As mentioned in our Law-now eAlert of 23.07.2015 all clients who are or may become involved in criminal proceedings, should be aware of a significant amendment of the Code of Criminal Proceedings and the Criminal Code which came into force on 1 July 2015 (the “Amendment”).
The Amendment shifts the responsibility for the gathering and presenting of evidence to the parties, in particular the prosecutor and the injured party. The Amendment also permits the use of private documents prepared specifically for the purposes of the criminal investigation as evidence. This includes in particular private expert opinions, as well as documents prepared and gathered in the course of a private internal investigation such as investigation reports and other written statements, which previously could not have been used as valid evidence. Thus, the Amendment significantly increases the importance of internal investigations.
In most cases a company conducts internal investigations when there is a suspicion that its employees, representatives or agents committed (i) a crime to the detriment of the company, or (ii) a crime which may result in the company’s corporate liability for the crime. The investigation may involve the review of e-mails or other files recorded on company computers, other company documentation, as well as interviews of witnesses (employees). One of the advantages of an internal investigation is the possibility to relatively quickly verify the company’s suspicion and secure the most crucial evidence (in particular electronic files). An internal investigation could allow a company to avoid the disruption of its operations, which might have otherwise occurred due to actions undertaken by authorities in the course of a criminal investigation.
Clients who decide to conduct an internal investigation should be aware of the standards of gathering evidence required by the criminal procedure after the Amendment. Meeting those standards will ensure that the results of the investigation may be used as evidence in criminal proceedings. In particular, pursuant to the Amendment, evidence obtained by way of a criminal act, e.g. violation of the privacy of communication, cannot be used as evidence. This may include e.g. letters obtained by opening an employee’s private correspondence or e-mail obtained by illegally accessing the employee’s private e-mail account. Therefore, clients considering conducting a private investigation should seek professional legal assistance.