A house search usually comes without warning and early in the morning – and it interferes deeply with fundamental rights. Those who know their rights and involve a criminal defence lawyer quickly can significantly influence how the search unfolds and protect confidential material. This article explains when a house search is permissible under the Austrian Code of Criminal Procedure (StPO), how it proceeds, what rights you have and what you should do immediately. Paulitsch Law assists individuals, companies and their officers in Vienna and throughout Austria at every stage of a search.
Key Takeaways
- Judicial authorisation: A house search generally requires an order by the public prosecutor and authorisation by the court (Sections 119, 120 StPO). Only in cases of imminent danger (Gefahr im Verzug) may a search exceptionally take place without prior authorisation.
- Strict requirements: A specific suspicion, proportionality and a concrete description of the items sought are required (Sections 5, 119 StPO). Speculative ‘fishing’ searches are not permitted.
- Your rights: You may be present, involve a defence lawyer and a person of trust, are entitled to be heard, and may hand over the items sought voluntarily (Section 121 StPO).
- Seizure and objection: Items found are seized. You may object to the seizure of protected documents, which must then be sealed (Section 112 StPO).
- New since 1 January 2025: evaluating phone, laptop and cloud data is a seizure of data carriers and data and – unlike before – requires court authorisation (Sections 109(2a), 115f StPO).
- Remedies: An appeal (Section 87 StPO), an objection for infringement of rights (Section 106 StPO) and a measure complaint are available against the search.
What is a house search – and what may be searched?
The law refers to the search of places and objects (Section 117(2) StPO). It covers homes and other places protected by domestic authority together with the objects inside them, as well as non-public premises, rooms, vehicles and containers. In practice, private homes, business premises, offices, warehouses, vehicles, bags, safes, IT systems and mobile phones are searched. A search already exists once the authority enters a room and deliberately looks for what is sought – regardless of whether anything is touched or opened.
When is a house search permissible? The requirements
Because a search interferes with the constitutionally protected right to the home, the StPO ties it to strict conditions. A specific suspicion is required: concrete facts must make it plausible that an offence has been committed and that the items sought – at least described by category – are located at the place to be searched. The search must be proportionate (Section 5 StPO) and must not be replaceable by a less intrusive means such as a request for information or voluntary surrender (subsidiarity). The judicial reservation applies: the public prosecutor orders the search and the Regional Court authorises it by a time-limited decision (Sections 119, 120 StPO). Only in cases of imminent danger may a search exceptionally take place without prior authorisation, which must then be obtained subsequently.
How does a house search proceed?
Investigators from the criminal police or the Office for the Prevention of Fraud usually arrive in the morning, frequently at several addresses simultaneously to exploit the element of surprise. At the outset, the search warrant is presented and the occupant is informed of the reason, purpose and their rights. The search must be strictly limited to the scope stated in the warrant; a duty of consideration applies, meaning no more disruption than unavoidable may be caused (Section 121(3) StPO). Typically five to ten officers act at one location, often with specially trained IT staff. At the end, the person concerned must be given confirmation of the search and its outcome, together with the order and authorisation, immediately or at the latest within 24 hours (Section 122(3) StPO).
What rights do those affected have?
Any person whose rights are directly affected by the measure is concerned – regardless of whether they are an accused. You are entitled to be heard and to be informed of the reason and purpose (Section 6(2) StPO). You may be present during the search and involve a person of trust as well as a defence lawyer (Section 121(2) StPO). The authority must wait a reasonable time for a named lawyer – otherwise its conduct may be disproportionate and unlawful. Before execution, you must be given the opportunity to hand over the items sought voluntarily (Section 121(1) StPO). Whether voluntary surrender is advisable should always be assessed by a lawyer first, as it is often unclear in white-collar cases which documents are actually being sought.
What to do during a house search – the key rules of conduct
What matters is composure, a factual demeanour and immediate contact with a criminal defence lawyer. The following ground rules have proven effective: stay calm and do not obstruct the measure; do not destroy or alter any documents or data; accept the warrant and check the addressee, scope, date and deadline (copy it if possible); notify your lawyer at once and ask the officers to wait for their arrival or call; make no spontaneous statements on the substance and avoid informal conversations; accompany each officer where possible and document the entire process (which rooms, which questions, which documents, which search terms). This keeps the situation controlled and legally sound.
May phones, computers and data be seized?
Yes – in white-collar cases in particular, IT devices and data are the focus, as they often yield more than paper files. A data carrier (laptop, PC, server, mobile phone, USB stick, external drive) may still be secured – but a separate, stricter seizure regime has applied to access to the stored data itself since 1 January 2025 (see below). The principle of subsidiarity applies: if a copy of the data serves the evidentiary purpose, it is the less intrusive means compared with removing the original hardware. Those affected should therefore insist that the required data be copied (mirrored) on site instead of taking devices away – otherwise business operations may come to a standstill.
New legal framework since 1 January 2025: seizure (Beschlagnahme) of data carriers and data (Sections 109(2a), 115f et seq StPO)
Access to phones, laptops and other data carriers has been fundamentally re-regulated. After the Constitutional Court struck down the previous rules as a disproportionate interference with the fundamental right to data protection and respect for private and family life, a separate and significantly stricter regime has applied since 1 January 2025 (StPRÄG 2024, Federal Law Gazette I 157/2024). The key message: where data carriers and data are to be secured for the purpose of evaluating the data, this is no longer a mere securing (Sicherstellung) but a seizure of data carriers and data (Beschlagnahme) – and it requires both an order by the public prosecutor and authorisation by the court (Sections 109(2a), 115f StPO). The evaluation of data is therefore always subject to judicial control. (The frequently cited Sections 115a to 115e StPO, by contrast, concern the realisation of assets, not the seizure of data.) The key points:
- Judicial authorisation: an order by the public prosecutor alone is no longer sufficient; accessing data for evaluation is not permitted without court authorisation.
- Precise description: the order and authorisation must state the proceedings, the accused, the offence and the necessity and proportionality, inform the person concerned of their rights, and define the categories and content of the data and the relevant time period (Section 115f(3) StPO). Blanket access to all data is not permitted.
- Two-stage procedure and deletion of data: the evaluation takes place in two steps – the technical preparation of the data (Section 115h StPO) and the subsequent substantive evaluation (Section 115i StPO). Personality rights must be respected; data not relevant to the proceedings or not usable as evidence must be destroyed on request or of the court’s own motion.
- Less intrusive means first: if the evidentiary purpose can be met by copies or recordings, the seizure is not permitted and must be lifted on request of the person concerned.
- Cloud and external data: access to externally stored data reachable from the seized device is likewise permitted only under these conditions (Section 109(2a)(b) StPO).
- Cooperation: as a rule, access to the data must be granted (Section 115g(1) StPO); however, an accused person cannot be forced to actively incriminate themselves, and professionals bound by secrecy remain protected.
- Objection and professional secrecy: an objection may be raised against the seizure in line with Section 112 StPO (Section 115g(2) StPO); protected parts of the evaluation result are designated and reviewed by the court.
- Legal protection officer: the Rechtsschutzbeauftragter reviews and controls the seizure; where it targets professionals bound by secrecy (e.g. lawyers or doctors), his authorisation is required and permitted only on particularly serious grounds (Section 115l StPO).
- Remedies: confirmation within 24 hours, an application for a court decision on lifting or continuing the measure (Section 115f(8) StPO), plus an objection (Section 106 StPO) and an appeal (Section 87 StPO). If there was no initial suspicion, all results obtained must be destroyed (Section 89(4) StPO).
For those affected, this means significantly improved protection – and it makes early legal support all the more important, in order to keep data access within lawful limits, protect confidential and privileged data and use the available remedies in time.
Seizure, confiscation and objection – how to protect confidential documents
In practice, the search order is always combined with a seizure order (Section 109 StPO). A seizure may later become a confiscation by court decision (Section 115 StPO). If the seized documents or data contain information subject to a legally recognised duty of confidentiality – such as correspondence with a defence lawyer or material held by lawyers, tax advisers, doctors or other professionals bound by secrecy – an objection under Section 112 StPO may be raised. The documents are then sealed and may not be inspected by the prosecution or the police; only the court decides on admissibility in the review procedure. Where a search is carried out at the office or home of a lawyer, a representative of the Bar Association must be involved (Section 121(2) StPO).
House search at a company (dawn raid) – what matters?
A company may be affected even where it is not itself under investigation but is considered, for example, a business partner or a source of information. A prepared approach is decisive here: a crisis team with clear responsibilities, a central point of contact, 1:1 accompaniment of each investigator by a ‘shadow’ keeping complete records, and a controlled IT review by an IT specialist. Cooperation is correct but strictly within the scope of the warrant; measures beyond it are not accepted and are formally objected to. No full copying of entire data sets should be permitted, and a second copy of all documents handed over should always be retained. External communication is handled centrally; staff are informed briefly and consistently. A house-search guideline prepared in advance pays off in an emergency.
What remedies are available against a house search?
An appeal may be lodged against the court’s authorisation decision (Section 87 StPO); if the search proves unlawful, evidence obtained may be unusable. An objection for infringement of rights is available against the seizure and the officers’ conduct (Section 106 StPO), and a measure complaint against direct coercion (Article 130 B-VG). Non-accused persons are also entitled to reimbursement of the costs of the seizure (Section 111(3) StPO). For unlawful interferences, official liability and damages claims may be considered. As most remedies have no suspensive effect, prompt and strategic action is essential.
What mistakes should be avoided?
The most common mistakes include: obstructing the search or destroying documents (which may itself be a criminal offence); premature statements on the substance and informal conversations with officers; voluntary surrender without legal review; failing to raise an objection to protect confidential documents; and missing or incomplete documentation of the process. It is equally risky to submit to formal questioning without legal assistance.
How does Paulitsch Law support you during a house search?
Paulitsch Law is a Vienna-based firm specialising in white-collar criminal law and criminal defence, acting throughout Austria. In the event of a house search we are quickly reachable and support you through every stage: from immediate advice and on-site presence, to reviewing the warrant and its proportionality, safeguarding your rights, raising objections and sealing protected documents, through to appeals, objections and the enforcement of cost reimbursement and damages. For companies we also prepare dawn-raid guidelines and train crisis and reception teams. Author and contact is Dr. Heidemarie Paulitsch, attorney-at-law focusing on criminal law, white-collar criminal law and compliance.
Frequently Asked Questions (FAQ)
Stay calm, do not obstruct the measure, accept the warrant and contact a criminal defence lawyer immediately. Ask the officers to wait for the lawyer’s arrival or call, and make no statements on the substance of the case.
You have the right to involve a defence lawyer at any time – and you should. A lawyer checks legality, safeguards your rights, raises objections and prevents mistakes that are hard to correct later.
You cannot prevent the search itself. However, you may hand over the items sought voluntarily and object to the seizure of protected documents under Section 112 StPO, which are then sealed.
In principle yes. If a copy of the data is sufficient, that is the less intrusive means; insist that the data be copied on site rather than the devices being removed.
Since 1 January 2025, evaluating data on phones, laptops or in the cloud is a seizure of data carriers and data (Sections 109(2a), 115f StPO): it requires court authorisation, must precisely define the data categories and time period, and may not be carried out on a blanket basis; if the purpose can be met by copies, it is not permitted.
As a rule there is a duty to grant access to the data (Section 115g(1) StPO). As an accused, however, you cannot be forced to actively incriminate yourself; whether and how you cooperate should always be clarified with your defence lawyer first.
Central control by a crisis team, 1:1 accompaniment of investigators, a controlled IT review, no full copying of entire data sets and a second copy retained by the company. Cooperation takes place only within the scope of the warrant.
Yes. An appeal (Section 87 StPO), an objection for infringement of rights (Section 106 StPO) and a measure complaint are available; unlawfully obtained evidence may be unusable, and official liability claims may also be possible.
Contact
Have you been affected by a house search or would you like to prepare yourself (or your company) in advance? Paulitsch Law advises you quickly and discreetly. Contact: office@paulitsch.law, +43 1 361 4007, www.paulitsch.law.
Author: Dr. Heidemarie Paulitsch, Attorney-at-Law (Rechtsanwältin), Paulitsch Rechtsanwalts GmbH, Vienna. As at 13.9.2026. This article is intended for general information and does not replace individual legal advice.
