The focus of our activity is in the areas of White-collar offences with particular reference to fraud and breach-of trust, Corruption offences and penal law concerning competition, Labour criminal law regarding, in particular, undeclared employment, illegal temporary agency work as well as accidents at risk-prone workplaces, Penal law concerning insolvency, Law relating to fiscal offenses and self-disclosure of tax evasion, Criminal law relating to physicians and medicine, Criminal law concerning the Internet with particular regard to copyright infringement and Appeal cases.
You find exact explanations in the following.
In recent years, the penalties for business conduct relevant in terms of criminal law have been defined by an ever growing number of specific offences set forth either in the German Penal Code or in supplementary statutes. But, most of the time, investigations into white-collar offences focus on conventional types of offences like fraud (§ 263 German Penal Code) and breach of trust (§ 266 German Penal Code). These continue to be the main types of economic offences.
While fraud cases play a part especially in relation to purchasing, selling or invoicing goods or services as well as for capital procurement, accusations of breach of trust have become a gateway for criminal investigations into almost every kind of business conduct. Breach-of-trust charges are faced by general managers, executive and supervisory board members of both limited liability and companies limited by shares in the same way as by employees who have a specific fiduciary relationship to their companies and are alleged to having caused losses by acting contrary to their duties.
Even though court rulings have set limits to its scope, the elements forming a breach-of-trust offence are still lacking proper shape and thus give rise to a growing number of criminal investigations which, at the outset, are merely concerned with business activities that are risk-prone per se, with expenditures that are of no real economic interest, or are excessive in amount or with the failure of realizing opportunities for making a profit. In these cases, it will always be possible to find an initial suspicion which is sufficient for taking up investigations.
This law firm is here to defend those facing charges in every stage of criminal proceedings. The lawyers from this office are also prepared to provide support to the companies affected as large-scale search actions are often under intense media coverage, and sanctions applied under trade law and fines imposed on companies may cause serious economic detriment not least to the company itself.
Prosecuting alleged corruption offences has reached outstanding importance in the investigation practice of public prosecution departments in recent years. Many public prosecutors and police headquarters have set up specific departments focussing on these offences and mass media shows particular interest when following corruption charges. Investigators look into conventional bribery offences as set forth in Sections 331 et seq. of the German Penal Code which normally concern accusations against office holders for receiving benefits when awarding public orders.
But corrupt practices concerning purely the private business sector are also given increasing prominence in the activity of public prosecutors not least after bribery and passive bribery in business transactions was included as an offence in the German Penal Code (§ 299). In this context, particular legal problems occur at the intersection of public official and employee bribery as more and more state-owned companies are being privatised.
In addition to civil servants and other employees of government and local communities, a rising number of managerial employees, general managers, executive and supervisory board members of private-sector companies are attracting the attention of anti-corruption investigators. Apart from the so-called bribery of employees, where most investigations are initiated for accusations of breach of trust, penal law related to competition covers, in particular, the offences listed in the German Federal Law Against Unfair Competition (e.g., disclosure of business secrets).
Counsels from this law firm are ready to represent alleged offenders both during preliminary investigations and during proceedings in court. But they are also available to companies for providing consultancy on prevention which carries particular weight in the field of bribery and corruption today.
Labour criminal law is a branch of law related to economic offences and covers provisions on penal sanctions and fines, concerning the parties affected with regard to the social roles they have as employees or employers. The great majority of these provisions is directed against employers which means that labour criminal law mainly is criminal law against employers.
The criminal offences included here are closely linked to non-criminal standards provided for in industrial law, social security legislation, trade law and other provisions defined to govern occupational life. Criminal prosecution is focusing on acts committed in an attempt to withhold or misappropriate employee compensation (§ 266a of the German Penal Code), on illegal temporary agency work, the legal employment of foreigners and undeclared employment.
But the criminal consequences of accidents occurring at risk-prone workplaces can also be considered a part of labour criminal law. The question of who is responsible under criminal law is often critical in these cases and does not only concern the parties directly involved but also managerial employees, general managers and executive board members. The activities of this law firm includes representing alleged offenders in every stage of proceedings while also offering preventive consulting to companies with a view to preventing risks of criminal prosecution.
Insolvency offences are a focus of criminal investigations in business life already due to the circumstance that, as a general rule, the files of insolvency proceedings must also be presented to the public prosecution department. Such investigations concern, in particular, the general managers and executive board members of limited liability companies and stock corporations while outsiders, who give advice to a company affected by a crisis, may also be under scrutiny during criminal proceedings in insolvency cases.
Apart from the insolvency offences provided for in the German Penal Code (§§ 283 et seq.) and from intentional delays in filing insolvency petitions, these investigations, in general, also look into typical concomitant offences like fraud, breach of trust and the withholding or misappropriation of employee compensation. The centre of attention in evaluating the criminal relevance regularly is on the question of the time at which a company's excess of liabilities over assets or inability to pay its invoices has become visible to the person affected. This law firm is ready to represent alleged offenders in criminal proceedings and is available for giving advice to companies in the event of a crisis.
During the last few years, the law regarding fiscal offenses has been marked by an ever more tightening approach in both legislation and court rulings. This goes along with increased investigations by tax offices and public prosecutors which are also reflected in public discussions, making reference, e.g., to the purchase of so-called tax CDs. The "prominent cases" (e.g., Zumwinkel, Schwarzer, Hoeneß), which have been publicised recently, show, not least that government agencies are "serious" about prosecuting tax evasion. Meanwhile, plans to further tighten up legislation relating to fiscal offenses are already under discussion. This includes recent efforts to define more constraints for the conditions to be met for voluntary self-reporting of tax evasion to avoid penalties.
Due to its complexity but also to the importance of fiscal considerations made by the revenue authorities, related proceedings provide particular opportunities which defence counsels can use in favour of their clients. Examples include, in particular, voluntary self-disclosures to avoid penalties which make it possible to completely prevent any criminal sanctions for the person affected. Legal restrictions and an increasingly restrictive approach in court rulings have gained particular importance precisely in the area of self-disclosed tax evasion such that action, which must both be swift and legally safe, is required to be able to use the room to manoeuvre that is becoming tighter all the time.
In cases related to fiscal offences, finely-tuned cooperation between criminal defence and representation under fiscal law does not only make sense when a voluntary self-disclosure of tax evasion is intended. To avert and defend against accusations of fiscal offences, this law firm thus works with the tax consultant of the person concerned, other lawyers particularly qualified to handle tax law cases, tax consultants and auditors. Precisely in the event of fiscal offences, a combination of the specialist knowledge asked for, i.e., criminal law and substantive tax law, is the most promising approach to ensure success for our clients. The double qualification of Dr Wollschläger as a lawyer specializing in both criminal law and tax law also provides an extremely viable combination of these special fields.
The lawyers from this law firm are ready to provide defence counselling against charges of tax evasion to individuals and companies alike. Furthermore, they give advice on how to avoid risks in terms of criminal law related to tax offences. Our law firm will review questions of whether a voluntary self-disclosure of tax evasion should be made and offers quick and legally safe solutions if necessary.
Criminal proceedings against physicians are concerned, first of all, with accusations of medical malpractice and fraudulent invoicing but also with crimes that include, e.g., bodily injury and homicide. Increasingly, both physicians and employees of pharmaceutical companies or manufacturers of medical devices come under scrutiny during investigations by public prosecutors under charges of corruption (so-called pharmaceutical marketing).
In addition to criminal prosecution, those affected often face consequences which are even more serious under both civil law and the provisions governing their respective professions, including but not limited to high claims for damages and to the revocation of their licences to practice medicine which is tantamount to a ban from their professions. Criminal defence must consider all these concerns and, in every stage of the proceedings, look for ways of resolving a case while avoiding criminal sanctions since, in most cases, this is the basic condition required for preventing consequences outside criminal law. In the area of sponsoring activities which may be under threat of corruption investigations, it is especially important to provide preliminary consulting with a view to avoiding any circumstances that may become relevant under criminal law.
Medicinal criminal law is affecting, in particular, employees of pharmaceutical companies and manufacturers of medical devices who may face investigations for infringement of the Medicines Act, the Medicament Advertising Act and the Medical Devices Act. Lawyers from this law office are ready to defend those affected by criminal proceedings and will, as necessary, closely cooperate with civil and professional law practitioners or other experts specializing in criminal law related to physicians and medicine.
Penal law related to the Internet covers all criminal offences which bear relation to the Internet. Criminal investigations in this area, on the one hand, look into conventional offences like fraud, receiving stolen goods, libel, illegal gambling, etc. allegedly perpetrated by using the Internet. An example, which has gained particular importance in this regard, is so-called phishing, i.e., a means to illegally obtain passwords in order to commit fraud and computer fraud.
Another emphasis of investigation is on computer-specific offences like those defined in §§ 202a, 303a, 303b of the German Penal Code as well as on copyright infringements. The significance of copyrights has increased in particular and not least due to massive interventions made by the music industry in conjunction with tighter penal provisions provided for in copyright law. Criminal investigations, which can, among other actions, include large-scale search raids carried out in the homes of private Internet users, especially concern the downloading of music titles from online exchange platforms.
Apart from the area covered by substantive criminal law, the Internet plays an ever more important part for investigations carried out by police and public prosecutors in general. In a large number of criminal proceedings, the Internet is used for obtaining evidence, e.g., by monitoring e-mail correspondence or by having access to call data. Quite often, this is done while disregarding the limits which have been defined in criminal procedure law and under the Constitution in an attempt to keep surveillance from getting out of hand even further.
In terms of the law, media crime is a cross-sectional subject that embraces aspects of substantive criminal law, criminal procedural law, civil law, press and broadcasting law, data protection law and IT law. For one thing, media crime defence involves determining whether – and if so, how – violations of legal interests, in which media are either the means (the “weapon”) or the target (the “victim”), are liable to criminal sanctions. Infringements of general personal rights, such as unauthorised audio/visual recordings, occur not infrequently in practice. Not only can these lead to civil action being brought for damages and for injunctive relief: they are also relevant under criminal law as well.
And for another thing, today’s mass media also influence criminal procedure in a whole variety of ways – be it reporting on topical litigation on radio and television, as well as in print media and the Internet; actual media usage during litigation (e.g. conducting audio-visual hearings by video conference); or gathering information during criminal investigations by resorting to or accessing modern media (e.g. searching storage media, using analytical tools, telecommunications data retention, etc.).
When it comes to tackling the challenges of a digitalised world that are of such complexity, our law firm’s team will be pleased to provide you with all manner of advice and assistance.
Even though the European Union so far has no supranational authority to enact criminal laws, meaning that neither a “European Penal Code” nor a “European Code of Criminal Procedure” can be decreed from Brussels, regulatory instruments under EU law still manifoldly affect and even subordinate or supersede criminal laws applying in Germany. Numerous legal instruments aimed at cooperation amongst law enforcement authorities in Europe, such as for instance the European Arrest Warrant or the European Investigation Order, are indeed based on EU regulations and legislative acts. What is more, progress is steadily being made in efforts to introduce a European Public Prosecutor, initially for dealing with crimes that harm the EU Budget.
Since the Treaty of Lisbon came into force on 1 December 2009, the European Union has also been able to harmonise wide areas of national penal law and criminal procedural law in the Member States. This harmonisation has to be taken into account by legal practitioners in this country when interpreting the German Criminal Code in compliance with EU law – as they are bound to do pursuant to the “principle of sincere cooperation” laid down in Article 4(3) of the Treaty on European Union. This same principle has also led to the German legislator extending the scope of protection that applies in respect of offences covered by German penal law, to now include interests and in particular legal interests stipulated by the EU, namely by inserting so-called correlation clauses in numerous statutory provisions (e.g. sect. 162 subsect. 1 and sect. 264 subsect. 7 no. 2 of the Criminal Code). And in some cases, a conflict with directly applicable European law – such as basic rights or relevant EU Regulations – may even mean ultimately that elements of a crime specified in national law cannot in fact be applied.
These multi-facetted influences of EU law as well as of the Council of Europe, which to a significant degree have an impact on judicial assistance within European Union, have to be known and understood if criminal defence is to be conducted effectively in a Europe that is becoming ever more closely integrated. Our law firm will be pleased to let you benefit here from all the relevant expertise and invaluable experience it has to offer.
The rules applicable to appeals define how to review judgments in order to find errors of law. A court of appeal reviews a judgment to see whether it infringes on any procedural or material law provisions. A particularly important procedure is an appeal to the first criminal division as this is the sole remedy against a sentence which is available to an affected person in this context.
In addition to practical experience, successfully lodging an appeal requires precise knowledge of procedural rules and, in particular, of the stringent formal requirements to be met and the high number of supreme court rulings.