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17 January 2018

Criminal procedural law vs individual privacy / liberty

Privacy is a very delicate issue from the perspective of criminal (procedural) law. For their investigative activities, state authorities are granted various rights which interfere with the privacy of the individual. 

A prominent example is the possibility for state authorities to conduct house searches. Such house searches might take place not only at private homes, but also in the office buildings or factory sites of enterprises. When an enterprise is the target of the house search, it is the privacy of the enterprise which is at stake. In all instances, it is of utmost importance to minimise the detrimental effect of a house search. We have compiled a list of important do's and don'ts.
Another intricate issue from the perspective of criminal law and privacy is the recording of conversations. Many questions are still unresolved from a legal perspective. See more on that in our fictional interview...

Prosecution authorities have become more active over the past few years. House searches are no longer fantasy, but a stark reality. So what to do when the prosecutor comes knocking on your door? Some of the most important measures are outlined below from an Austrian law perspective. Some issues may have to be handled differently depending on your jurisdiction, so always consult your lawyer! 

  • Require the officers to show their IDs.
  • Ask to see the search warrant.
  • What does the search warrant cover?
  • Who is the defendant? 
  • Call your lawyer.
  • Ask the authorities to wait with the house search until your lawyer arrives. 
  • Do not to grant a "voluntary insight" to the authorities.
  • Do not delete any electronic data nor destroy any paper documents.
  • Do not let the authorities search the premises alone.
  • Cooperate to the extent necessary and create an atmosphere of trust – but be aware of and insist on your rights.
  • Prevent the authorities from seizing documents / data outside the scope of the search warrant. If they nevertheless insist, raise an explicit veto to the authorities!
  • Prevent the authorities from seizing documents / data protected by attorney client privilege. If they nevertheless insist, raise an explicit veto to the authorities!
  • The basic rule is that authorities should only take copies with them.
  • Make a second copy of seized documents / data for your internal documentation. 
  • Watch out for and avoid subtle interrogation by officers!
  • Insist on formal interrogation and insist on your rights, which are different depending on whether you are interrogated as a witness or defendant. Ask to have your lawyer present at the interrogation!
  • Handle the PR issue carefully – avoid internal leaks.  

Plan what to do beforehand, so that if the prosecutor indeed comes knocking you will be prepared! 

authors: Michael Lindtner and Klara Kiehl