The legal framework of a house search
House searches are usually carried out without prior notice in order to take advantage of the element of surprise and to secure possible evidence before it can be hidden or destroyed. In Austria, the legal basis for house searches is regulated in Sec 119 ff Austrian Code of Criminal Procedure (StPO). A house search may only be carried out if there is a reasonable suspicion that the place to be searched contains evidence, suspicious persons or traces that are relevant to the investigation.
A court-authorized order from the public prosecutor’s office is required to carry out a house search, unless there is imminent danger. The measure must also be proportionate. In particular, there must be no less severe means available to achieve the same result.
Behavior during a house search
- Stay calm: Those affected should remain calm and be courteous to the officers. Agitation and panic can make the situation worse.
- Separation of officials: In the case of companies – for example, in the case of allegations under the commercial criminal law or the corporate criminal law – the officials should first be taken to a separate room (e.g. a conference room) so as not to disrupt the normal course of business and not to cause an unnecessary stir.
- Consult a lawyer: If possible, a lawyer specializing in criminal defense should be contacted immediately by telephone to review the legality of the action and to assist the person during the house search. Officers should be asked to wait until the lawyer arrives before conducting the search, although there is no legal right to do so.
- Coordination of employees: Management and the Compliance Officer should be notified of the search as soon as possible. The IT manager should also be informed to provide technical support and to ensure that no unnecessary data is collected.
- Check the search warrant: Officers are required to produce or hand over the (court-authorized) search warrant upon request. This should be carefully checked to ensure that it meets all formal requirements. In this regard, it is advisable to make photocopies of the warrant and send them immediately to the lawyer involved (if possible, electronically before the lawyer arrives) so that the lawyer can conduct out an initial legal review as quickly as possible.
- No self-incrimination: Accused persons are not required to participate proactively in the search or to incriminate themselves, however, they may not obstruct the search either. Whether passwords and similar information (must) be disclosed depends on the position of the person concerned and should be clarified in advance with a lawyer.
- Documentation of the measures: All actions taken by the officers should be recorded, including the names of the officers, the items seized and the actions taken.
- Limitation of the search: Officers should be advised that they may only search the areas specified in the warrant. Searches in places not covered by the search warrant should not be permitted. This should be pointed out if necessary.
- Special protection of attorney-client correspondence: Correspondence between lawyer and client is protected and may not be secured/seized. If there is a danger that this will be violated, this should be pointed out as early as possible. In this respect, there is a right of objection (Sec 112 Austrian Code of Criminal Procedure) against the seizure.
Preparation for a house search
A house search can have significant consequences not only for individuals, but also for companies, associations and other organizations. Preparation and the proper behavior during a house search can help to minimize negative consequences:
- Compliance measures to prevent criminal activity can help prevent an unpleasant house search in the first place. However, even companies not involved in the allegations may also be subject to a house search, so it is always advisable to prepare for the worst-case scenario.
- Written instructions for action in the event of a house search should be drawn up and made available to all relevant persons. These instructions should contain clear guidelines on how employees should behave, who they should contact in the event of a house search and what rights they have.
- Contact number of a lawyer: A lawyer should be available at all times in order to be able to intervene quickly in the event of a house search.
- Raising employee awareness and training: It is important that employees are aware of their rights and obligations in the event of a house search. Regular employee training and awareness-raising measures such as workshops can help to ensure that employees react correctly in an emergency and do not make mistakes that could have negative legal consequences.
After the house search
- Request a record: The officers must draw up a seizure log of the house search and hand over a copy to the person concerned. This document is important for any subsequent legal action. Care must be taken to ensure that the record is complete and correct.
- Check legal remedies: If the search was unlawful from the point of view of the person concerned, an objection can be lodged against the public prosecutor’s order due to violation of the law in accordance with Sec 106 of the Austrian Code of Criminal Procedure and an appeal against the court authorization in accordance with Sec 87 of the Austrian Code of Criminal Procedure. Both legal remedies can be combined. An appeal against measures pursuant to Art. 130 para 1 no 2 Austrian Federal Constitutional Act (B-VG) is also possible.
- Plan further action: In many cases, an initial search is followed by further investigative measures. It is therefore important to be prepared for this and to take further precautions if necessary.
