When the police are at your door: Why this guide matters
A house search is one of the most intrusive measures in criminal proceedings. Whether in white-collar criminal law, fiscal criminal law or general criminal law – for example in cases of tax evasion, fraud, breach of trust, corruption or money laundering – the same applies: when investigators knock at the door, every minute counts. Those who know their rights and react correctly can make all the difference in this exceptional situation.
This article explains the legal basis of a house search in Austria, shows you step by step how you should behave and offers practical tips from experienced criminal defense lawyers.
What is a house search?
A house search is the search of a home or of any other place protected by the right to the inviolability of the home, and of the objects located there (Section 117(2)(b) of the Austrian Code of Criminal Procedure, StPO). Its purpose is to secure evidence or to apprehend suspects in criminal proceedings.
Under Austrian law, a house search is a coercive measure strictly bound by statutory requirements. It is a serious interference with the constitutionally protected right to the inviolability of the home and is therefore subject to particular requirements as to how it is ordered, authorized and carried out.
What is the legal basis of a house search in Austria?
The relevant provisions are found in Sections 117ff StPO. In fiscal criminal proceedings conducted by the administrative authorities, Section 93 of the Fiscal Criminal Code (FinStrG) applies.
Substantive requirements under Section 119(1) StPO: A house search is only permitted if specific facts give reason to assume that a suspect is hiding at the place to be searched, or that objects or traces are located there which are to be secured or analyzed. Mere assumptions or a general suspicion are not sufficient
Order and judicial authorization (Section 120 StPO): House searches are ordered by the public prosecutor’s office and, as a rule, require judicial authorization (Section 120(1) StPO). This principle of judicial oversight is intended to ensure that a judge reviews the proportionality and lawfulness of the measure in advance. In fiscal criminal proceedings, a house search requires a reasoned written order from the chair of the adjudicating panel (Spruchsenat). At the start of the house search, a copy of the order must be handed to the person concerned, if present (Section 93(1) FinStrG).
Exception: exigent circumstances: In exigent circumstances (Gefahr im Verzug), the criminal police may provisionally carry out a search even without an order from the public prosecutor’s office and without judicial authorization. In this case, subsequent judicial review is provided for under Section 122 StPO. In fiscal criminal proceedings, an oral order is initially permitted if, owing to exigent circumstances, there was no time to wait for the written order to be delivered; the written copy must be served within 24 hours. If, owing to exigent circumstances, it is not possible to obtain either a written or an oral order, a house search in fiscal criminal proceedings may, by way of exception, be carried out without an order under Section 93(4) FinStrG.
Principle of proportionality (Section 5 StPO): Every house search must be proportionate. This means that the interference with the right to the inviolability of the home may only go as far as is actually necessary to fulfil the purpose – that is, to secure evidence or to apprehend a person.
Why is a house search being carried out at my home – even if I am not a suspect?
The search does not depend on whether the occupier of the premises is a suspect. The only decisive factor is objectified grounds for suspicion relating to the place and the objects believed to be there (Section 119(1) StPO). A house search may therefore also take place at the premises of third parties – for example business partners, family members or companies – if relevant evidence is believed to be there.
How should I behave during a house search?
How you behave during a house search can be decisive for the further course of the proceedings. You should observe the following basic rules:
Stay calm: Even if the situation is stressful, remain calm and matter-of-fact. Although a lack of cooperation during a house search is not in itself a criminal offense, bear in mind that resisting state authority certainly is and could weaken your position.
Ask to see the search order: Ask for the search order to be shown to you and read it carefully. Check who the measure is directed against, which premises are affected and which objects are being searched for.
Contact a lawyer immediately: Call a specialized criminal defense lawyer right away. This is your right. An experienced lawyer for house searches can give you initial advice by phone and – where possible – come to the place of the search.
Do not make any statements: Do not make any statement about the matter. As a suspect, you have the right to remain silent. Any careless remark may be used against you later in the proceedings.
Exercising Your Right to Be Present: You have the right to be present during the search (Section 121(2) of the Code of Criminal Procedure). You may also have a person you trust—in particular, a lawyer —present.
Practical Tip for an Office Search: How About a Cup of Coffee to Start? A charming but effective tip from real-world experience: Offer the officers a cup of coffee. This will buy you valuable minutes to contact your lawyer—and, as a bonus, help create a more businesslike atmosphere.
What are my rights and obligations during a home search?
Your Responsibilities:
- You must allow the search to take place.
- You are required to open rooms and containers (e.g., safes).
- As a general rule, you are not required to disclose passwords for computers or cell phones—however, refusing to do so may, in certain cases, result in the devices being seized.
Your Rights:
- Consulting a laywer: Immediately consult a criminal defense attorney who specializes in this area and discuss the next steps with him or her.
- Consider voluntary disclosure: Consult with your attorney to determine whether it makes sense to voluntarily disclose certain documents—this may limit the scope of the search.
- Objection under Section 112 of the Code of Criminal Procedure: In cases involving professional secrecy (e.g., correspondence with attorneys or tax advisors), you may file a motion to have the documents sealed. This will prevent investigators from accessing the documents until a court ruling is issued.
- Request a Record: Insist on a complete record of all seized items.
What happens after a home search?
After a home search, you have several options available to protect your rights and take an active role in the proceedings that follow:
Access to Case Files (Section 51 of the Code of Criminal Procedure): As a defendant, you have the right to access the case files. Exercise this right promptly so that you are aware of the status of the investigation and the evidence against you.
Return of Seized Items: If items are no longer needed for the proceedings, you are entitled to have them returned. Your attorney can actively request this.
Objection on the Grounds of a Violation of Rights (Section 106 of the Code of Criminal Procedure): If your rights were violated during the search of your home—for example, due to disproportionate conduct or the lack of a court order—you may file an objection to the actions of the criminal investigation department or the public prosecutor’s office.
Appeal Against Court Orders (Sections 87f of the Code of Criminal Procedure): You may file an appeal with the Higher Regional Court (OLG) as the appellate court against the court’s authorization of the search itself.
Special Provisions in Criminal Tax Proceedings: In criminal tax proceedings, the provisions of § 93 of the Criminal Tax Code (FinStrG) apply to appeals. Here, too, prompt action by an attorney is crucial.
When is a home search unlawful?
A search of a home may be unlawful if essential requirements are not met. Common sources of error include:
- A search warrant that is missing or insufficiently substantiated
- No court authorization and no imminent danger
- Violation of the principle of proportionality (Section 5 of the Code of Criminal Procedure)
- Search beyond the scope specified in the warrant
- Violation of the right to be present or to have counsel present
If the search of the home was conducted unlawfully, the evidence obtained may, under certain circumstances, be excluded from consideration. A specialized criminal defense attorney will review each individual case and pursue the appropriate legal remedies.
Recent Developments: 2024 Criminal Procedure Reform Act
In its decision G 352/2021, the Constitutional Court struck down Sections 110(1)(1), (4), and 111(2) of the Code of Criminal Procedure (StPO), as then in force, as unconstitutional. Consequently, new provisions (Sections 115f–115l of the Code of Criminal Procedure) were introduced governing the seizure of data storage media and data (including, among other things, cell phones), which impose stricter requirements, such as
- Court approval required
- A rigorous review of necessity and proportionality, and
- Limitation by data category, content, and time period.
These changes significantly strengthen the rights of those affected. Your criminal defense attorney will take these recent developments into account when formulating a defense strategy.
Conclusion: Acting quickly makes all the difference
A home search is an exceptional situation in which knowledge and composure are crucial. Know your rights, stay calm, and contact an experienced criminal defense attorney immediately. The sooner you have legal representation, the better your interests can be protected—from the search itself through access to case files to objections and appeals.
Contact
The Team Kindl law firm specializes in all areas of criminal law—including, in particular, white-collar crime and financial crime. We’ll be by your side from the very beginning—providing expert, discreet guidance and the experience that makes all the difference in this situation. Contact us now.
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