House Search in Austria: Rights, Procedure, and Defence

House searches are not a marginal phenomenon in Austria. Every year hundreds of people and companies are affected. In white-collar crime in particular, the importance of the house search has grown sharply in recent years: evidence of property offences such as breach of trust or accounting offences, of corruption, money laundering, or tax evasion today lies almost exclusively on servers, in cloud storage, and on mobile phones, and the authorities rely on the element of surprise, because a request for information would warn a careful suspect.

A house search is a coercive measure that interferes with several constitutionally protected fundamental rights: the right to inviolability of the home (Sections 1 and 2 of the Austrian House Right Act, RGBl 1862/88; with constitutional rank under Article 9 StGG in conjunction with Article 149 B-VG), the right to private life (Article 8 ECHR), the secrecy of correspondence and telecommunications (Articles 10 and 10a StGG, the Austrian Basic State Law), data protection (Section 1 DSG, Article 8 EU Charter), property, the right to a fair trial (Article 6 ECHR), and the privilege against self-incrimination (nemo tenetur, Section 157 para. 1 StPO). An interference of this depth is only permissible under strict conditions, and that is precisely where the levers of the defence sit.

From the perspective of the accused, a search is not only a legal but also an existential matter. It can paralyse the business for days when servers and laptops are taken away. Through media reporting in advance, even if it was obtained unlawfully, see Vienna Higher Regional Court 13.2.2012, 18 Bs 161/11z, it can do reputational damage long before anything has been clarified in court. And it can endanger client data when the search takes place at a lawyer's, tax adviser's, or chartered accountant's office. In the early phase the defence has three tasks at the same time: managing the client's stress, documenting the procedure for later appeals, and preventing self-incrimination during the search itself.

A search in criminal proceedings is only permissible under several conditions, and each one of them is a possible point of attack for an appeal if it is not met. The central pillars are: initial suspicion, proportionality, subsidiarity, judicial reservation, and concretisation.

Initial suspicion (Section 1 para. 3 StPO; Section 119 para. 1 StPO). There must be specific indications that an offence has been committed. Mere assumptions, vague rumours, or anonymous calls without intelligible content are not enough (Vienna Higher Regional Court 26.9.2017, 17 Bs 161/17a). An anonymous report can suffice if it is plausible and credible in substance. What is impermissible: searches “on a hunch”, pure exploratory searches to gather grounds for suspicion, or searches in which it is not even established what is being looked for.

Proportionality (Section 5 StPO; Section 121 para. 3 StPO). The search must be suitable, necessary, and stand in an appropriate relationship to the gravity of the offence, the degree of suspicion, and the desired outcome. The duty of restraint applies (Section 48 para. 1 No. 4 StPO): commotion, inconvenience, and disturbance must be reduced to the unavoidable minimum. According to settled Supreme Court case law (OGH 14.5.2008, 13 Os 46/08a), a substanceless reproduction of the “verba legalia”, i.e. mere statutory citations without specific facts, does not suffice for the authorisation.

Subsidiarity (Section 5 para. 2 StPO). Among several effective measures, the one to be chosen is the one that least impairs rights. If the information sought could be obtained from public registers (the commercial register, the land register) or via administrative assistance under Section 76 StPO, the search is not necessary and is therefore disproportionate. From a defence perspective this is one of the most frequent and strongest grounds of appeal, especially in white-collar proceedings with parallel tax-assessment proceedings.

Judicial reservation (Section 120 para. 1 StPO). The public prosecutor drafts a written order with a statement of facts and a statement of grounds for suspicion; the detention and judicial review judge of the regional court (in Austrian practice known by the abbreviation HR judge) authorises it. In practice the judge almost always adopts the prosecutor's reasoning by reference, so defects in the order pass through to the warrant. The authorisation must contain a deadline by which the search must take place (Section 105 para. 1 StPO); on expiry of the deadline, the authorisation lapses by operation of law.

Concretisation of the items sought (Section 119 para. 1 StPO). The items sought must, before the intervention, be specified at least by their nature. For business documents, in the practice of the Vienna Higher Regional Court, descriptions such as “balance sheets, contracts, and account statements relating to project X for the period Y to Z” are sufficient. Catch-all phrases such as “items of evidence” or “evidentially relevant paper documents” are inadmissible. A missing time limitation or an imprecise wording can render the warrant unlawful, because it enables sweeping seizures.

Anyone who has never experienced a search often imagines it differently from how it actually unfolds. The following timeline shows six phases from the authorising warrant to the aftermath, and at which points you, as accused or holder of the house right, can do something concrete without incriminating yourself.

Even if you cannot prevent an authorised house search, you have a number of rights, and how you exercise them co-determines the further course of the proceedings. They are not on a voluntary basis, but you must actively assert them, otherwise they are lost in the heat of the situation.

Right to attend and to a person of trust. Section 121 para. 2 StPO gives you the right to be present at the search and to bring in a person of trust, typically a family member, a business partner, or a confidant from management. Anyone who is themselves a suspect or accused is excluded as a person of trust.

Right to counsel and to reasonable waiting time. You may call a criminal defence lawyer, and the officers must wait a reasonable time for counsel's arrival, half an hour is in any case considered reasonable. Never waive counsel, not “for politeness” or “to speed things up”. If officers suggest you do, that is a critical issue from a defence perspective.

Right to instruction. Before the search is executed, under Section 121 para. 1 StPO you must be informed of the occasion and purpose, the right to attend, the right to a person of trust, and the possibility of a voluntary inspection. This instruction may be omitted only in case of imminent danger. The voluntary inspection is almost never sensible in white-collar proceedings: you usually do not know what is being looked for, and by consenting you waive significant rights.

Right to telephone and to document. You may make phone calls during the search, to a lawyer, tax adviser, supervisor, family. Withdraw for lawyer calls; listening-in by officers is only permissible under the strict conditions of Section 59 para. 2 StPO in case of risk of obfuscation. In private, non-public rooms, as the holder of the house right you may make film recordings for evidentiary purposes, provided you do not publish them (OGH 27.6.2019, 6 Ob 6/19d).

Right to a copy of the warrant and to access to the file. The warrant must be handed to you at once, at the latest within 24 hours (Section 122 para. 3 StPO). Throughout the proceedings you have a right to access to the file (Section 51 StPO), it is the precondition for being able to examine and challenge the authorising decision in the first place. If access is refused, the complaint regarding a violation of rights under Section 106 para. 1 No. 1 StPO is open to you.

What the officers take with them in terms of documents, data carriers, and items is governed by the law on seizure and confiscation. This is where the commercially most serious consequences for business owners lie, and at the same time one of the most important levers for the defence.

Seizure versus confiscation. Seizure (Section 109 No. 1 lit. a, Section 110 StPO) is the provisional establishment of the authority's power of disposal over an item. It is ordered by the public prosecutor and executed by the criminal investigation police, without judicial reservation. If the items are later needed as evidence, the public prosecutor applies for confiscation; the HR judge decides (Section 115 para. 2 StPO). In practice, seizures often occur without the public prosecutor promptly applying for confiscation, you can at any time request a court decision on the release or continuation of the seizure (Section 111 para. 4 StPO).

IT seizure and cloud data. For IT devices and data carriers, Section 110 para. 4 StPO expressly requires that data copies as a milder means are mandatory, the seizure of the hardware itself is subsidiary. In reality, officers nevertheless often take servers, laptops, and mobile phones with them because they “need everything”. This must be countered with the active offer of a forensic image, ideally in the presence of an IT staff member and the defence. The question of whether the seizure of the end device also covers access to externally stored cloud data is contested (Section 111 para. 2 StPO); the defence should examine here whether the warrant expressly covers cloud access and whether the conditions for telecommunications surveillance (Section 134 No. 3, Section 135 para. 3 StPO) would be met.

Passwords and biometrics. As an accused, you do not have to hand over passwords voluntarily, that would breach the privilege against self-incrimination. However, you must tolerate the authority undertaking minor interventions, for example, having your finger placed on a fingerprint scanner by force (Section 93 para. 1 StPO permits minor interventions). Supreme-court case law on biometric forced unlocking is still pending in Austria.

The objection under Section 112 StPO. If defence files, attorney,client correspondence, or other documents protected by professional secrecy are to be seized, the holder of the professional secret can raise an objection. Effect: the documents in question are sealed, usually in envelopes, cardboard boxes, or crates with seals, and deposited with the court. The public prosecutor and the criminal investigation police may not inspect them. Within a deadline set by the court (at least 14 days), the objector designates the protected parts in concrete terms; the HR judge subsequently decides at a seizure hearing whether the documents are taken to the file or released.

Who is entitled to object? Under current Supreme Court case law, only the holder of the professional secret, that is, the lawyer, notary, tax adviser, doctor, psychotherapist. The accused as client, under current case law, has no standing to object, although this is heavily criticised in the literature. From a defence-strategic perspective this means: defence files must be kept with the defence counsel or lawyer, not with the accused. To formulate the objection it suffices to say: “Invoking the legally recognised right of confidentiality, I hereby raise an objection under Section 112 StPO against the seizure of the documents and request that they be sealed and deposited with the court.”

From the legal conditions a five-phase practical guide follows, from preparation long before any search to the aftermath weeks afterwards.

Phase 1, Prevention. Draw up a written house-search policy for the company. Train the staff who will have first contact with officers in an emergency, reception, management, compliance, IT, the external tax adviser. Keep an emergency-number list current with criminal defence, management, compliance, and IT. Contractually oblige external IT service providers to inform you immediately about any house search, Austrian lawyers have been required to do so since 25.9.2020 anyway (Section 40 para. 3 No. 3 RL-BA 2015), and companies should follow suit.

Phase 2, Receiving the officers. Ask the officers to wait until management and counsel have been informed, up to 30 minutes is reasonable. Ask for the authority, the case number, and the officer in charge; note names or service numbers. Copy or scan the search document and forward it to management and counsel. Offer a meeting room, polite and matter-of-fact, no small talk on the substance.

Phase 3, Initial conversation and search. Read the search document calmly with counsel. Discuss with the officer in charge: the purpose, the items sought, the period, and the question whether electronic data can be mirrored instead of taken away. Decline a voluntary inspection in white-collar proceedings as a rule. Stay calm, speak in a matter-of-fact way, accompany the officers. There is no duty to cooperate in criminal proceedings (unlike in cartel law), but unsolicited assistance can speed up the search, clarify case-by-case with counsel. Bring in IT staff and offer data copies instead of hardware seizure (Section 110 para. 4 StPO). Phone calls with counsel and tax adviser are permitted, withdraw for them. Avoid informal answers to the officers' questions, a brief reference to management is sufficient. Formal interviews only in the presence of counsel; insist on a formal summons. Do not destroy or hide anything, that would be an offence in itself. Raise an objection under Section 112 StPO against the seizure of defence files, client correspondence, and other documents protected by professional secrecy, through the lawyer present.

Phase 4, Minutes. Check the record carefully before signing. Have your own comments included or attached, for example, on the duration, the instruction, the objection, and the sealing of documents protected by professional secrecy. Conduct a closing conversation with the officers. Immediately afterwards, prepare your own memory record, times, number of officers, duration, anything unusual, photographs of the rooms.

Phase 5, Aftermath. Discuss the appeals with counsel: appeal under Section 87 StPO (deadline 14 days), complaint under Section 106 StPO (deadline 6 weeks), application for release of the seizure under Section 111 para. 4 StPO, complaint against an act of direct administrative coercion under Article 130 para. 1 No. 2 B-VG. Clarify the status as accused, including that of the legal entity under the VbVG. Set the defence strategy. For listed companies: register confidentiality under Section 3 No. 4 of the Issuers' Compliance Regulation, and consider an ad-hoc disclosure. Do not break any seals applied by the authorities, also inform the cleaning staff. Prepare for press inquiries (“We are cooperating with the authority and are reviewing the matter internally. We cannot comment on the substance at this time.”). Affected persons not accused are entitled to reasonable reimbursement of costs for material and labour (Section 111 para. 3 StPO), banks in practice charge 50 to 58.33 euros per hour plus VAT.

If a house search is found unlawful in appeal proceedings, the consequences are nuanced. Unlike what is often assumed in the German-language debate, the Austrian Code of Criminal Procedure does not recognise a general prohibition on using unlawfully obtained evidence. From a defence perspective, the key provisions are Section 157 para. 2 StPO and Section 281 para. 1 Nos. 2 and 3 StPO, not Section 140 StPO, which is repeatedly cited incorrectly in this debate.

What happens to the evidence? According to Supreme Court case law, items obtained through an unlawful search are withdrawn from the investigation insofar as a use to the disadvantage of the accused is excluded (Section 107 para. 4 StPO applied by analogy). The court hearing the case decides on actual use at trial; the accused can object to its use there, where appropriate by way of a plea of nullity under Section 281 para. 1 No. 3 StPO. A “fruit of the poisonous tree” doctrine, that is, the inadmissibility also of indirectly derived evidence, is not recognised by Austrian doctrine and case law.

Defence files and Section 157 para. 2 StPO. The position is different for defence files and other documents protected by professional secrecy. Under Section 157 para. 2 StPO, on pain of nullity these may not be used either as evidence or for further investigation. On application by the accused, they are even to be destroyed ex officio under Section 139 para. 4 StPO. Here lies the exception to the principle “no general prohibition on use”, and at the same time the reason why the objection under Section 112 StPO is so important.

State liability and damages. Damage at the search site, break-ins, destruction of furnishings, devastation, can give rise to claims under the Austrian State Liability Act (AHG; Sections 1, 2 AHG). In practice, however, enforcement is laborious: the Supreme Court and the literature alike note that compensation through state liability in this area is “extremely difficult to enforce”. Practice-relevant examples of excesses that can lead to state liability are found in Vienna Higher Regional Court 7.12.2018, 22 Bs 278/18w (break-ins, devastation).

Criminal liability of the officers. In the case of gross legal violations, criminal liability of the acting officers comes into consideration, for example, abuse of office under Section 302 StGB. In practice this is the exception, but in individual cases, for example in the case of an intentionally unlawful press release (cf. Vienna Higher Regional Court 13.2.2012, 18 Bs 161/11z), it can become relevant.