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House search

 


# Do you want to know how to behave in case of a house search?


Do not let yourself be provoked! Best advice is to stay cool, to keep shtum about the allegations and to call your lawyer immediately. Subsequently we take care that customs- and tax investigators do not trespass their competences.


Experienced tax investigators try to extend their psychological advance during a house search and to capitalize on their knowledge-advantage. All the more important it is, that you arm yourself against the dangers. Virtually as first aid for a raid you find a checklist with ten behaviour-rules below, which stood the test in practice. You might want to print our guidebook and have it ready to hand as the occasion arises.

 

Our behavioural guidelines also offer insight into our work as lawyers. When we give our embattled client legal advice during a searching we pay special attention to the mistakes of the tax investigator. Where we find flaws we leave no stone of the Code of Criminal Procedure unturned.

 

Fruitful, as for example the enactment of the Federal Constitutional Court (BVerfG), file number 2 BvR 2030/04 shows. In this cause the question was dealt if airy information for a fiscal offence and mere guesswork of a tax collector suffice for the enactment of a house search by a district court judge? We were convinced of the opposite. Finally this proved to be correct to the advantage of our client.

 

 

Checklist:
“What is to be done when the tax investigators are knocking at your door – first aid for the house search”

 

# Make use of your right of silence. Only name your personal data. Nothing else. First and foremost, don’t say anything about the circumstances of the case. Watch out if the head of the house search advises you about your rights. If not, this would be a formal mistake.
# Expect friendly officers! Do not underestimate your own wish to communicate in this stressful situation with a trustworthy person. Skilful tax investigators know how to exploit this need. The aim: they want to mislead the person concerned to make voluntary statements or a hasty confession.
# Don’t let anyone put the screws on you. Tax investigators like to assert during house searches that the person concerned could influence the degree of penalty by assisting in the clarification. Do not step right into the trap! You have the right to remain silent and, please, make use of it.
# Ask your lawyer for help. You have a right to call a lawyer. Apart from that you should kindly ask the civil servants to wait until your lawyer arrives in order to start the house search in his presence. He can rap on their knuckles and use the mistakes of the tax investigators to your advantage.
# Let them give you a copy of the search order. Which part do you play during the searching: are you the accused or are you uninvolved as a third party? If you are the accused, what exactly is the criminal charge? Are tax-type, the insinuated time of the offence and any action specified? If these and further information are missing the search order is attackable. It is essential that your lawyer examines each and every detail properly. In any case, a house search is contrary to law if the search order is older than six months.
# Mind the limitation period. A house search must not relate to periods of time which are penologically time barred. Investigators tend to neglect this rule. The background: in case of normal defraudation of the revenue the limitation period is five years, whereas the liability for taxation expires after ten years. In order to find out at least about the basis of taxation for the old times the tax investigation likes to look for older documents. This is illegal with the effect that the house search is inadmissible. The same is true for confiscation.
# Keep a check on anything so that the activities don’t get out of hand. The search order must delimit a checkable frame of action: where are the officers allowed to search and after what? In case the order concentrates on specified documents you should better fork them out. Thus you avoid a chance discovery the easiest and best way. The investigators are not allowed to search for these directly outside of the search order.
# Have all officers show you their service card. Note name, surname, administrative office, official functions and phone numbers. Not all officers have the same authorization. For example: prosecutor and officer of the civil penalty and criminal cases bureau have permission to screen files on site. Current officers are not allowed to do this.
# As long as you don’t have any lawyer to guard you, you should observe the officers closely and protocol the house search in detail. Thus formal flaws can later be traced more easily. Witnesses can also be helpful.
# At the end of the house search you shall sign a proof about the documents which the investigators want to carry. The form is full of traps. You shall confirm that you voluntarily forked the documents out. In any case, mark “no” with a cross. Contradict that you gave the documents voluntarily and insist on a confiscation. In any other case your lawyer won’t be able to appeal the take-away of the documentary evidence.

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W&P 

 

Wannemacher & Partner
law firm
 
Baierbrunner Straße 25
81379 München
 
Tel +49 (0) 89/748 223 0

Fax +49 (0) 89/748 223 999

 

 

Emergency number:

 

In urgent cases as house search or detention call:

 

+49 (0) 172 / 318 312 7

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