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.

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.