A house search is one of the most intrusive investigative measures under the Austrian Code of Criminal Procedure (StPO). Those affected are often caught completely unprepared – whether in their private home, business premises or professional offices. In white collar crime law, house searches are of particular importance, as they are almost always carried out in conjunction with the seizure or confiscation of evidence.
Legal Basis and Requirements
A house search is permissible if there is a substantiated suspicion that:
- a specific person who is to be arrested is located on the premises, or
- evidence or assets to be secured or seized are located there.
This means that a house search does not necessarily have to take place at the premises of the accused; it may also be conducted at the premises of third parties who are not themselves accused.
The Search Warrant
- Judicial authorisation: As a rule, a house search requires an order by the public prosecutor, which must be approved by a court.
- Exception – imminent danger: In cases of imminent danger (Gefahr im Verzug), the criminal police may conduct a search on their own initiative. In such cases, the public prosecutor must immediately apply for subsequent judicial approval.
- Content requirements: The warrant must, among other things, specify the alleged offence and the exact premises to be searched. Vague, blanket or insufficiently reasoned warrants are unlawful.
Furthermore, the warrant must set out the facts demonstrating that the search is necessary and proportionate for the investigation and that the statutory requirements are met. The order must also contain information on the available legal remedies.
Procedure and Rights of the Persons Affected
Service of the warrant: Before the search begins, the judicially approved warrant must be handed over to the person concerned.
Right to be present: Affected persons have the right to be present during the search and to involve a trusted person, such as a lawyer.
Record of the search: At the end of the measure, or within 24 hours thereafter, a record of the results of the search and the items seized must be handed over to the person concerned.
Recommended Conduct
A house search is an exceptional and stressful situation. Strategic and prudent behaviour is crucial:
Remain calm and contact a lawyer: Immediate contact with defence counsel is essential. A lawyer can provide immediate assistance, in particular with regard to seizures.
Do not make statements on the matter: As an accused person, you are not obliged to comment on the allegations or to give a formal statement. Do not make any statements before consulting your lawyer.
No obligation to cooperate as an accused: If you are an accused person, you are not required to actively assist with the search. In particular, you are not obliged to disclose passwords or similar access data to the authorities.
Limitation of the search: Authorities may only search the premises explicitly listed in the approved warrant. You are not obliged to grant access beyond this scope.
Objection in case of circumvention of professional secrecy: Persons bound by professional secrecy (such as lawyers or tax advisors) are subject to statutory confidentiality obligations and have the right to refuse to give evidence. This right may not be circumvented by seizing or confiscating documents protected by professional secrecy during a search. If such a risk exists, those affected may raise an objection against the seizure or confiscation.
Specific Aspects of White-Collar Crime Proceedings
In white collar crime cases, house searches aimed at securing evidence have a particular significance:
House searches are typically conducted to seize business records, accounting data and/or electronic communications, which are usually of central importance in economic criminal proceedings.
For this reason, it is essential to carefully review the legality of the measure. If, in the course of a legal remedy, a house search is found to have been unlawful, the evidence obtained may not be used in the subsequent proceedings – which can be decisive for the outcome of the case.
Legal Remedies Against a House Search
Affected persons may file a complaint against the judicial search warrant with the Higher Regional Court (Oberlandesgericht) within 14 days.
Decisive for the assessment of legality is solely the situation at the time the warrant was issued. If the statutory requirements were not met, the house search is not subsequently justified merely because incriminating evidence was in fact found and seized during the search.
Conclusion
A house search is one of the central investigative measures under the Austrian Code of Criminal Procedure and constitutes a serious interference with the rights of those affected. It is permissible only under strict conditions and subject to judicial control. For those affected, the key principles are:
👉 Remain silent – call a lawyer – review the measure.
Anyone who acts calmly and prudently in this stressful situation not only safeguards their rights, but also lays the foundation for a successful defence strategy going forward.
Markus Weisser
Attorney at law
Mag. Markus Weisser has been practicing criminal law for several years. His work covers a broad range of focus areas, and he also regularly gives lectures on various legal topics.
FAQ
When do I have to allow the police to enter my home or business premises?
Die Polizei darf nur im Zuge einer Hausdurchsuchung die Wohnung betreten, welche vom Gericht bewilligt worden sein muss. Im Falle einer „freiwilligen Nachschau” – also, wenn Polizeibeamte fragen, ob sie „eintreten und nachschauen” dürfen – muss kein Eintritt gewährt werden. Wenn der Betroffene einer freiwilligen Nachschau
zustimmt, liegt keine Hausdurchsuchung vor (welche allenfalls mit einem Rechtsmittel bekämpft werden könnte).
It is therefore crucial to always ask whether the measure in question is a formal house search or merely a request for a voluntary inspection. There is no obligation to consent to a voluntary inspection.
It is therefore crucial to always ask whether the measure in question is a formal house search or merely a request for a voluntary inspection. There is no obligation to consent to a voluntary inspection.
Protection against premature or incriminating statements
In the stressful situation of a search, those affected are often tempted to make spontaneous statements. A lawyer ensures that you consistently exercise your right to remain silent.
Limitation of the interference
Through legal intervention, it can be ensured that the search does not exceed its lawful scope or extend to areas not covered by the warrant.
A lawyer ensures that only permissible items are seized, that a proper seizure inventory is prepared, and that particularly sensitive documents (e.g. defence materials or documents protected by professional secrecy) remain protected.
Challenging unlawful house searches
If a house search is conducted without the statutory requirements being met, a lawyer can effectively assist you in filing a complaint with the Higher Regional Court. If the court declares the search unlawful, the evidence obtained during the search may not be used in the proceedings.
Can a house search take place without my presence?
Yes, a house search may also be conducted in the absence of the person concerned. If you are on holiday or otherwise not at home, a cohabitant or, if no one is present, a neutral witness may be involved.
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