Internal Corporate Investigations

The internal corporate investigation is the procedure by which the company clarifies, before or during a criminal process, potentially criminal acts committed within it. It is a central piece of modern criminal compliance and, well executed, the queen of evidence for the exemption under Art. 31 bis 2 CP. Poorly executed, however, it can become the best evidence against the company and its officers.

When an Internal Investigation Is Activated

The protocol is triggered by a whistleblowing-channel report, an audit or internal-control alert, a finding during due diligence (typically in an acquisition) or a requirement from a public authority. Article 31 bis 5 CP requires the compliance model to impose an obligation to report and investigate irregularities, so failing to act when there are reasonable indications of an offence directly compromises the company's criminal exemption. The decision to open the investigation, and its precise scope, must be documented from the very first moment.

Structure of the Guarantor Protocol

A guarantor protocol requires: (1) appointment of an external investigator independent —ideally a criminal law firm—, with written mandate defining scope, deadlines and duty to report to the Compliance Committee; (2) investigation plan identifying hypotheses, documentary sources and witnesses; (3) digital evidence custody (e-discovery) with impeccable forensic chain of custody; (4) formal interviews with prior information to the employee about their status, the subject matter and their right to legal assistance and not to self-incriminate; (5) final report with findings, legal assessment and recommendations for internal measures and, where appropriate, external reporting.

Attorney-Client Privilege

Professional secrecy is the backbone of internal investigation. Communications between the company and the firm directing it, as well as drafts, notes and conclusions, are protected by professional secrecy and are unseizable even through judicial search, provided that: (a) there is prior written mandate, (b) the firm acts as lawyer and not as mere auditor, (c) documents are identified as subject to privilege, and (d) chain of custody is observed. STS 79/2012 and subsequent rulings have confirmed this shielding, aligned with European doctrine (AKZO Nobel case).

Rights of the Investigated Employee

An investigation that tramples the employee's rights is worthless —or counterproductive— as evidence. The worker must be informed of their status and of the subject matter, may be assisted by a lawyer and cannot be compelled to self-incriminate. Access to corporate devices and accounts is only lawful where there are clear prior policies, a legitimate purpose and strict proportionality: STC 119/2022 and the European Court of Human Rights doctrine (Bărbulescu) set firm limits on monitoring personal communications. Any disciplinary measure, including dismissal, requires proven cause and respect for these guarantees; a premature dismissal can generate labour nullity and undermine the credibility of the whole investigation.

Delivery to the Prosecutor and Penalty Mitigation

The findings are not necessarily handed over in full: a selective and well-timed delivery, accompanied by the internal measures adopted, operates as a highly qualified mitigating factor under Art. 31 quater CP and can yield one or two degrees of penalty reduction for the legal entity, occasionally approaching a partial exemption. Material evidence (emails, contracts, accounting) remains judicially seizable if reached through independent channels, but the firm's privileged work product stays protected. Deciding what to communicate, when and in what format —ideally within a prior cooperation framework agreed with the Prosecutor— is the most delicate strategic call of the entire process.