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Fiscal and economic offences law, horak Attorneys at law, Germany

What does penal law in relation to fiscal and business offences comprise?

The generic term “penal law in relation to business offences” (or white-collar crime) comprises the application of penal law in economic life. The main emphasis is on the offences listed in the Penal Code but also on the relevant areas of the so-called criminal law statues in addition to those of the Penal Code. We are dealing here with e.g. the Regulatory Offences Act relating to Sanctioning of Enterprises, Penal Law in relation to Competition, Penal Law in relation to Foodstuffs, Penal Law in relation to Medical Preparations, Penal Law in relation to Insolvency and Penal Law in relation to Financial Markets. In the area of penal law in relation to fiscal offences, we are dealing first of all with tax evasion and lesser penalty in case of self-accusation of tax evasion. The latter special matters are usually assigned to the penal law in relation to fiscal offences and placed next to the penal law in relation to business offences.

A business offence is considered a criminal procedure under purely procedural terms at first, but designated to the court division for business offences at the District Court  by § 74 c of the Law on the Judicial System.

What is the difference between a case involving a business offence and general penal law?

In the area of penal law, a natural person is always “prosecuted”. This applies also to penal law in relation to business offences, where the executive board of directors, the executive director or another director of a company are accused and usually there is no preceding entry in the Federal Central Register. Moreover, at this level, the investigations by the public prosecutor are extremely unpleasant because a search of the office space and of the apartment, which are typically expected to occur, had not been taken into consideration. Furthermore, the consequences of a search are especially delicate: due to the safeguarding or seizure of evidence, the affected enterprise is no longer capable of performing as before. Especially the seizure of the computer system, i.e. computers with software and data, the safeguarding of files of present operations, the seizure of assets or of a part of them or even the arrest of a person due to strong suspicion alone are serious consequences. In addition, when business offences are concerned, it often takes several years to repudiate charges finally and absolutely.

When is a defence attorney required?

It is recommended to commission a lawyer with an elaboration of a defence strategy as early as possible or – at the very best – to develop a certain amount of scope so that no business offence ensues. In the course of the legal proceedings, an efficient defence requires intense and extensive communication between the client and the defence attorney, so that a logical and workable defence concept can be worked out before legal proceedings start (if possible before the first potential testimony). It is basically recommended to follow the defence attorney and the concept worked out with him without investing time and patience in a new defence concept resulting from an precipitate change of a lawyer. Therefore, it is essential to start each defence strategy with a choice of an appropriate attorney with expertise in the relevant area. For the second or third defence attorney any workable alternatives are unnecessarily limited and the consequences uncomfortable for you, both of which could have been avoided. Moreover, cases involving business offences are often very complex, not only from the legal point of view. Therefore, not only the process of getting to know the matter can be considerable, but also its documentation.

Even a final “deal” between the defence attorney, the public prosecutor and the court ending the procedure requires extensive detail knowledge.

What do we offer you in the areas of fiscal and economic offences law?

In the area of criminal law in relation to tax offences, we advise and represent enterprises and their staff at the criminal prosecution for tax offences. We naturally concentrate on the preventive advising activities. It goes without saying that we represent our clients at the investigation procedure, interlocutory proceedings and the trial process. In the case of the search measures we assist you at your communication with the bureau of investigation of tax offences and with other involved authorities. Among our practice areas are external economic relation law and customs law. We can advice, plan/co-ordinate and carry out any self-accusations of tax evasion in face of the imminent or already initiated criminal prosecution for tax offences.

In the area of criminal law in relation to economic offences (and the law relating to economic order adversities), we advise and represent enterprises and their staff in cases of industrial property protection (plagiarism, also in the area of music and film/video title, advertisement violations, criminal facts concerning sales, etc.), as well as in areas of criminal law in relation to subsidies, criminal law in relation to corruption and criminal law in relation to insolvency, including regular accompanying offences. Furthermore, we assist you for instance if you are charged with fraud or disloyalty, also in exceptional situations such as false accounting or in the area of criminal law relating to banking and stock exchange offences. We also practice in the area of environmental penal law, as well as court procedure and or civil proceedings resulting from it.

What do we need to handle your question relating to penal law?

In normal cases, we need to know exactly the acts or forbearances in question. If results of an investigation are already known, we need the appropriate documents. Any further details are to be discussed individually.

Please note that you usually have to acquiesce an investigation, but you do need, however, to support it. Typically, statements or “useful remarks” are to be refrained from. Instead, it is recommended to give appropriate instructions to your staff to refrain from making any statements or pointing out to written correspondence. (The police are not allowed to read any documents, but only to take a quick look at them to state their subject).

As a defendant, you are entitled to a lawyer. Do not hesitate to contact us. It is important especially in the “initial phase”, i.e. in the phase of the first investigations that you actually experience, to avoid creating a certain defence strategy and making any confessions, even if they might be withdrawn later.

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© German lawyer Michael Horak 2002-2017

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