The Customs Investigation Service (Zollfahndung) investigates suspected tax evasion, such as evasion of import duties like customs duties, import VAT and anti-dumping duties, breaches of embargoes and export controls, smuggling, and offences in the area of excise duties. A search always comes unannounced – and always only once the investigators have done their groundwork. What happens in the first hours often shapes the entire proceedings.
What the officers may do
The basis is usually a search warrant issued by a judge. It states the suspected offence, the suspects, the premises to be searched and the evidence sought. Only in case of imminent danger (Gefahr im Verzug) may a search be carried out without a warrant. The officers may enter premises, inspect documents and data carriers and take evidence with them. In doing so, they may not go beyond what the warrant covers.
The first minutes
- Stay calm and be cooperative. Resistance or obstruction only does harm. Making documents or data disappear is a serious mistake and can create grounds for arrest.
- Ask to see the warrant. Ask for a copy and read it carefully: who is suspected, what is being sought, which premises are covered?
- Call a defence lawyer immediately. The officers do not have to wait for the lawyer to arrive before starting the search, but will usually let the lawyer speak by telephone. The earlier an adviser is involved, the better.
- Designate one person as the point of contact. This person accompanies the officer in charge, coordinates internally and documents what happens.
Silence is not an admission of guilt
Suspects do not have to make any statement on the matter – and should not do so during a search. Spontaneous statements, well-meant corrections and casual conversations over coffee end up in the officers’ notes and can hardly be retracted later. Personal details, by contrast, must be provided.
Employees, too, should not give spontaneous information during the search. Whether and when they have to testify as witnesses follows from a formal summons – and even then they may refuse to answer questions if the answer could incriminate them. Inform your employees of this calmly and factually, without influencing them.
Securing and seizure
The officers will ask you to hand over documents “voluntarily”. Bear in mind: anyone who hands over documents voluntarily waives part of their legal remedies. It is often better to object to the removal and request formal seizure – without obstructing the search.
- Insist on a precise inventory of all documents and data carriers taken.
- Ask for copies of documents you need for day-to-day operations.
- For data, an on-site mirror copy is often possible, so that servers and computers remain on the premises.
- Correspondence with your defence lawyers enjoys special protection – point this out.
After the search
Now the real work begins. Through your defence lawyer you obtain access to the file and learn what the suspicion is actually based on. Only then can a strategy be developed. A voluntary self-disclosure with exempting effect (strafbefreiende Selbstanzeige) is generally no longer possible at this point. An early, well-prepared discussion with the public prosecutor’s office or the criminal tax matters unit (Strafsachenstelle) can, however, achieve a great deal.
Think of the company itself as well: banks, customers and suppliers quickly learn of a search. Coordinated, concise communication internally and externally prevents rumours.
Being prepared
Companies involved in customs and foreign trade should have a short emergency plan: who is called, who accompanies the officers, who informs management? Reception and assistants should know what to do. A one-page instruction sheet at reception is often worth more than any manual.
Our team includes former customs investigators. We know how a search is prepared, what the investigators are looking for and how to meet them factually and on an equal footing.