Seizure and confiscation in criminal proceedings – When may the police take my mobile phone, money or other items?

During a house search the police take away your mobile phone, cash, a computer or other items. May they simply do that? Will you get your things back? What is the difference between seizure and confiscation? And what can you as the person affected do about it?

These questions arise in many criminal proceedings.

A seizure can have considerable consequences for those affected. This applies in particular where a mobile phone, computer, important documents, cash or other items are taken away.

Austrian criminal procedure law distinguishes here between seizure and confiscation. The basic provisions are found in particular in §§ 109 to 116 StPO.

What does seizure mean?

Put simply, a seizure means that the competent authority provisionally obtains the power of disposal over an item, an asset or data.

§ 109 StPO defines seizure as the provisional establishment of the power of disposal over items, assets and data, or as a provisional prohibition of certain dispositions over these things.

A seizure may serve in particular to

• secure evidence,
• secure claims under private law,
• secure assets for certain decisions under property law.

What does confiscation mean?

Confiscation must be distinguished from this.

Under § 109 StPO, confiscation is as a rule a judicial decision on the establishment or continuation of a seizure.

This is important for those affected. Because the question is not only: “May the police take the item away in the first place?” But also: “May the item remain confiscated?”

Put simply:

The Austrian Code of Criminal Procedure provides different requirements and legal remedies for these measures.

A seizure may take place in particular for evidentiary reasons. For example, an item may be seized if it could be relevant to solving a criminal offence.

This can be, for example:

• a mobile phone,
• a computer,
• a hard drive,
• an item of clothing,
• a document,
• a data carrier,
• cash,
• a vehicle,
• a tool,
• or another item.

The seizure must, however, be based on the statutory requirements.

As a rule, the criminal investigation police carry out seizures on the basis of a corresponding order; in certain cases provided for by law they may also seize items on their own authority.

For example, it may contain information about:

• messages,
• photographs,
• videos,
• contacts,
• location data,
• communication histories,
• documents
• or other data relevant to the criminal proceedings.

That does not automatically mean, however, that the police may search any mobile phone without restriction. Special statutory rules apply precisely to electronic devices.

Mobile phone seized — may the police look at all the data?

Particular care is called for here.

The StPO expressly distinguishes between the seizure or confiscation of a data carrier and the confiscation of data carriers and data. § 109 StPO contains its own definitions for this.

With digital evidence, several questions may therefore have to be kept apart:

• May the mobile phone be seized?
• May it be confiscated?
• Which data may be analysed?
• How may the analysis be carried out?
• Are data of third parties affected as well?
• Is there specially protected data?

A review by a lawyer should therefore take place precisely in the case of mobile phones and computers.

What happens if the police find my mobile phone during a house search?

If an item that may be significant for the criminal proceedings is found during a house search, it may be seized. The item is documented accordingly and entered in the list of seized items.

May the police seize cash?

Cash too may be seized subject to the statutory requirements. This may concern, for example, securing evidence or securing certain decisions under property law.

With larger sums of money the question often arises: Why is the money regarded as relevant to the criminal proceedings? This question should be examined on the basis of the specific investigation file.

What happens to seized money?

That depends on the reason for the seizure. If the money is needed as evidence, for example, different considerations apply than in the case of a seizure preparing an order under property law. The specific legal basis and the purpose of the measure must therefore be examined.

May the police seize my car?

A vehicle too may be the object of a seizure subject to certain conditions. What matters is why the vehicle is said to be relevant to the criminal proceedings.

For example, it may be a matter of

• traces,
• technical examinations,
• accident traces,
• instruments of the offence
• or other evidence.

Whether the seizure is permissible and proportionate in the specific case must be examined on the basis of the circumstances.

What does “incidental finding” mean?

During a house search or a body search, items may be found that were not directly the object of the original search but point to another criminal offence. Such incidental findings may likewise be seized subject to the statutory requirements.

The Austrian federal portal points out that an additional record is taken of such further items and transmitted to the public prosecutor’s office. If the public prosecutor’s office does not apply for further investigations, the items must be returned.

As a rule, a seizure is not an unlimited measure.

As a rule, the criminal investigation police must report a seizure to the public prosecutor’s office within 14 days or lift it. Where such a report is made, the public prosecutor’s office must apply for confiscation or order the lifting of the seizure; special statutory rules exist for certain items.

§ 115 StPO sets out the requirements for a confiscation.

A confiscation is permissible in particular where the seized items or assets are likely to

• be required as evidence in the further proceedings,
• be subject to claims under private law,
• or be needed to secure certain decisions under property law.

The court decides on the confiscation without delay upon application by the public prosecutor’s office or by a person affected by the seizure.

Must an item remain confiscated forever?

No. If the requirements for confiscation no longer exist, the confiscation must be lifted. § 115 Abs. 6 StPO expressly provides that the confiscation is to be lifted if its requirements do not exist or no longer exist.

This may become relevant, for example, where

• the investigation has been completed,
• the item is no longer needed as evidence,
• the evidentiary value has been sufficiently secured by a copy,
• or the original reason for the measure has ceased to apply.

Can my mobile phone be returned even though the proceedings are still ongoing?

Yes, in principle that can be possible. What matters is whether the specific device is still needed.

A recent judgment of the Higher Regional Court of Vienna (OLG Wien) from July 2026 shows the practical significance of this question: in those proceedings a mobile phone had been confiscated because a relevant photograph was on it. The court found, however, that a copy of this photograph was already in the file and that no further relevant evidence had been established on the phone. The confiscation was therefore lifted and the release of the mobile phone was made possible.

Can I demand the return of my mobile phone?

Yes, if the requirements for the continued seizure or confiscation no longer exist, a return or a lifting of the measure may be considered. § 115 Abs. 6 StPO requires the confiscation to be lifted as soon as the statutory requirements no longer exist.

The question is therefore not only: “How do I get my mobile phone back?” But: “Why is my mobile phone still needed?”

Seizure and confiscation interfere with the rights of the person affected. The statutory requirements must therefore be complied with.

In the decision from July 2026 referred to above, the OLG Wien expressly emphasised that a confiscation is subject to the principle of proportionality. It must in particular be necessary, suitable and proportionate in the narrower sense.

This can be significant precisely in the case of electronic devices. If, for example, only a single photograph is needed as evidence, the question may arise whether the entire mobile phone actually has to remain confiscated for that purpose.

You should not simply accept the situation.

As a person affected by the seizure, an application for a judicial decision on the confiscation can be made. § 115 Abs. 2 StPO expressly provides that the court decides on the confiscation upon application by the public prosecutor’s office or by a person affected by the seizure.

A criminal defence lawyer can therefore examine:

• on what basis the seizure took place,
• what purpose it serves,
• whether the requirements still exist,
• whether the measure is proportionate,
• whether a copy of the relevant data is sufficient,
• and whether the release should be applied for.

What should I do if the police take away my laptop?

First of all, you should have it documented precisely which device was taken away.

Note down or secure:

• the make,
• the model,
• the serial number, as far as known,
• the condition of the device,
• accessories,
• and the corresponding documentation by the police.

After that it should be examined which legal measure was ordered and which data are said to be relevant to the proceedings. Precisely in the case of computers used for professional purposes, their removal can have considerable consequences.

What about a company computer?

For businesses, the seizure of a computer or server can have considerable economic effects.

Additional questions may arise here:

• Does the device contain customer data?
• Does it contain trade secrets?
• Does it contain data of uninvolved persons?
• Are several employees affected?
• Are business-critical data needed?
• Are there ways of securing only the relevant data?

This can be particularly important for assessing proportionality.

What happens to professional or private data?

Special statutory protection mechanisms exist for data carriers and data.

The Federal Ministry of Justice expressly points out that the seizure and confiscation of data carriers and data, as well as the confiscation and opening of letters and papers, are subject to special rules, in particular to protect privacy and trade secrets.

In the case of extensive digital seizures it should therefore be examined particularly carefully which data are actually covered by the purpose of the investigation.

May the police search my entire mobile phone if only one particular message is relevant?

This question cannot be answered across the board. With digital evidence, a distinction must be drawn between the device, the data and their analysis.

What matters in particular is

• what the suspicion of an offence relates to,
• which data are being sought,
• which statutory measures were ordered,
• and which statutory requirements apply to the analysis.

The legal review can therefore be complex precisely in the case of smartphones.

What happens if the police lose an item?

The seizure is documented. It is therefore important that the list of seized items is checked carefully.

If items are missing or have been described incorrectly, this should be raised as early as possible with the defence counsel in charge or with the competent authority.

Must I be able to refuse to hand over an item?

If the statutory requirements for a seizure are met, the criminal investigation police may, subject to certain conditions, also enforce the measure with proportionate and appropriate coercion. The Austrian federal portal additionally points to the possibility of a judicial coercive penalty to enforce the surrender of an item.

One should therefore not attempt to prevent a lawful measure physically. If you consider the seizure to be inadmissible, the question should be clarified by legal means.

A seizure occurs particularly often in direct connection with a house search.

The police search a flat, for example, and subsequently take

• several mobile phones,
• a laptop,
• USB sticks,
• documents,
• cash
• or other items

with them.

The defence should then examine not only the house search itself. The following should also be examined:

• Was the seizure of each individual item permissible?
• Which item is supposed to provide which evidence?
• Is continued retention necessary?
• Can the evidence be secured by a copy?

Seizure and access to the case file

There is a direct connection here to my article on access to the case file in criminal proceedings.

After a seizure the defence should examine in particular:

• the original order,
• the suspicion of an offence,
• the reasoning for the measure,
• the list of seized items,
• the further handling of the items,
• any court decisions,
• and the results of the analysis.

Only in this way can it be assessed whether a return or a legal remedy makes sense.

Seizure and criminal defence lawyer

After a seizure, a criminal defence lawyer can examine in particular why something was taken away, how long it may be kept, whether the measure is proportionate, and whether a return can be applied for.

This is important precisely in the case of mobile phones and computers. Because for many people a mobile phone is not merely an item. It contains private communication, photographs, contacts, professional documents and a great deal of personal information. A confiscation lasting a longer time can therefore have considerable effects.

If the police take items away during a house search or in the course of other investigations, those affected should not assume prematurely that these items will automatically remain with the state until the end of the proceedings.

The Austrian Code of Criminal Procedure distinguishes between seizure and confiscation.

The decisive factors are in particular:

• the purpose of the measure,
• the statutory requirements,
• the necessity,
• the proportionality,
• and the question whether the item is still needed as evidence.

A precise legal review is particularly important precisely in the case of mobile phones, computers and other data carriers.

If the police have seized your mobile phone, your computer, cash or other important items, you should have the measure reviewed by a criminal defence lawyer as early as possible.

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.