Sin categoríaA Search at the Company: the First Hours Decide the Next Four Years

The day the judicial commission shows up at your company, everything that happens in the following four hours will condition the next four years. And almost no company has planned what to do.

First: who has knocked on the door?

Not all visits are equal, and the correct response depends on who it is. The judicial commission comes with an entry and search order issued by an investigating judge: it is the most invasive and opens criminal proceedings. The Labour Inspectorate or the Tax Agency act in the administrative sphere, but what is collected there can end up, and frequently does, in criminal proceedings for tax offences or workplace accidents. And there is an essential difference almost nobody knows: before the administrative authority there are duties of collaboration, while the person under criminal investigation has the right not to incriminate themselves. Knowing which of the two scenarios you are in determines what you must and must not do.

The first five moves

Call your lawyer before opening, if possible: you have the right to legal assistance during the proceeding. Demand the court order and read it: it determines what can be searched, what can be seized and with what scope; a search exceeding the order is challengeable. Do not obstruct, but do not collaborate beyond what is required: nobody is obliged to hand over passwords or to explain where the compromising documentation is. Do not delete anything, not a single email: the destruction of evidence is an autonomous offence and turns a defensible case into a lost one. Document everything: what they take, from where, who seals it, in what condition.

The record: the document that will decide the appeal

Here lies the lawyer’s real work during a search, and it is not arguing with anyone: it is placing things on the record. That an office not included in the order was accessed. That personal devices of non-investigated employees were seized. That emails with the lawyer, protected by professional secrecy, were copied. That the company was not allowed to be present at the imaging. Each of those annotations is, months later, a ground of nullity. And what is not in the record did not happen. It is the difference between having an appeal and not having one.

The three mistakes of the well-meaning executive

Panic: calls to half the workforce, deleted messages, moved files; everything leaves a trace and becomes evidence of consciousness of guilt. Talking too much: explaining operations nobody asked about, believing this shows there is nothing to hide, actually hands over the case. Not separating interests: the company, the administrators and the employees can have conflicting interests from the first minute, and they often do; a single lawyer for everyone is, in many cases, a conflict of interest that is paid for dearly.

The following 72 hours

The search is not the end. What is done afterwards weighs as much as what happened during the proceeding: knowing the real scope through an internal investigation, in order to know before the Prosecution what is in that documentation; separating defences, uncomfortable and indispensable; managing internal communication, because the workforce knows everything within hours and silence breeds leaks; and assessing collaboration, because in certain scenarios providing information and proving the correctness of the conduct mitigates the liability of the legal person. It is a strategic decision, not a moral one, and it is taken with the data on the table.