Initial suspicion
Initial suspicion is the threshold at which concrete factual indications in a report justify opening an internal investigation – more than a mere hunch, but far short of proof that a violation actually occurred.
The German concept of Anfangsverdacht comes from criminal procedure law: under section 152 (2) of the Code of Criminal Procedure (StPO), prosecutors may only open an investigation where there are sufficient factual indications of a criminal offence. The German Whistleblower Protection Act (HinSchG) does not use the term itself – section 17 (1) no. 4 HinSchG simply requires the internal reporting office to assess whether the report is substantiated. In day-to-day compliance work the concept has nevertheless become the standard reference point, because it marks the decisive fork in the road: at what point may – and must – a report turn into a formal internal investigation involving data reviews, witness interviews and HR measures?
The assessment runs in two stages. The reporting office first checks plausibility: is the account internally consistent, does it fall within the material scope of section 2 HinSchG, and does it contain verifiable details such as dates, amounts, documents or people involved? If those details harden the allegation into concrete, fact-based indications, the threshold is met and the office may open an internal investigation as a follow-up measure under section 18 no. 1 HinSchG. If nothing but sweeping assertions remain, an investigation would be disproportionate and the case is closed for lack of evidence under section 18 no. 3 HinSchG. Importantly, a suspicion that is later not confirmed does not harm the whistleblower, provided they had reasonable grounds to believe the information was true at the time of reporting (section 33 (1) no. 2 HinSchG).
The threshold carries direct legal consequences. In data protection terms, only a documented, fact-based suspicion justifies intrusive measures such as reviewing an employee mailbox; section 26 (1) sentence 2 of the Federal Data Protection Act (BDSG) expressly requires documented factual indications, and following the CJEU ruling in C-34/21 and Federal Labour Court case law such processing must additionally be measured against Article 6 GDPR. In employment law, initial suspicion is explicitly not enough to dismiss anyone: a dismissal based on suspicion requires a strong, objectively founded suspicion, a prior hearing of the accused employee and – for summary dismissal – compliance with the two-week deadline in section 626 (2) of the Civil Code (BGB). Under criminal law there is no general duty to report to the authorities apart from the narrow catalogue of planned serious offences in section 138 of the Criminal Code (StGB); referring a case to the public prosecutor under section 18 no. 4 HinSchG is a matter of discretion. Accused employees benefit from the presumption of innocence until the case is closed, and their identity is likewise protected by confidentiality under section 8 (1) sentence 2 HinSchG.
Legal Basis
Sections 17 (1) no. 4 and 18 HinSchG; section 152 (2) StPO; section 26 (1) sentence 2 BDSG in conjunction with Article 6 (1) GDPR; section 626 BGB
Practical Example
The internal reporting office of a mechanical engineering company receives an anonymous report claiming that a procurement manager accepts benefits from a supplier in return for preferential contract awards. The report names two award decisions with dates and contract values, plus a hotel invoice. The compliance officer acknowledges receipt within seven days and cross-checks the named transactions against the procurement system: both contracts were in fact awarded directly, without comparative bids, and the values match. Factual indications therefore exist that go beyond a mere hunch – the threshold of initial suspicion is met. She records the reasoning in writing, involves HR and the works council to the extent required, and opens an internal investigation that is initially limited to procurement files and travel expense claims. Only once that first stage strengthens the suspicion does she extend the review to the mailbox and invite the procurement manager to a hearing – never on the basis of the report alone.