Return a smartphone after discontinuation of Austrian criminal proceedings: sections 114 and 115 StPO, application, data copy and continued retention.
Mag. Christopher Angerer, Rechtsanwalt
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If a smartphone is seized or confiscated in Austrian criminal proceedings and the investigation is later discontinued, its return should be requested actively and in writing. Under section 114(2) StPO, seized items are to be returned as soon as the reason for continued custody ceases to exist. If there is a judicial confiscation, section 115(6) StPO must also be examined.
Return of the device does not answer what happens to forensic copies, analysed data or files placed in the investigation file. This article separates both questions and shows which documents are needed for an application for return and for examining a data copy. It is general information and not advice in an individual case.
Whether discontinuation, judicial confiscation, an open data-copy question or blocked return applies: choose the situation that fits.
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For return, the current securing purpose, any judicial confiscation order and an existing data copy matter. Choose the situation that comes closest.
Provide the notice of discontinuation and the seizure receipt to the defence lawyer. The key question is whether a concrete evidentiary or securing purpose still exists and whether continuation under section 193 StPO has been reserved.
A reasoned application for return under section 114(2) StPO should identify the device precisely and request delivery to the person entitled to control it.
Discontinuation alone does not answer the question of confiscation. The order and its securing purpose must be examined. Under section 115(6) StPO, confiscation must be lifted once its conditions no longer exist.
The affected person can ask the court to decide on the confiscation. The order, the state of the file and whether the smartphone is still required as evidence are decisive.
Return of the smartphone and the handling of copied data are separate questions. Ask for a traceable explanation of whether data was copied, analysed or placed in the investigation file and what scope the measure had.
A data copy can be proposed as a practical solution. Whether it fulfils the securing purpose depends on the case and the technical integrity of the data. Discontinuation alone does not establish automatic deletion.
If the authority does not act or refuses delivery, first establish whether a seizure or confiscation remains in place. For a seizure, section 111(4) StPO provides information about an objection and an application for a judicial decision.
A short submission with the file number, device details, notice of discontinuation and a precise request creates a reviewable basis. The appropriate route depends on which body made the last decision.
A seizure under section 110 StPO and a judicial confiscation under section 115 StPO are different procedural situations. A seizure places an item temporarily into official custody. Confiscation requires a judicial decision and may concern continued preservation of evidence.
Discontinuation under section 190 StPO ends the investigation in its current form. Section 193 StPO nevertheless provides possibilities for later continuation. The application should therefore refer to the concrete reason for continued custody, rather than relying only on the word “discontinued”.
The seizure receipt, any confiscation order, the notice of discontinuation and later notices from the public prosecutor are decisive. If a document is missing, it should be requested or clarified from the file through the defence before the application is submitted.
Under section 190 StPO, the public prosecutor must discontinue the investigation where the act is not punishable by a court, further prosecution is legally impermissible or there is no factual basis for further prosecution. The notice must state the reason for discontinuation under section 194 StPO.
Discontinuation creates an important line of review: for what purpose is the smartphone still being held? If there is no concrete evidentiary purpose and the device is not required for another statutory form of security, this supports the conclusion that the reason for custody has ceased. The authority must assess the device and any copies separately.
Possible continuation under section 193 StPO does not automatically justify retaining a device for an unlimited period. It can explain why individual evidence is still to be secured. That connection must be traceable from the file.
Section 114(2) StPO requires immediate delivery once the reason for continued custody of a seized item has ceased. Delivery is generally made to the person in whose control the item was seized. If that person is obviously not entitled, delivery may be made to the person entitled to it.
The application should identify the smartphone by brand, model, colour, serial number or IMEI where known, together with the file number. Attach the seizure receipt and notice of discontinuation, and state who is to receive the device. The legal core is the disappearance of the specific securing purpose.
Ask for a written decision or at least a traceable explanation if delivery does not take place immediately. If the device is said to be needed to verify an existing copy, a coordinated technical record or controlled copy can be discussed as a practical alternative. This does not replace examination of the statutory conditions.
A smartphone can create different procedural traces. The authority may retain the original device, create a technical copy, analyse individual data or place files in the investigation file. Return of the original therefore says nothing by itself about the further handling of data.
A data copy should be addressed through precise questions: Was an image or another copy created? Which periods, apps or file types were analysed? Which data was taken into the evidence file? Do working copies still exist and what purpose is said to justify them? The answers should be verifiable from the file or an authority notice.
A copy can be offered to avoid retaining the entire smartphone where it reliably fulfils the securing purpose. Whether it is technically and legally sufficient depends on the purpose, evidentiary reliability and protection of third-party or particularly confidential data. It would go too far to say that every forensic copy must automatically be returned or deleted.
Return, disclosure of a data copy and deletion are therefore three different requests. A clear staged formulation is useful: first request return of the device, then ask for information about copies and analysis, and finally seek a separate assessment of continued retention or deletion.
Where a judicial confiscation order exists, a letter to the police will generally not be enough. Under section 115(2) StPO, the court decides without delay on confiscation at the request of the public prosecutor or a person affected by the seizure. The application must identify the order and the device.
Under section 115(6) StPO, confiscation must be lifted once its conditions no longer exist. For a smartphone, explain why it is no longer required as evidence or why the stated securing purpose has ceased. The notice of discontinuation is important, but it does not replace the reasoning in every case.
Even where the public prosecutor lifts confiscation, the actual delivery should be checked. Have the handover, the condition of the device and any reference to retained storage media or copies documented.
A clear application starts with the authority, file number and exact identification of the smartphone. It then sets out the procedural facts: time and place of seizure, notice of discontinuation, any confiscation order and the current custody position.
The legal reasoning should address the specific securing purpose. Explain why the device is no longer required as evidence on the current state of the file and why no other statutory security remains. For the data issue, add that copies and analysis should be identified and assessed separately.
Request delivery to the person entitled to it and a written notice of the outcome. If delivery is refused, keep the reasoning and information about remedies. Section 111(4) StPO refers the affected person to an objection and an application for a judicial decision on lifting or continuing the seizure.
Discontinuation is a strong argument, but it is not an automatic result. The decisive issue remains whether a concrete securing purpose continues and whether the case concerns a seizure or confiscation. Return of the device and the further handling of digital copies must be requested and examined separately.
If the reason for continued custody has ceased, seized items are to be delivered under section 114(2) StPO. Whether that applies depends on the securing purpose, any confiscation and the person entitled to receive the device.
Discontinuation and confiscation must be examined separately. Under section 115(6) StPO, confiscation must be lifted once its conditions no longer exist. A separate application should be prepared for the competent authority or court.
A copy can be proposed as a practical solution if it reliably fulfils the concrete securing purpose. Discontinuation alone does not create an automatic entitlement to this solution. Scope, integrity and third-party data must be examined.
Return of the device and deletion or continued retention of copies are different questions. First establish which copies and analyses exist and what purpose they serve. A blanket promise of deletion is not possible without reviewing the file and the legal basis.
Keep the application and proof of delivery. Then examine whether an objection for breach of rights or an application for a judicial decision under section 111(4) or section 115 StPO is appropriate. This depends on the specific measure and decision-maker.
Basics of sections 110 and 115 StPO, return and legal protection.
Reasons and consequences of discontinuation under section 190 StPO.
How to classify the allegation and which documents matter.
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