Seizure and confiscation in Austrian criminal proceedings: section 110 StPO, conditions and return

Seizure under section 110 StPO is a provisional measure by the criminal police. It serves to secure evidence or to secure the availability of items relevant for forfeiture or confiscation of instruments. The trigger may be a house search, but it can also occur without a search where the defendant has the item on their person.

A receipt listing the items must be issued for the seizure. This receipt is the basis for any later application for return and for any challenge. From a legal perspective a careful examination is worthwhile already in the first hour after the measure.

Seizure is a provisional measure. If the binding is to be maintained beyond the duration ordered by the prosecutor, a judicial confiscation is required.

Judicial confiscation under section 115 StPO secures assets for forfeiture, extended forfeiture, confiscation of instruments or a fine. It requires a court order which specifically identifies the items concerned and the securing purpose.

The order can be challenged by complaint to the higher regional court. From a legal perspective the specificity of the items, the scope as against third parties and the proportionality of the measure deserve particular scrutiny.

If the securing purpose ceases or the amount to be secured is deposited elsewhere, lifting must be requested. Continuous review prevents assets from being tied up longer than necessary.

As soon as seized or confiscated items are no longer needed for the proceedings, they must be returned to the person entitled. The return is a legal obligation, not a matter of discretion. In practice it often stalls if no application is made.

The objection on grounds of breach of rights under section 106 StPO is the central remedy against unlawful measures by the criminal police or the prosecutor. From a legal perspective it can be aimed both at the seizure itself and at a failure to return.

A careful reasoning of the application significantly increases the chances of success. It makes clear the lack of procedural relevance and identifies concretely which measure is being challenged.

Data and data carriers are a chapter of their own in the law of seizure. They often concern large volumes of data containing confidential or professionally protected content. From a legal perspective the separation of relevant and irrelevant data is a central point.

Where professional secrecy applies, in particular for lawyers and doctors, special protective mechanisms exist. Sealing and controlled analysis protect the core sphere against unauthorised access. These options must be requested at an early stage.

If a data analysis is carried out without sufficient basis, an exclusionary rule may apply. A challenge at an early stage secures the position of the defence for the entire further course of the proceedings.