Austria: What to do when the prosecutor comes knocking
House searches have been all over the news in Austria recently. In case you have been wondering what happens to your phone, laptop and tablet when the prosecutor comes knocking – read below:
May I call my family and friends and inform them about the search?
Yes, there are no provisions in the Code of Criminal Procedure that prohibit this, however, the authorities could in some cases be of the opinion that the investigative action might be affected by contacting family and friends. Also note that you have the right to request a trusted person to come to the house search.
May I film officers for evidentiary purposes during a search of my home?
Yes, according to the jurisprudence of the Supreme Court (6 Ob 6/19d), police officers may be filmed during a sovereign operation with coercive force for preventive reasons (in particular because of possible unlawful assaults) and for evidentiary purposes.
Do I have to tell the police my passwords?
This depends on your status. If you are a witness, you have to provide the authorities with all passwords in accordance with your duty to testify. This is not true if you are worried about being implicated in a crime by providing the password and/or you are questioned as an accused: In that case you have the right to remain silent. Thus, you must hand over the respective data carrier but do not have to reveal any passwords.
What happens to my phone, laptop and tablet?
Objects may be seized for evidentiary purposes. In principle, this also includes electronic data carriers such as mobile phones and laptops. Whether the officers may also access them in the course of a house search depends on the respective scope of the search and seizure order; if such an order also includes laptops, notebooks and mobile phones, then the officers are authorised to do so. Wherever technically possible, the search of the carrier should be conducted on the spot, the data within the scope of the search warrant should be copied by the authorities and the data carrier should remain with the accused.
My phone was seized, may I keep my SIM card?
According to case law of the Supreme Court (e.g. 13 Os 96/06a), a SIM card is not a dependent accessory to a seized mobile phone but has its own legal "fate". In this respect, the person concerned is in principle entitled to keep the SIM card. The situation will be different in cases where there is a suspicion that the SIM card contains data such as contact data (telephone numbers), which also serve evidentiary purposes.
May the prosecutor's office copy correspondence with my attorney?
No, the Prosecutor's office is not allowed to do that, unless the attorney itself is under investigation. Attorney's correspondence is subject to attorney-client privilege, which may not be circumvented by seizure and confiscation of documents or data carriers.
Are officers allowed to automatically monitor my phone during a house search?
No. These are two different coercive measures; each of them must be ordered by the public prosecutor's office and approved by the court if the legal requirements are met. A court-approved house search therefore does not automatically authorise the officers to monitor telephones.
May officials recover deleted text messages.
Yes, if technically possible, they may.
authors: Klara Kiehl and Katharina Mydza
