” was based on the diagnosed weakness of company prosecution so far in
However, from my point of view the instruments in Sec. 30, 130 of the
Administrative Offences Act (Gesetz über Ordnungswidrigkeiten, OWiG) are not as bad as they
are portrayed, particularly as regards enforcement and its regional heterogeneity. A much
stronger intensity of the public prosecution competencies would be absolutely reasonable here
for the effectiveness and the constitutional predictability of the German criminal prosecution. In
my opinion German federalism, which would most likely prohibit the transfer to federal
prosecution, is a much bigger issue for effective and radiant international prosecution than
V. Privilege protection in internal investigations
With the question of privilege protection I could definitely blow up my allocated speaking time.
It is clear that criminal prosecution authorities have a great interest in the results of internal
which is why the question about their protection becomes obvious. You all
know just how differently such protection can be designed. In fact it is not only designed very
Moosmayer/Petrasch ZHR 2018, 504 (535).
Henssler/Hoven/KubicielWeigend Kölner Entwurf eines Verbandssanktionsgesetzes, 2017, p. 14.
Henssler/Hoven/KubicielWeigend Kölner Entwurf eines Verbandssanktionsgesetzes, 2017, p. 13 f.
Geis wistra 2018, 200.
differently, but also heavily disputed. Our American colleagues always say that they do not
understand our strange processes, entities are searched, everything is awful and unpredictable.
But legal offices are being searched in America too37
, for example those of Michael Cohen,
Donald Trump’s lawyer. And a lot is being disputed there too, such as the question of whether
the documents from an internal investigation are privileged given cooperation with the
authorities. Regarding the prosecution of individuals down the line a number of courts have now
decided that privilege protection is already dropped by way of the cooperation (keyword
The German lawyers’ hopes for protection from Sec. 97, 160a StPO39
are also being dismissed,
and now certainly with the Jones Day decisions.40
A positive highlight that must be mentioned is
that the court did not assume lesser protection and consequently a disadvantage for legal
, however it also did not object to the leading interpretation of the applicable norms,
which creates severe gaps in the protection for all lawyers and their clients, whether as legal or
as natural entities.42
These protection gaps are no longer in line with higher-ranking law, such as
the right to a fair trial as an expression of the general right to privacy in Art. 2 (1) GG in
connection with the rule of law, and also in the form of human dignity in the case of individuals
, not to mention the human right under Art. 6 ECHR. This is further emphasized by the
courts’ safe haven in the acceptance of prohibitions on the use of evidence “based on the relevant
application of Sec. 97 (1) StPO in connection with Art. 2 (1), 20 (3) GG“.44
In my opinion the legislator should leave a lot of room to practitioners here, so that regional and
problem-specific solutions can be found on a case by case basis. Legislation should not provide a
rigid corset, the way some read Sec. 160a StPO. That was precisely what we hoped for as
lawyers. This rigid concept now ultimately failed in front of the Federal Constitutional Court
(Bundesverfassungsgericht, BVerfG). However, the legislator should also not fall into the
opposite extreme now by further weakening the protection of the lawyers’ investigation powers.
On corporate criminal law in the U.S.: Hoven/Weigend ZSTW 2018, 213; Henssler/Hoven/KubicielWeigend
Kölner Entwurf eines Verbandssanktionsgesetzes, 2017, pp. 19 ff.
Frank CCZ 2018, 218.
See Jahn/Kirsch NStZ 2012, 718.
BVerfG, Order dated 27.06.2018 – 2 BvR 1405/17 = StV 2018, 547; Kempf/Corsten StV 2019, 1;
Rieder/Menne CCZ 2018, 203 (204 f.); Uwer/van Ermingen-Marbach AnwBl. 2018, 470.
Legal entities are granted a status similar to that of the accused once the initiation of proceedings against
them is objectively about to start. The protective norms are then applied respectively, BVerfG, Order dated
27.06.2018 – 2 BvR 1405/17 = StV 2018, 547, Paragraph 94; Gercke FS Wolter, 2013, p. 933 (941).
More precisely Pelz CCZ 2018, 211 (212 ff.); Spoerr StV 2019 [not published yet]; the “Cologne Draft”
closes up protective gaps and standardizes a comprehensive prohibition on confiscation, the right of refusal to
testify and a prohibition to use evidence Henssler/Hoven/KubicielWeigend Kölner Entwurf eines
Verbandssanktionsgesetzes, 2017, § 18 (1) p. 2, (2), (3).
BVerfG, Order dated 07.03.2012 − 2 BvR 988/10 = StV 2012, 610, Paragraph 29; Maunz/Dürig/Di Fabio,
85th EL 2018, Art. 2 (1) Paragraph 72 ff.; v. Mangoldt/Klein/Starck/Starck, 7th
Ed. 2018, Art. 2 (1)
BGHSt 44, 46 = StV 1998, 246.
Instead, a flexible organizational frame should be set, which leaves room to manoeuvre in order
to adequately deal with the many constellations that arise in practice. In particular, I am referring
to room to manoeuvre for companies and lawyers, as well as for public prosecution authorities in
the dialogue with lawyers and companies and, last but not least, for the courts. One thing I can
tell you for sure is that even with one case you will have plenty of constellations to handle after
just a few months.
Alongside this practical need for flexibility, the legislator must of course take into account the
boundaries set by constitutional45
and human rights law.
In my opinion we can only have a results-focused discussion on legal privilege protection once
the implicit and explicit expectations for the roles that lawyers play in internal investigations are
established. This has already been achieved in America46
, but not yet in Germany.47
This brings me to the end of my speech and I hope to have shown that a state-centralized view on
internal investigations incorrectly leaves the transnational aspect out of the equation. This does
not lead to a well-designed law of corporate sanctions and even less so to a sensible legal
regulation of internal investigations. Internal investigations are a part of civil liberty, not
privatized state activity. As an element of the fair trial principle48
they are also an expression of
constitutional and human rights of defense and can only be limited on very narrow grounds.
From my point of view, limitation of these rights is only valid where third-party interests are at
stake, such as those of any individually accused persons or the state’s interest in protecting its
territorial sovereignty against extraterritorial prosecution by other states. Besides that, a flexible
approach to regulation which links the possible level of reduction of sanctions with the
adherence to certain rules as part of the company’s investigation and cooperation behavior would
See Kubiciel Augsburger Papier zur Kriminalpolitik 2/2018.
Inadequate fact finding by the defense counsel is actually a ground for appeal in the U.S., which can lead to
the repeal of a conviction, most recently see Williams v. Filson, 2018 BL 415419, 9th Cir., No. 13-99002,
Individual investigations by defense counsel ad lawyers are still seen skeptically in practice: Bosbach,
Verteidigung im Ermittlungsverfahren, 8th
Ed. 2015, Paragraph 149; Dahs, Handbuch des Strafverteidigers,
Ed. 2015, Paragraph 217; Beck´sches Formularhandbuch für den Strafverteidiger/Ignor/Peters, 6th
2018, p. 96; Pfordte/Degenhard, Der Anwalt im Strafrecht, 2005, § 4 Paragraph 41.
See Hamm FS Salger, 1995, p. 273.