Entrepreneurial procedures and business activities are in the focus of investigations by public prosecutors. Entrepreneurial decisions are judged ex post under criminal law. The tightening of the laws and jurisdiction, especially in the areas of embezzlement and corruption, constitute new challenges for companies and their executives. In view of the U.S. Securities and Exchange Commission (SEC) or the UK Bribery Act this proves to be particularly true in the international arena.
Ufer Scharf Rechtsanwälte has extensive experience and know-how to successfully advise clients in both preventive situations and as defence counsel. The firm has represented executives and companies in a large number of criminal law cases and has successfully supported internal investigations in international corporations. The range of activities we cover includes:
We meet the high demands resulting from the rapid development of this field of law through constant participation in the scientific discussion, through lectures and publications.
Hardly any other area of law is as heavily regulated and subject to continuous legislative changes and tightening as capital market law. Violations of capital market regulations can result in severe fines and criminal penalties. Of particular practical relevance are insider trading and market manipulation, which are regulated by the German Securities Trading Act (WpHG) and the Market Abuse Regulation (MAR).
Capital market criminal law is becoming increasingly popular with investigating authorities. Although there are only a few cases in which convictions are handed down, the investigative proceedings are usually conducted at great expense and with the inevitable associated burdens for the persons concerned. As a rule, separate proceedings are conducted by the German Federal Financial Supervisory Authority (BaFin), either upstream or in parallel, which have their own special features to be observed, such as obligations to provide information.
Since capital market law matters often have cross-border implications and the regulatory framework to be observed is not only constantly changing, but also works predominantly with reference to blanket criminal offenses due to decisive European requirements, a confusing and hardly comprehensible regulatory field quickly forms for those affected. At the same time, however, this complexity can also be an opportunity to counter the accusations made by means of a well-founded presentation and a skilful approach.
Ufer Scharf advises and defends clients in this special area of criminal law with decades of experience and great meticulousness and assists board members, private individuals and companies at all stages of the proceedings.
Criminal labour law is employer criminal law. The increasing bureaucratization of working life entails considerable criminal law risks for entrepreneurs.
The range of offenses includes, in particular, the illegal employment of foreign nationals, illegal transfer of personnel, withholding social security contribution and undeclared/black labour. These offences are usually accompanied by the accusation of wage tax evasion. In addition, breaches of employment law often result in large administrative fines.
Ufer Scharf Rechtsanwälte comprehensively advices its clients in this area of law and the constantly changing implementation regulations, in particular considering criminal tax law consequences, further liability issues as well as the threat of trade register entries which may exclude the company from participating in public tenders.
Germany’s strength as an exporting nation, but also its converse considerable dependency on exports lead to trade law infringement investigations being a major focus of customs authorities.
An especially complex area in this field is the Military Weapons Control Act (Kriegswaffenkontrollgesetz, KrWaffKontrG), which regulates the import and export of military weapons. As Germany is one of the five largest global weapons exporters and given the range of national and international regulations and decisions by international organisations (UN, EU, OSCE) and numerous weapons embargos in force, it is a field that requires specialist advice. Weapons embargos do not merely cover bans on the supply of weapons but also restrictions on munition and other armaments.
Further, the Foreign Trade and Payments Act (Außenwirtschaftsgesetz, AWG), read in conjunction with certain EU regulations, sets specific authorisation requirements for certain goods. In this regard, the export of so-called dual-use products – deemed as such because they can be employed for civilian as well as military or illegal purposes – requires prior authorisation.
Embargos and regulations do not just restrict the export of goods but can also affect areas such as the import of goods or the movement of capital and payment transactions. It is here that criminal foreign trade law overlaps with criminal customs law.
The attorneys at Ufer Scharf Rechtsanwälte have extensive experience in the defence of companies and entrepreneurs active in this field. With our specialisation in criminal tax law we can ensure comprehensive and conclusive advice to our clients.
In the course of the increasing number of criminal proceedings against bank managers, the term “criminal banking law” has developed. The focus here is on the duties of managing directors as well as members of the management and supervisory board and thus allegations of breach of trust pursuant to Section 266 of the German Criminal Code (StGB). (Strafgesetzbuch, StGB).
Corporate decisions such as the granting of loans are often subjected to criminal law, particularly in the event of their failure or default.
Corporate decisions such as the granting of loans are often subjected to criminal law, particularly in the event of their failure or default. Case law confirms convictions by regional courts for breach of trust even if, for example, obligations under the German Banking Act (KWG), the Payment Services Supervision Act (ZAG), the German Securities Deposit Act (DepotG) or the German Pfandbrief Act (PfandBG) have merely been breached. In this context, it is alleged that not only a loss at risk but also a loss according to commercial principles has occurred, as every loan that is not extended in accordance with the requirements of the law would have to lead to a value adjustment.
Not least due to the increasing offer of financial investments via, for example, so-called multi-level marketing systems (MLM) as well as cryptocurrencies, the investigating authorities are increasingly focusing on the provisions of the German Banking Act (KWG) and, in particular, the prohibition of operating banking and financial services without a license pursuant to Section 54 KWG. However, companies in the traditional SME sector are also increasingly being confronted with accusations under the KWG on the occasion of financing and loan arrangements.
Other typical cases of criminal banking law include violations of the Money Laundering Act (GWG) as well as illegal employee transactions such as participation in cum-ex schemes.
In view of the constant tightening of the monitoring regulations for bank managers and employees as well as the case law, the criminal defense lawyer must work at an early stage to ensure that the person concerned, who wanted to act in the interest of the institution, does not have to bear the risk of a main hearing, but rather that the course is set for a discontinuation of the proceedings already during the preliminary proceedings. Ufer Scharf has set its standard to meet these requirements in all cases assigned to them.
After having been neglected by investigators for years, recent company collapses which gave rise to accusations of accounting fraud have led to a stronger focus on accounting law and criminal accounting law.
As criminal accounting law cuts across both business administration and law, it is the primary task of counsel to ensure and enable a joint course of action with accountants, auditors and advisors in corporate law.
With our attorneys specialised in criminal law and tax law, at Ufer Scharf Rechtsanwälte we are able to provide comprehensive advice and defence services in this field of law.
Corruption is not only prominent today, but also one of the oldest forms of white-collar crime. As such, no other field of commercial criminal law has experienced has experienced a comparable boom in the recent past. This is due not only to the implementation of specialized public prosecution offices in recent years, but also to increased public awareness. This makes the danger of prejudgement all the greater in the course of intensive media monitoring.
The defense in such proceedings requires not only a high degree of experience and tact, but also a profound knowledge of the sometimes contradictory case law.
In this context, we make sure to offer comprehensive advice by providing not only our own expertise in tax law and criminal tax law but also liaise with employment attorneys to immediately counteract any risks outside of criminal law where necessary.
Measures against environmental offenders are popular. Often criminal prosecution authorities will initiate proceedings on controversial legal grounds. In this field of law, criminal provisions are often hidden deep within various specialist laws outside of “mainstream” criminal law. Due to its close ties to administrative law, environmental criminal law often requires the application and appropriate interpretation of EU legislative acts. In numerous cases preliminary administrative questions first have to be addressed. For this reason, in environmental criminal cases it is especially beneficial to have legal representation to more successfully point out potential criminal liabilities already at an early stage of proceedings.
Ufer Scharf Rechtsanwälte not only have the criminal law defense skills, but also the knowledge of administrative law and administrative procedure required for successful client support.
In competition and antitrust law breaches usually occur in relation to domestic laws but also EU law and international treaties. The attorneys at Ufer Scharf offer not only advice to companies seeking to enforce their competition interests including industrial property rights and copyright through criminal law measures but also defend individuals and corporations. This extends to cases of unfair poaching of employees and industrial espionage.
In an internet era with the increased digitalisation of work and sensational data leaks, the illegal acquisition and transfer of data has not just become easy but has almost become a trivial offence. However, intellectual property theft can threaten the very existence of a company whose value is crucially dependent on specific business secrets.
At Ufer Scharf Rechtsanwälte we provide defence counsel to (former) employees as well as legal representation to affected companies.
Criminal tax law has grown in significance over the past few years – both in regards to the nature and the quantity of cases. This is hardly surprising given that tax law has now become one of the most complicated and fluctuating areas of law. Tax laws change almost daily, and so do the individual’s disclosure obligations.
Ever since the 1990s, when several banks were searched and account documents seized, authorities have visibly increased their efforts to trace and prosecute tax evaders.
At Ufer Scharf Rechtsanwälte we offer our clients comprehensive advice and defence in all stages of criminal tax proceedings, the initiation of which often comes as a complete surprise to the client and is accompanied possibly by coercive measures such as the search of residential and business premises and the confiscation of objects and documents as evidence.
Criminal investigation proceedings are a huge intrusion into the everyday life of the defendant. Especially in cases where the investigating authorities impose their severest measure of pre-trial detention, proceedings can have a serious effect on the defendant’s professional and private life. In crises of this kind, as legal counsel we see ourselves responsible for managing not just the proceedings but also private and professional communications on behalf of our client. In this regard, we take charge of media communications before these are instrumentalised by the prosecution authorities, as is increasingly the case, in their campaign against the defendant.
A successful defence relies on extensive knowledge of current developments in the law, case law on the relevant provisions as well as the confident application of the Code of Criminal Procedure (Strafprozessordnung, StPO).
The number of criminal proceedings relating to narcotics offences is on a constant rise; in addition, due to various legal reforms, the range of punishable offences in this field has also increased in recent years. It is therefore essential in this field to have a strong, strategic defence, capable of uncovering the prosecution authorities’ procedural mistakes and failures to differentiate lawful and unlawful, often covert investigation methods.
Suspects often tend to give statements without understanding the full facts of the case so as to secure the benefits of key witness status in accordance with section 31 of the Narcotics Act (Betäubungsmittelgesetz, BtMG). This is something we strongly advise against, as only a quick analysis of the investigation findings and the guidance of an experienced defence counsel can ensure that the statement will not be used against the client further down the line.
The attorneys at Ufer Scharf Rechtsanwälte do not only have the necessary expert knowledge but also extensive experience in the field, a sharpened forensic focus and the tactical skills required in the defence of narcotics-related crimes.
Juvenile criminal law does not so much focus on the question of an individual’s guilt but his potential of improvement through education. Despite this noble aspiration, in recent years the youth courts as well as numerous changes to the Youth Court Act (Jugendgerichtsgesetz, JGG) have driven the increasingly harsh treatment of juveniles in criminal proceedings.
Notable among these regrettable developments is the introduction of preventative detention for adolescents, the strengthening of victims’ rights in youth court proceedings and the latest tendency in higher court jurisdiction to set an example and determine punishments based on the young offender’s “level of guilt”.
An additional trend is the increasing application of standards and criteria of adult criminal law to juvenile criminal law. The aims of improvement through education and moderate use of disciplinary measures are increasingly ignored.
A strong and experienced defence with in-depth knowledge of juvenile criminal law and its application in criminal proceedings can ensure that the principle of re-education is upheld and used to the adolescent’s (aged 14 to 17) or young adult’s (aged 18 to 20) advantage.
At Ufer Scharf Rechtsanwälte we are skilled in applying the defence techniques required in cases involving young people and are well-versed in the different forms juvenile criminal proceedings can take, the various sentencing possibilities as well as how best to work with young clients, support their parents or legal guardians and collaborate with youth court services.
Capital crimes encompass all premeditated homicides. Murder carries a life sentence. The sentence can be exacerbated through preventative detention subsequent to imprisonment if the court deems this necessary due to the particular seriousness of the defendant’s guilt.
Against this backdrop, the judgement of a defendant’s criminal responsibility is of great significance in proceedings. Cases of this kind therefore require a strategy that brings to the court’s and prosecutor’s attention provisions of the criminal code as well as case law beneficial to the client in order to positively affect their sentencing.
Often, a skilled defence can ensure that a case prosecuted as attempted murder is ultimately recognised as dangerous bodily harm, thereby achieving a suspended sentence.
Outcomes of this kind require not only excellent specialist legal knowledge but also experience in the sciences of psychology, psychiatry, criminology and forensics.
The attorneys at Ufer Scharf Rechtsanwälte do not only possess the legal knowledge required in this field based on years of experience and continuous training, but also the skills necessary in dealing with the media, whose considerable influence on proceedings of this kind must not be underestimated.
Proceedings involving sexual offences are highly sensitive and have the potential to attract considerable public and media attention. This is currently underlined by the strong media presence in so-called “Me Too” and stalking allegations.
Often a conviction for rape or child abuse is dependent on the statement of a single witness. In addition, the press often only too willingly and quickly labels the defendant as guilty perpetrator. Even an acquittal or the termination of proceedings at times cannot save the defendant from the life-long sentence of being branded a “sex offender”.
In addition, the defendant is often at risk of losing their employment as well as their social life. Despite this, false accusations are unfortunately not an uncommon occurrence, particularly when children are used as pawns in custody battles, revenge is taken on an ex-partner or an affair needs to be explained.
These reasons outline why it is vital that a suspect seeks the advice of an experienced defence counsel already in the early stages of police investigations. At Ufer Scharf Rechtsanwälte we have the experience and the professional training required to successfully deal with cases of this kind as well as the media scrutiny they can attract and are able to manage and keep the damages proceedings of this kind can cause the individual to a minimum.
Anyone can quickly find themselves having to answer to accusations relating to traffic offences. Traffic offences typically include endangering road traffic, driving under the influence of alcohol or substances, the dangerous interference in road traffic or hit and run. In the wider sense, road traffic offences can also comprise crimes such as insurance fraud, failure to render assistance, insult, coercion or involuntary manslaughter.
In the case of a conviction, these offences are punishable by fine or prison sentence as well as the enforcement of a driving bans, a medical psychological examination or the entry of penalty points in the Register of Driver Fitness.
Due to our years of experience, at Ufer Scharf Rechtsanwälte we have the skills and knowledge to highlight potential risks and provide the right strategy to facilitate the rapid termination of proceedings.
The defence counsel advising a corporation has to fulfil a number of tasks on behalf of their client:
He advises in advance in order to avoid investigative proceedings. In the event of searches in the company, he ensures the lawful conduct of these investigative measures.
In view of the threat of fines of up to ten million euros per offense under Section 30 of the German Administrative Offenses Act (OWiG), he protects the company by clarifying internal procedures and communicating with the investigating authorities in order to limit the impact on the company. The company lawyer coordinates the individual interests of employees with the interests of the company, to which he alone is committed.
He has to protect the economic interests of the company in criminal proceedings by defending it against asset forfeiture, which regularly exceeds the fine many times over and can thus threaten the company’s existence.
All these activities should be carried out by the company’s defence lawyer, above all silently, which is why he also coordinates contacts with the press.
Ufer Scharf know from many years of experience the numerous interfaces at which companies can come into contact with criminal law, which is why they guarantee comprehensive advice. In addition, they are also prominently involved in the current discussion about a law on sanctions for associations – as it was recently negotiated under the title “Law to Strengthen the Integrity of the Economy” – and thus also always guarantee detailed insights also into still upcoming legal requirements for companies.
Criminal proceedings involving insolvency offences represent the majority of white-collar cases. There is a simple reason for this: Every registered insolvency is examined by the public prosecutor’s office for the suspicion of potential insolvency and bankruptcy offences. In almost half of all examined cases this leads to the initiation of investigation proceedings.
Due to the recent economic crises, triggered by the Corona pandemic and the energy crisis, more and more board members and managing directors are confronted with the criminal risks. Through various legislative measures, in particular the Corona Insolvency Suspension Act (CorInsAG), the legislature has attempted to mitigate the consequences.
In the crisis, there are numerous opportunities to minimize entrepreneurial criminal law risks through competent advice. The earlier external preventive criminal law advice is sought, the more likely it is that a reorganization concept will not involve any criminal law risk even in the event of insolvency and that there will be no threat of consequences under professional law.
At present, the investigative proceedings are strongly influenced by Corona. Here, it is necessary to take a close look at the periods of time in which the accusation of a crime was made and, in particular, to apply the different legal situations to the case.
Ufer Scharf have the high competence to point out the decisive risks, but also to adopt the right strategy in the individual defense of the entrepreneur for a possible discontinuation of proceedings, in order to also exclude consequences under professional law, such as a ban as a board member or managing director for five years.
Due to the nature of their work physicians run the risk of facing criminal accusations of medical malpractice, incorrect advice and organisational errors. Investigations into suspected causing bodily harm through negligence, involuntary manslaughter and the failure to render assistance are still common, as criminal proceedings are often used to pave the way for civil claims of damages and compensation. An increased risk of criminal liability can also arise from practices such as organ removal and abortion.
In addition, physicians are increasingly facing allegations of accounting fraud, of issuing false medical reports and taking bribes.
The consequences of such criminal proceedings can be devastating for medical professionals, as even the imposition of a monetary penalty alone can lead to a revocation of a doctor’s licence. Negative press reports also can a have ruinous impact.
The attorneys at Ufer Scharf Rechtsanwälte combine a deep specialist knowledge in this area of law with extensive experience gained from handling numerous cases and have an in-depth understanding of the specific challenges of the medical profession.
Both the manufacturing and distribution of pharmaceuticals are subject to close regulation and constant changes in law. Many practices which would formerly have been prosecuted as mere administrative offences are now punishable under criminal law. These include in particular polluted pharmaceuticals, prescription drugs and medical products.
However, not only manufacturers and distributers are at risk of criminal prosecution, but also pharmacists. Especially since the rise of “online pharmacists” offering cross-border sales opportunities, the profession not only risks administrative fines but criminal prosecution for drugs crimes should they be found in breach of the strict regulations governing this field.
In addition, criminal prosecutions for doping in professional as well as amateur sports are on the rise.
At Ufer Scharf Rechtsanwälte we have advised and represented numerous pharmacists and pharmaceutical company employees. We are therefore ideally equipped with the necessary experience and skills to successfully manage cases of this kind and keep abreast of increasingly specialized investigators.
Criminal law is an international matter. Many criminal provisions are now immediately based on or reference European Union law. Criminal prosecutions and searches also are no longer confined within national borders.
The European Arrest Warrant is now a firmly established tool in European extraditions and the number of international arrest warrants (INTERPOL red notices) continues to rise. With the European Investigation Order in Criminal Matters, further tools have been created to aid efforts between EU member states to retrieve evidence.
The international aspects of criminal law must be taken into consideration even in cases defended in Germany. Joint investigations between German and, in particular, U.S. criminal prosecution authorities are a common occurrence not only since the infamous Siemens case. Therefore, especially proceedings by the U.S. Securities and Exchange Commission (SEC) and the Department of Justice (DoJ) on the basis of the Foreign Corrupt Practices Act (FCPA) can have a significant impact on proceedings in Germany.
At Ufer Scharf Rechtsanwälte we do not only have the necessary expertise in the applicable national and international legislation and regulations, but also years of professional experience in dealing with German and foreign criminal prosecution authorities in these areas. In addition, our attorneys can draw on a global network of contacts and on the knowledge and experience of fellow attorneys in a vast number of countries worldwide and can coordinate defence strategies across national borders.
Foreign legal systems gain increasing significance for German criminal proceedings. Cases led by the U.S. Securities and Exchange Commission (SEC), for example, on charges relating to the Foreign Corrupt Practices Act (FCPA) against German companies listed in the U.S. can come to dominate proceedings in Germany. In the Siemens case this dynamic went beyond the close collaboration of German and U.S. prosecution authorities and was exacerbated by the refusal of a major U.S. law firm conducting internal investigations to submit to German criminal procedure.
Counsel can be provided in German, English, Danish, Rumanian and French.
Since the Act on the Reform of Criminal Asset Recovery (“Gesetz zur Reform der strafrechtlichen Vermögensabschöpfung”) came into effect, the fiscal component has become enormously important in the context of investigative and criminal proceedings. In almost every case involving economic and fiscal criminal law, those affected or third parties (so-called confiscation participants) are confronted with state security measures, particularly in the form of asset freezes or asset seizures. Under the reform’s guiding principle of “not making crime pay,” these security measures are enforced in order to secure the state’s subsequent claim to forfeiture. This can sometimes lead to serious interference in the business and private economic life of those affected.
In addition, asset forfeiture is highly relevant in the context of fine proceedings against companies. As part of a penalty, the state might skim off the economic benefits derived from the punished administrative offense. This economic burden often affects companies harder than the actual fine.
Compliance is the collective term for all measures aimed at ensuring that the conduct of companies and their employees conforms to legal norms and regulations.
Lawmakers and the courts have in the past decade dramatically increased the demands vis-à-vis companies in this respect. Current proceedings involving international corporations such as Siemens or Volkswagen show that the successful integration of compliance structures in a company require legal guidance on criminal law.
Criminal defence lawyers are well equipped to prevent accusations of corruption and avoid criminal accusations against corporations.
We advise companies on risk analysis as well as how best to implement effective strategies and structures. We develop individual compliance systems and train employees. If required, we supervise whistle blower hotlines and provide services as external anti-corruption officers.
The risk of criminal liability is becoming ever more relevant in the area of mergers and acquisitions. The existence of hidden slush funds or past tax evasion, failure to pay social security contributions or bribery, and the criminal sanctions these offences carry can have a severe impact on the value of an acquired company.
With our criminal law expertise, we support companies and consultants specialised in conducting due diligences and in M&A’s.
Criminal appeals (Revision) are the final decision on a criminal case. In this proverbial “last chance”, a profound scientific approach and knowledge of case law and legal literature is an absolute prerequisite. While the facts can be re-examined in the appelate court (Berufung), findings of fact are excluded in the criminal appeal proceedings (Revision). In this procedure the court reviews whether the lower court applied the substantive law correctly and whether the court of lower instance obeyed the rules on procedure. Appeal proceeings are extremely complex. Statistically speaking, only few appeals are successful; the conditions are particularly strict with the jurisdiction of the 1st Criminal Senate of the Federal Court of Justice, which is responsible for first-instance regional court decisions in Bavaria and Baden-Wuerttemberg.
Even if your criminal trial ends in a conviction, at Ufer Scharf you are in good hands with a legal team committed to representing your best interests. Although in these cases the enforcement of the sentence thereby can often not be prevented, it is possible to play an active role its enforcement and so considerably minimise its effects.
This applies particularly in cases of non-suspended prison sentences. An application for the postponement of a sentence’s immediate enforcement can enable the individual concerned to tend to urgent personal affairs or seek advice on medical issues. In some cases, a plea for clemency can serve to prevent or at least limit the negative impact of the enforcement of a prison sentence.
An early release from prison – usually possible after two thirds, in some cases even after half of the sentence has been served – is something that should be pursued and prepared for as soon as you start your sentence. We submit the right applications and accompany you at hearings before the chamber responsible for the enforcement of sentences. We of course, where appropriate, file the necessary appeals on your behalf.
Not only in case of a prision sentence but also if convicted to serve a suspended sentence or the payment of a fine, there are multiple options available to play an influential role in the enforcement of these sentences. In the case of a suspended sentence, the revocation of the suspension can be avoided even in case of a new convictions or breaches of conditions.
The rights of the individual concerned must be guarded and competently asserted, also when serving a prision sentence.
This already starts with the question of the institution at which the sentence is to be served and includes issues such as requests to be transferred to a single cell or to a different facility, either for the purpose of maintaining family contacts or to enable a return to work. Even basic questions relating to daily realities of prison life, such as visitation rights (for example without a protective screen) can require legal advice.
We also handle and supervise the relaxation of conditions, such as the transfer to an open prison facility, leave and leave from the sentence. Further, we support and help establish independent employment outside of the prison, enabling you to earn your own salary while only having to spend nights at the prison facility.
In all of these matters Ufer Scharf Rechtsanwälte has extensive experience. We provide competent support and advice. In particular attorney Tobias Pretsch, who for years was the manager of a prison department and is especially well connected in this area, is available to answer your question relating to all issues concerning sentences enforcement and the serving of a prison sentence.
In order to remedy the serious consequences of wrongful convictions and errors of justice, the law provides, within narrow limits, for the possibility of reopening criminal proceedings that have already been finally concluded. However, the res judicata effect of a judgment can only be interrupted if circumstances have subsequently come to light that render the judgment manifestly wrong in a way that is simply intolerable to the sense of justice. The law provides for several grounds for reopening, such as the existence of new facts or evidence that now exonerate the convicted person.
Since the convicted person cannot file an application for reopening himself, he needs the support of a lawyer. Due to their many years of experience with reopening proceedings, Ufer Scharf is not only able to first provide detailed advice as to whether such an application is even possible or makes sense in the individual case. We then file a corresponding motion; in this motion, the new evidence must be presented in detail, which is extraordinarily complex.