Compliance & White Collar Crime
Raid! Now What?
→ Heidemarie Paulitsch
A house search is always an exceptional situation. The officers usually show up without warning in the early morning hours, surprising the host. The officers, by contrast, are well prepared, with much background information on the company and key persons, but without having to reveal this information. It is thus of utmost importance for companies to be well prepared in advance.
Not in the back parlour any more
Criminal investigations have long ceased to take place in the back parlour of justice. More and more, the Public Prosecution Office uses house searches while investigating white collar crimes. The investigators raid not only the accused and their offices, but have expanded their focus to consultants who might be in possession of the culprit’s documents, such as lawyers, tax advisors, auditors, and notaries.
A raid is meant to discover documents that can be necessary to then charge the accused. The element of surprise enables investigators to get hold of documents usually inaccessible to them.
A house search is a coercive measure that interferes with the basic rights of the host. It must be justified, legally approved, and covered by procedural law. The interests of the host/company and the officers conflict. The host can later use many legal remedies against the confiscation and the official acts, but these do not stop or delay the search. Officers simply cannot be kept from searching the house. The host, however, need not cooperate.
Who is authorised?
The authority to conduct house searches lies especially with the Public Prosecution Office, the criminal investigation department, the European Commission, the Austrian Federal Competition Authority, the financial market authority, the audit court, and the financial police.
What to do?
Although house searches are widely covered by the media, one is still surprised to find be targeted. When the Public Prosecutor knocks on your door in the early morning hours, accompanied by backup security agents, you will immediately be stretched too thin. What do you do? A basic rule: preemptive obedience is just as bad as uncooperative behaviour. A house search can have serious consequences for a company, a law office, and their business partners or customers. Bank secrecy, obligations of discretion, and protection of interests could be impaired.
The reception area is usually the officers’ first contact point. Here, it is important to prevent the officers from spreading out and immediately to inform company members specially trained in house searches. They take over the coordination and communication with the officers. If the officers do not let themselves be hindered by the reception and do not want to wait until somebody receives them, they should be accompanied by a reception clerk. In general, the officers should never be left alone. Every conversation and every confiscation of documents should be recorded. This helps get the same information as the authority and facilitates decisions and coordination after the raid.
No rights should be surrendered, be it the right to call in a defender or confidant for interrogations or the right to refuse a voluntary inspection.
Although not easy, it is important to slow down. Take your time to read the house search order and to ask questions. It has happened that officers were mistaken in the house number and had to leave empty-handed. If the building and the offices of the host are the actual target object of the investigation, the officers are sure to return. The order can then be handed in within 24 hours. The officers have to explain the purpose and background of the house search. Thereby the extent and duration of the raid can be limited and determined. If you believe that certain documents should not be confiscated, they can be sealed. The court will then decide.
In the interest of the host and the employees, a lawyer should be called as soon as possible. The lawyer brings de-escalation, ensures constructive and factual conversations, and helps with legal questions.
In any case it is worth rehearsing for an emergency and obtaining information on rights and duties beforehand. You can successfully defend your rights only if you know them.