A company and its director are both suspects

Start with the name above suspicion

Article 51 of the Criminal Code allows criminal liability of legal entities and also regulates other forms of involvement. In practice, an investigation can focus on the organization and also on one or more natural persons. Therefore, ask on behalf of whom a call has been sent and in what capacity someone is being heard. A director who provides information as a representative of the company may also be or become a suspect himself. This makes role stability important from the first contact.

Create a separate overview of the alleged conduct, period and legal qualification for each person involved. Write below what knowledge and influence are assumed according to the investigation. This makes it clear whether different people are really accused of the same thing. A financial manager, an operational manager and the legal entity may deal with the same administration but have made different decisions. The administration is then shared material, while its meaning may differ for each suspect.

When is conduct attributed to the company?

The Supreme Court explained in the judgment of 21 October 2003 that attribution to a legal entity depends on the circumstances and reasonableness. The atmosphere in which the behavior takes place is an important orientation point. The judge can, among other things, look at work for the organization, normal business operations, service to the company and power of decision or acceptance. These are not four boxes that all have to be checked in the same way in every case.

It is therefore insufficient to merely point out the stationery or the employment relationship. Investigate who actually gave the assignment, what powers existed and how the activity fitted into the organization. Acceptance may also be related to insufficient care to prevent the behavior, but that does not absolve the judge from the concrete assessment. If the offense also requires intent or guilt, that requirement must also be assessed. An organizational context is not a universal substitute for all components of the criminal offense.

An organizational chart only tells part of the story

Formal documents are useful: articles of association, management regulations, procurations and job descriptions can make powers visible. Daily practice may deviate from this. For example, an employee can make payments independently while a director only receives a monthly report. Or a formally delegated task turns out to be taken over by the same director each time. Place both layers next to each other. A defense that says only that something was outsourced may miss information about supervision, signals and actual decisions.

In the 2003 judgment, the reasoning for the allocation was insufficient, after which the Supreme Court overturned and referred. That is not a general acquittal for owners who have work carried out. The meaning for a new file is methodical: the relationship between organization, tasks and behavior must be investigated and explained. Therefore, look for concrete assignment lines and relevant moments, not for an after-the-fact job description that only supports the desired answer. Existing documents and verifiable working methods are more important than a jointly formulated statement.

The director is not automatically de facto manager

In its overview judgment of 26 April 2016, the Supreme Court distinguishes the criminal offense committed by the legal entity from the question of who actually led it. A formal management position is not sufficient for this and is not always necessary. Active and effective action may be relevant, but under certain circumstances also a passive role by someone who was authorized and reasonably obliged to intervene. The concrete influence and behavior must therefore be determined. (summary judgment of April 26, 2016)

The required approach to actual leadership also requires independent attention. This cannot simply be replaced by the statement that a driver should have paid more attention. The assessment may include, among other things, consciously accepted risks of prohibited behavior, what someone actually knew and what can be deduced from the actual course of events. In the 2016 judgment, the substantive conviction was upheld; the annulment only concerned a reduction in sentence due to the lapse of time in cassation. That limited operative part deserves to be distinguished from the general interpretation of law.

A warning becomes meaningful by what follows it

An email with a warning can be important, but the subject line doesn't tell everything. What was reported, how specific was the risk and who received the content? Was an investigation started, an activity stopped or someone else made responsible? Also collect the response and follow-up. A warning without the subsequent correction may give a different picture than the full series. At the same time, a paper recovery plan does not automatically prove that a prohibited practice has actually been stopped.

Our editorial analysis is that the timeline is often more clarifying than a general discussion of company culture. Connect concrete signals to available information and actual options for action at that moment. Sometimes it becomes clear in retrospect what was previously uncertain. That difference deserves mention without projecting knowledge from the present back unnoticed. In the event of serious irregularities, current measures may also be necessary; have business continuity, legal obligations and evidence preservation jointly assessed by appropriate independent advisors.

A payment authority that did not mean the same everywhere

Fictional example: A logistics company is being investigated for incorrect invoices. Director Eva signs annual accounts, department head Karim approves suppliers and employee Lotte books payments. The study initially stated that management decided everything. A responsibility card shows that Eva received a warning about one supplier, Karim then allowed payments to continue and Lotte could only apply a technical block. That overview does not prove guilt or innocence, but makes the individual questions visible.

What counts for Eva is, among other things, what she did with the warning and what influence she had. For Karim, the approvals and his knowledge of the inaccuracy are relevant. Lotte's position requires an assessment of her own knowledge, task and room for action. The company again has its own question about allocation and possible components. One statement in which everyone says that it was decided jointly can unnecessarily erase those differences. Let each person involved first discuss independently what he or she knows and what position is being taken.

A responsibilities card per suspect

Use a table in which each suspect gets its own row. Then work with the same columns so that differences become apparent without suggestive comparison. Add a reference point to each entry: an existing document, a recognizable moment or a statement yet to be investigated. Distinguish an established fact from a suspicion of the author. In this way, the map remains a tool for analysis and does not turn into a retrospective piece of evidence that conveys more certainty than the underlying material allows.

• Accusation: which act, period and possible criminal provision are mentioned?
• Position: what formal position and actual activities existed at the time?
• Knowledge: what specific information was available and when?
• Influence: what decisions could this person actually make or prevent?
• Response: Which command, warning, check or recovery action is demonstrable?
• Source: which document supports this and what is still missing?
• Defense: which interests are your own and where can a conflict with others arise?

Then ask the lawyer what missing information is relevant for a legal decision question. A huge list of internal pieces does not automatically make for a better defense. The card helps prioritize: the authorization matrix can be important for power over payments, while a specific email says more about knowledge on a certain day. Also highlight who controls the resource and how it can be legitimately secured. Do not order the administration to be cleaned up because documents appear unfavorable; this can further complicate research and business operations.

Those who work for the company do not automatically defend everyone

Before substantive exchange, discuss who a lawyer's client is and which persons are assisted individually. The rules of conduct for lawyers require attention to conflicting interests. Payment by the company does not make a director an independent client of the same lawyer without further agreements. Nor does a shared interest in continuing the business mean that all defense strategies coincide. Confidential information must therefore be treated along clear lines from the start.

A company may benefit from an explanation in which an individual employee acted outside policy, while that employee actually states that managers knew everything. That does not necessarily have to be a fixed contradiction to make independent assessment sensible. Discuss who gets access to advice, who makes decisions about statements and who pays any compensation. Do not share personal strategy in a broad company chat without consultation. A workable collaboration requires clear boundaries for information exchange, not a joint agreement about what everyone will declare.

Preserving evidence and continuing to do business can require attention together

An investigation can affect daily processes: access to systems, administration, customer contact and current payments. Make a separate practical inventory of what is needed to fulfill obligations and retain data. Don't let legal involvement in a document depend on who can conveniently download it now. Rights of access, privacy and confidentiality remain relevant. Make a note of which data was copied, by whom and in what original context, so that later interpretation does not have to rely on isolated screenshots.

Carefully record existing retention policies and new instructions. A lawful security measure has a purpose other than removing information that may be relevant to the investigation. In the event of seizure or restrictions, ask your lawyer for the correct options for making necessary company data available. A lack of access may explain why information is still missing; it does not justify a fabricated reconstruction. For urgent business decisions, use a permanent contact person who can collect factual operational questions without determining a substantive position on behalf of all suspects.

The best first step is a separate, coherent file

Ultimately, the suspicions against the company and the positions of individuals must each be assessed on their own terms. The same pieces can have different meanings. Therefore, keep a joint factual inventory where appropriate and lawful, together with shielded individual legal assistance and positions. A trial agreement with one party or a decision about one suspect is not automatically the outcome for all others. For each document, ask which person and which legal question it concerns.

A substantively strong defense makes responsibility concrete without artificially shifting it to a colleague. She shows where information comes from, what power actually existed and what conclusions do not yet follow from the file. This also helps when the company wants to take measures to reduce risks. Such current improvements may be useful, but do not replace past assessment. First, organize roles, preserve resources, and organize independent assistance before joint conversations inadvertently lock in individual positions.