An unexpected ring at the door, strangers in your home, targeted questions, searches, seizures and confiscations – for those affected, a house search usually comes as a surprise, at an unknown time, and often causes uncertainty. For those concerned, it is regularly associated with considerable legal and personal strain. The search of premises and objects constitutes one of the most serious intrusions into privacy. Consequently, a search is only permissible under strict legal conditions.
At this very moment, it is crucial to know your rights and to behave correctly. Not every house search is lawful.
In this article, you will learn when a house search is permissible under the Austrian Code of Criminal Procedure, what rights you have, and how to act correctly in an emergency in order to avoid serious consequences.
When may a house search take place?
In Austria, the right to the inviolability of the home is constitutionally protected. This means that your flat, house or business premises may not, as a rule, be entered or searched without a legal basis. A house search constitutes a search of premises and objects within the meaning of § 117 no. 2 of the Austrian Code of Criminal Procedure (StPO) and is only permitted under clearly defined conditions:
• A specific suspicion must exist
The investigating authorities may only conduct a search if they have concrete indications that a suspect is present on the premises or that you are keeping evidence of a criminal offence or for the purpose of clarifying such an offence. A mere assumption is not sufficient. Pursuant to § 119 (1) StPO, meaningful facts must exist. Provided the statutory requirements are met, a house search may be carried out not only in respect of suspects, but also in respect of other persons. In principle, any criminal offence may give rise to a house search (for example fraud, breach of trust, narcotics offences, robbery, theft – but also allegations under the Weapons Act). An important limit is, first and foremost, proportionality.
• A judicial order is required
As a rule, a search may only be carried out on the basis of a court order or a court-approved authorisation. The order must be set out in writing, include reasons, and clearly specify which rooms are affected and which evidence or objects are being sought. House searches are also subject to the formal requirements of § 120 StPO.
• Exception: imminent danger (Gefahr im Verzug)
Only where there is no time to obtain judicial authorisation – for example because evidence might otherwise disappear – may the authorities act immediately and carry out the house search due to imminent danger. Even in such cases, the measure must be reviewed afterwards and a judicial decision must be obtained.
How should I behave during a house search?
A house search is often hectic and emotionally charged. In practice, house searches are frequently carried out at the edges of the day (i.e. early in the morning or late in the evening). This alone often overwhelms those affected and can be particularly distressing for the private environment (such as family members). Nevertheless, in this situation it is crucial to keep a cool head, act carefully, and protect your rights. This can prevent serious consequences.
1. Stay calm
Even if the situation is stressful, remain calm. Do not allow yourself to be pressured and avoid making spontaneous statements. Your behaviour at this moment may later become relevant.
2. Ask to see the search warrant
You have the right to inspect the judicial order or the public prosecutor’s authorisation. It will state why the search is being conducted, what is being sought, and which rooms are affected. The search warrant must indicate the suspicion of an offence and the purpose of the house search in accordance with § 119 StPO.
3. Call your solicitor immediately
Do not hesitate to seek legal assistance. Your solicitor can be present and ensure that the house search is conducted properly. Ask the investigating authorities to give you the opportunity to contact your solicitor and to wait with the search until they arrive.
4. No obligation to cooperate
You are not obliged to cooperate in the search, to hand over items, or to answer questions. If electronic data carriers (mobile phone, laptop, etc.) are seized, you are not required to disclose access codes. In general, you have the right to remain silent. Make use of this right until you have received legal advice. Even your (informal) statements may be recorded in an official note.
5. Document the course of the house search
Accompany the officers as far as permitted and record important information. Note down names, the time of the house search, and the measures taken.
If the police seize and confiscate items, write down exactly what has been taken. These notes may be helpful later. In addition, you should be provided with a record of the items seized or confiscated.
After the search – what you should do
As part of the house search, you will receive the court-approved search authorisation (search warrant) as well as a (seizure and confiscation) record. This sets out what exactly was searched and which items were seized or confiscated. Read these documents carefully and discuss them with your solicitor.
Together, you can in particular examine:
Was the house search lawful under § 119 StPO?
Were the seizures and confiscations permissible?
Were your rights disregarded?
Is it sensible to lodge a complaint or an objection?
A house search is often only the beginning of an investigation. Moreover, an important course is already set here for the outcome of the criminal proceedings. Please note that legal remedies against searches, seizures and confiscations are subject to statutory deadlines (14 days or six weeks), which is why swift action is required.
House search? Secure immediate legal assistance now!
A house search can have serious consequences – for your private life, your business, and your professional future. Searches of premises and objects under § 119 StPO constitute a particularly intense intrusion into privacy.
If a house search has taken place at your premises, or if you fear one may occur, act immediately. The earlier you obtain legal support, the better your rights can be protected and mistakes prevented.
If you are affected by a house search or are uncertain how to assess the measure legally, early advice from an experienced criminal defence lawyer at MPW-Rechtsanwälte is of decisive importance.
We carefully review the lawfulness of the search and consistently represent your interests vis-à-vis the investigating authorities and in the further criminal proceedings.
Contact usFrequently asked questions on house search
The police may only carry out a house search if there are specific facts giving rise to suspicion and if the measure is lawful and proportionate. As a rule, a judicial warrant is required; only in cases of imminent danger may the police act immediately by way of exception.
The police may come to your home if they are seeking to locate a suspect or to find evidence of a criminal offence and there is a legal basis for doing so. This typically occurs in the context of a criminal investigation and often comes as a surprise, frequently early in the morning or late in the evening.
In principle, a house search may be ordered for any criminal offence, provided the statutory requirements are met and the search is proportionate. In practice, this often concerns offences such as fraud, breach of trust, drug-related offences, robbery, theft, or allegations under firearms legislation.
A house search is justified if there are concrete indications that evidence or a suspect may be found on the premises. Mere suspicion is not sufficient; the authorities must be able to clearly explain both the purpose of the search and the underlying suspicion.
You should contact a solicitor immediately as soon as a house search begins, or even if you anticipate one. The earlier you obtain legal advice and the less you say without counsel, the better your rights are protected.
You should not hastily agree to a voluntary search and should always discuss this with your solicitor beforehand. Consent generally cannot be withdrawn later and often leads to avoidable disadvantages.
Together with your solicitor, you should examine whether the house search was lawful and whether any seizures or confiscations were permissible. You should also clarify whether your rights were violated and whether lodging an objection or appeal is advisable.
You are not obliged to cooperate. You do not have to actively hand over items or answer questions. You are also not required to disclose access codes or passwords for your mobile phone or laptop and should only consider doing so after receiving legal advice.
