A knock at the door. Officers standing outside with a search warrant (Hausdurchsuchungsbefehl). From one moment to the next, strangers are going through your rooms, your drawers and your cabinets – and your phone, your laptop and your documents are lying on the table. A house search is one of the most intrusive things the state can do inside your own four walls.

In Austria, a house search is a coercive investigation measure under § 119 of the Code of Criminal Procedure (Strafprozessordnung, StPO), by which law-enforcement authorities search a dwelling, a house or business premises in order to secure objects that matter for criminal proceedings. It is a serious interference with the fundamental right to respect for the home under Article 8 of the European Convention on Human Rights (ECHR). But not every house search is lawful – and there are clear rules on when and how the police may enter.

On this page I explain, as a criminal defense lawyer in Vienna, when the police may search your home, what your rights are during the search, how a formal house search differs from a „voluntary look“, and how an unlawful search can be challenged after the fact.

What is a house search? (§ 119 StPO)

A house search is the search of a dwelling, a house or business premises carried out by the law-enforcement authorities. This investigation measure is governed by § 119 StPO. The authorities order a house search above all where there is a suspicion that persons or objects that matter for criminal proceedings are located inside the premises.

During a house search, the police may examine the entire premises – all rooms, drawers and cabinets. The purpose is to secure the relevant objects: stolen goods, for example, but also instruments of the offence such as weapons, computers or mobile phones. What may actually be taken away, however, is limited: the police may only seize evidence that is connected with the investigation.

When may the police search? Order & judicial authorisation (§ 120 StPO)

As a rule, a house search in Austria is only carried out where a public prosecutor has ordered it on the basis of a judicial authorisation (§ 120 StPO). The police may conduct a search only where there is a concrete suspicion either that a person who has committed an offence is inside the premises, or that evidence of an offence can be found there. A house search is a heavy interference with fundamental rights and is therefore only admissible where all the requirements are met.

The accused must be served with the order (Anordnung) and the authorisation decision (Bewilligungsbeschluss) within 24 hours. This is important: you are entitled to see the document on which the search is based, and it must reach you in written form within this period.

Exigent circumstances: a search without prior authorisation

There is an exception to the requirement of a judicial authorisation. Where there is exigent circumstances (Gefahr im Verzug) – that is, an immediate need to act, because otherwise there is a risk that evidence can no longer be secured – two shortcuts are possible. Either an oral order is issued (which must likewise be put in writing and served within 24 hours), or the police carry out the house search on their own initiative.

Where the police search on their own, that is not the end of the judicial control – it is only postponed. The criminal police (Kriminalpolizei) must report the search to the public prosecutor as soon as possible (§ 122 para 1 StPO), and the prosecutor must then obtain a court decision on the admissibility of the search after the fact. If that authorisation is refused, the prosecution and the police must restore the legal position that corresponds to the court’s decision – which means that the seized evidence must be returned.

The order must be specific – and the limits of the search

The prosecutor’s order cannot be a blank cheque. It must state which objects are being sought and in what way they are capable of serving as evidence in the criminal proceedings. It need not name the exact object – naturally, that is often not known before the search – but it must at least describe the nature of the object more closely. The prosecutor must also give reasons why the objects sought are believed to be at a particular place: there has to be a recognisable factual connection between the object sought, the place where it is searched for, and its suitability as evidence.

Only the authorised rooms

As a rule, only those rooms may be searched that are authorised and named in the judicial decision. The cellar or the family car, for example, may not be searched if the authorisation decision does not cover them. And an unsuccessful search of the authorised rooms – where no evidence is found – does not give the police any right to look into other rooms without authorisation.

Chance finds

This does not, however, rule out the use of so-called chance finds (Zufallsfunde): if, in the course of a lawful search, evidence of further criminal charges comes to light, it may be found and used as well. That is one reason why the scope of the authorisation deserves close attention.

How a house search unfolds

From the order to the later review, a house search passes through four stages. Each of them offers points where the defense can act – the earlier a lawyer is involved, the more can be done.

House search vs. „voluntary inspection“

This distinction is decisive, and it is one that many people never hear about until it is too late. The police may only enter your home in the course of a house search. Where officers simply ask whether they may „come in and look“, that is not a house search but a voluntary inspection (freiwillige Nachschau) – and no one is legally obliged to permit it. If you let the officers in, you turn a request into consent.

The consequence goes further than the entry itself. The rights granted to you under § 120 ff StPO – the rights you can rely on in a complaint against the search – apply only if you did not voluntarily hand over the sought items and did not consent to a voluntary inspection. In other words: consent does not just open your door, it can also close the door to your later defense. That is why the first thing to do is always to ask whether the measure is a formal house search or a voluntary inspection.

Your rights during a house search

The rights of those affected are anchored in the ECHR and in the Austrian Code of Criminal Procedure (StPO). Under Article 8 ECHR – a guarantee that also has constitutional rank in Austria – everyone has the right to respect for their private and family life, their home and their correspondence. A house search interferes with that private sphere and is therefore only admissible under strict conditions. Within those conditions, the following rights are yours.

Presence, persons of trust and your lawyer

You have the right to be present during the search and to call in a person of trust (§ 121 para 2 StPO) – your defense lawyer can be that person or attend in addition. In practice, the search will generally be delayed for a reasonable time until the person of trust arrives, unless this would jeopardise the purpose of the search. If the owner of the dwelling is not present, an adult co-resident may exercise these rights; and if that too is not possible, two uninvolved, trustworthy persons must be brought in as search witnesses (Durchsuchungszeugen). This may only be dispensed with in cases of Gefahr im Verzug. Where the accused is restricted in the right to be present, the search is carried out unlawfully.

Silence and the ban on self-incrimination

At no point are you required to:

• hand over objects that incriminate you;
• disclose passwords or access codes to computers, mobile phones and the like;
• incriminate yourself in any other way;
• comment on the accusations – you do not have to say anything about them.

Do not resist – but do not co-operate against yourself

You cannot refuse the authorities entry to a lawful search, and you should on no account offer physical resistance: physical resistance against officers during an official act may be treated as resistance to state authority (§ 269 StGB) and carries a penalty of up to three years‘ imprisonment. Staying calm, however, is not the same as co-operating against yourself. During the search you will first be asked to hand over the relevant objects voluntarily; only if you do not comply does the search of the rooms follow. The door may be forced open in the course of a formal search, but only using the least amount of force, and the search as a whole must be conducted considerately and without unnecessary commotion.

Challenging the search: the complaint (Beschwerde)

A judicial authorisation decision can be challenged. The remedy is the complaint (Beschwerde). What matters for the assessment of whether the authorisation was lawful is the point in time at which it was issued – an ex-ante perspective. Circumstances that only arose later, and which might have justified the search in hindsight (for example, that a decisive object was in fact found), cannot retroactively make an otherwise unjustified search lawful.

Two practical points follow from this. First, a complaint against an authorisation has no suspensive effect: the seized objects are not returned to you until the appellate court has decided; until then, they remain in official custody. Second, the review is only worthwhile if it is done properly. In practice, that means studying the case file closely and checking carefully whether all the requirements for the order and the authorisation were met, and whether the search was carried out in a lawful manner. If it turns out that the search had no lawful basis, the seized evidence may be unusable (unverwertbar) in the proceedings. Because everything here has to happen quickly, it is advisable to turn to an experienced criminal defense lawyer without delay.

After the search: the first steps

When the police are searching your home, a great deal is decided in the first hours. The most important steps, in the right order:

1. Ask what this actually is. Is it a formal house search or a „voluntary look“? If it is only a voluntary inspection, you may decline entry. The answer determines all your later rights.
2. Stay calm and do not resist. You cannot refuse entry to a lawful search, and physical resistance can itself be an offence (§ 269 StGB, up to three years). A house search often goes hand in hand with an arrest – all the more reason to keep composed.
3. Remain silent. Say nothing about the quantity, origin or purpose of anything found, hand over no passwords, and hand over no incriminating items. Your right to silence is not an admission of guilt.
4. Insist on your right to be present – and on your people. You may call in a person of trust (§ 121 para 2 StPO) – your lawyer can be that person or attend in addition. In practice, the search will generally be delayed for a reasonable time until your person of trust arrives, unless this would jeopardise the purpose of the search.
5. Do not consent, do not hand over voluntarily. If you consent to a voluntary inspection or hand the sought items over voluntarily, you lose the protective rights of § 120 ff StPO and your ability to file a complaint later.
6. Have the file examined and consider a complaint. An experienced defense lawyer checks whether the search was lawfully authorised and lawfully carried out, files a complaint (Beschwerde) where appropriate, and demands the return of seized objects. A search may also be followed by pre-trial detention – the wider context always has to be kept in mind.

Frequently asked questions about house searches in Austria

Related articles