No ban on seizing documents from internal investigations

The European Court of Human Rights recently ruled in cases 1022/19 and 1125/19 on the appeal of two lawyers and the law firm Jones Day against the ruling of the Federal Constitutional Court on the search and seizure of documents from an internal investigation.

Jones Day had conducted an internal investigation for Volkswagen AG. In connection with investigations against unknown persons responsible at AUDI AG, the Munich II public prosecutor's office had Jones Day's offices searched and documents relating to Jones Day's investigations at and in connection with AUDI AG seized. Complaints by Jones Day against the search and seizure were unsuccessful. Neither the Regional Court of Munich I nor the Federal Constitutional Court considered the search and seizure to be a violation of Section 160a (5) in conjunction with Section 97 of the Code of Criminal Procedure (StPO) or Article 12 of the Basic Law for the Federal Republic of Germany (GG). This was justified by the fact that the seizure privilege of Section 97 of the Code of Criminal Procedure only exists in the relationship between the defense lawyer and the accused client and that this protection against seizure only applies in criminal proceedings against the client. However, there was neither a client relationship with AUDI AG nor did Jones Day perform the role of defense counsel. Therefore, documents from internal investigations were not protected, at least in proceedings against persons other than the client.

Jones Day lodged an appeal against this with the European Court of Human Rights, alleging a violation of Art. 8 of the European Convention on Human Rights. The Court rejected this complaint as unfounded.

The first objection, according to which the national legal basis for the seizure was not sufficiently clear and foreseeable, was rejected by the Court with reference to the Klaus Müller v. Germany decision (case no. 24173/18). Legal provisions could not always be formulated unambiguously. Different interpretations of a legal norm by courts do not constitute a violation of human rights if there is a mechanism for clarifying different interpretations of the law. This applies in particular if, as in the present case, the decision of the national court was based on the prevailing view.

With regard to the second complaint, according to which the intervention was not necessary in a democratic society, the Court stated that legal privilege had not been impaired. Jones Day had been mandated by Volkswagen AG, not AUDI AG, and there had been no attorney-client relationship with AUDI AG. The search and seizure was limited exclusively to documents and findings in connection with AUDI AG; those of Volkswagen AG were explicitly excluded, so that the relationship of trust between Jones Day and Volkswagen AG was not affected. The search and seizure related only to documents concerning a third company, not the client. Moreover, the search and seizure was not objectionable in view of the seriousness of the allegations made against AUDI AG at the time and in view of the fact that Volkswagen AG had already admitted comparable allegations in the USA.

The decision of the European Court of Human Rights is not surprising in view of the limited standard of review to the violation of human rights. This should clarify that the scope of protection of legal privilege does not apply to internal investigations in any case if it concerns findings, documents and work products that concern other (group) companies than the respective client. This is at least the case if - as in the present case - no negative consequences under criminal law are to be expected for the client. However, the last word on whether a confiscation privilege may be applicable in slightly different constellations has not yet been spoken. In any case, it is necessary to think about how the confiscation privilege can be at least largely preserved when commissioning internal investigations.