House search in Austria — what are the police allowed to do?

Suddenly the doorbell rings. Officers of the criminal investigation police are standing outside the flat and explain that a house search is being carried out. What are the police allowed to do now? Must I let the officers in? May I call my lawyer? What happens to my phone or my computer? And can I challenge an unlawful house search?

A house search is one of the most serious interferences that can take place in the course of criminal proceedings. Austrian criminal procedure law therefore lays down specific conditions and procedural rules.

As a rule, a house search may only be carried out if, on the basis of certain facts, it can be assumed that a suspect or items or traces which are to be seized or examined are located in the premises concerned. As a rule, judicial authorisation is required for this. In the case of imminent danger there are statutory exceptions.

In a house search, premises are searched for persons, items or traces which may be relevant to criminal proceedings. This can be, for example:

• a flat,
• a detached house,
• a cellar,
• a garage,
• an office,
• business premises
• or another protected space.

A flat can therefore also be searched if evidence which is relevant to criminal proceedings against another person may be located there.

A house search is not an arbitrary investigative tool. Under the statutory provisions it must be possible to assume, on the basis of certain facts, that the premises contain, for example,

• a suspect,
• items,
• evidence or
• traces

which are of significance for the criminal proceedings. The measure must therefore be based on specific factual circumstances.

As a rule, yes. Under § 120 StPO, certain searches are to be ordered by the public prosecutor's office on the basis of judicial authorisation.

The public prosecutor's office leads the investigation proceedings. As a rule, it must apply to the court for investigative measures which particularly affect fundamental rights, such as a house search.

This means: The police do not decide entirely freely when a flat may be searched in the course of criminal proceedings.

What does “imminent danger” mean?

An important exception applies in the case of imminent danger. If it is to be feared that the purpose of the house search would be frustrated, the criminal investigation police may, subject to the statutory conditions, carry out the search provisionally even without prior judicial authorisation. § 120 StPO expressly provides for this possibility.

This is, however, an exception to the procedure provided for as a rule.

If a lawful house search has been ordered or the statutory conditions for a search without prior authorisation are met, the measure can as a rule be carried out even against the will of the person affected.

Physical or violent resistance against the police is therefore not a sensible response.

What should I do if the police suddenly appear at my door?

The first reaction should be as calm and controlled as possible.

Yes. The Austrian federal portal expressly points out that the person affected may call in a person of trust, for example a lawyer.

This is particularly advisable if

• numerous items are being searched,
• electronic devices are affected,
• documents are being taken away,
• the scope of the search is unclear,
• several people are affected,
• or there are doubts about the lawfulness of the measure.

Must I be present during the house search?

As a rule, the person affected is asked to remain present during the search and to observe it. If the occupier of the flat is not present, an adult co-occupant should as a rule be present. If that is also not possible, the law provides special rules for the presence of other persons.

The search may not be carried out entirely detached from the purpose of the measure. What is decisive is what is to be searched for on the basis of the order or of the statutory conditions.

If, for example, particular documents are being looked for, the question arises which rooms or containers can be relevant for this at all.

In a specific house search it should therefore be examined carefully:

• What is to be searched for?
• Where is it to be searched for?
• Which persons or items are affected by the suspicion?

That can be possible subject to the statutory conditions. A mobile phone can, for example, contain evidence which is relevant to criminal proceedings.

Whether a phone or another electronic device may be seized depends, however, on the specific proceedings and on the statutory conditions. A house search and a seizure are moreover legally to be distinguished from one another.

What happens to my computer?

Computers, tablets, hard drives or other electronic devices can also be relevant to criminal proceedings. With digital evidence in particular, however, additional legal questions arise. These include, for example:

• Which data may be examined?
• Which devices may be seized?
• Which data are connected with the allegation?
• Are there data belonging to uninvolved persons?
• Are professional secrets affected?
• How is the examination carried out?

In a house search which affects extensive digital data, early advice in criminal law matters is particularly important.

The carrying out of a house search and the handing over of items are legally to be distinguished from one another. If items are found which may be of significance for the investigation, they can, subject to the statutory conditions, be seized or made the subject of a confiscation order. The StPO contains its own provisions for this.

For that reason one should not attempt to hide or destroy relevant items.

May I hide anything during the house search?

If you take the view that the police are wrongly taking an item away, this should be documented and then reviewed legally.

What happens if the police find something?

If items which may be of significance for the criminal proceedings are found during a house search, a seizure or a confiscation order may follow. A record is drawn up of the search.

For that reason it should be recorded precisely:

• which items were found,
• which items were taken away,
• where they were found,
• and what measures the police took.

Do I receive a record?

Yes. A record is drawn up of the house search. This record can later be of considerable significance for the legal assessment of the measure. For that reason it should be examined carefully.

What happens if nothing is found?

If no relevant items or traces are found, the person affected can on request receive a confirmation that nothing was found. An unsuccessful house search can also provide important information for the defence.

You should be aware that a house search is often part of ongoing investigation proceedings. For that reason you should in particular not attempt to “solve” the situation spontaneously by giving long explanations to the officers.

If you are the accused, separate defence rights apply. A house search is not the right moment for an unprepared, comprehensive statement on the allegation.

Must I answer questions from the police?

That depends on what role you have in the proceedings and on which question is asked. If you are the accused, you have the right to remain silent. A house search should therefore not be confused with a spontaneous questioning of the accused.

If you are unsure whether and what you should say: Contact a criminal defence lawyer.

May I film the house search?

Caution is called for on this question. Whether and to what extent a particular recording is permissible depends on the circumstances of the situation. In any event you should not obstruct the carrying out of the official act.

If you wish to document the course of events, it makes more sense to agree this with a lawyer who is present and in any event to take no steps which could be understood as obstruction of the official act.

Once the measure has been concluded, the following should first be clarified:

• What was taken away?
• What does the record say?
• Which order is there?
• Which evidence was being looked for?
• Which items were seized?
• Which further investigations are to be expected?

The defence should then examine the state of the file. Here the article connects directly to the topic of access to the case file in criminal proceedings.

House search and access to the case file

After a house search, access to the case file is particularly important. For the defence should be able to examine:

• On what factual basis was the house search applied for?
• Which reasons were given in the order?
• Which evidence was available to the public prosecutor's office?
• Which judicial authorisation was granted?
• What specifically was to be searched for?
• What was actually found?
• What was seized?
• Which further investigations are planned?

Only with knowledge of the file can the measure be assessed comprehensively.

Yes. If you take the view that an investigative measure was unlawful, certain legal remedies are available in criminal proceedings.

The specific course of action depends on

• which measure was taken,
• whether judicial authorisation was in place,
• whether imminent danger was claimed,
• what exactly was searched,
• what was seized,
• and what stage the proceedings have reached.

In recent proceedings the Supreme Court likewise addressed the question of a house search carried out without judicial authorisation and the resulting questions of legal protection.

For that reason, after a house search the question should not only be asked:

Can an unlawful house search have consequences for the criminal proceedings?

That must always be examined on the basis of the individual case. An alleged unlawfulness of an investigative measure does not automatically mean that the entire criminal proceedings are brought to an end. Different legal consequences may, however, be relevant.

A criminal defence lawyer should therefore examine in particular:

• the order,
• the judicial authorisation,
• the conditions for the search,
• the way it was carried out,
• the seizure,
• the documentation,
• and the further use of the evidence obtained.

A house search can affect more than private flats. Business premises can also be the subject of a search under criminal law.

In the case of businesses, additional problems can arise, for example if

• employee data,
• customer data,
• business secrets,
• tax documents,
• correspondence with lawyers,
• electronic communications
• or other sensitive documents are affected.

In such cases defence counsel should be brought in as early as possible.

If several people live in a flat, a house search does not automatically mean that all the occupants are accused persons.

As already mentioned, the occupier of the premises need not necessarily be the person against whom the suspicion is directed. The respective legal position must therefore be examined for each person affected.

If you do not agree with the measure, this should not be fought out through physical resistance. The lawfulness can be examined legally afterwards.

For those affected, a house search is often an extraordinary burden. Even so, one should remain as calm as possible in this situation.

Instead one should:

• examine the order or the authorisation,
• contact a lawyer,
• observe the search,
• document the items taken away,
• secure the record,
• and then have the lawfulness of the measure and the entire state of the file examined.

The public prosecutor's office leads the investigation proceedings; for measures which particularly affect fundamental rights, such as a house search, judicial authorisation is as a rule required.

If the police are currently carrying out a house search at your home or one has already taken place, you should contact a criminal defence lawyer as early as possible.

Attorney Mag. Wali Ihsan works as a criminal defence lawyer in Vienna and represents accused persons in investigation proceedings and in court criminal proceedings.

After a house search, the examination of the

• search order,
• judicial authorisation,
• investigation file,
• seizures,
• records
• and further investigative measures

can be decisive in particular.

Mag. Wali Ihsan, Attorney – Criminal Defence Lawyer in Vienna

Note: This article provides general information and does not replace individual legal advice. The specific legal assessment depends on the circumstances of the individual case. As at: September 2026.