Seizure and securing of defence documents in Austria: protection of confidential defence communication, the section 112 StPO procedure and remedies.
Mag. Christopher Angerer, Rechtsanwalt
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If notes, letters, emails or digital files from the defence relationship are secured, their content determines the protection. Austrian criminal procedure law protects confidential defence communication against circumvention of the right to refuse testimony. Securing such material therefore cannot be treated like an ordinary collection of evidence.
The distinction matters in practice: criminal police may secure objects in the statutory circumstances, while the legal review of protected records follows specific rules. Section 112 StPO governs custody and inspection when the person affected invokes a statutory confidentiality right. File access and contact with counsel are separate issues.
This selection does not replace a review of the specific decision, but helps organise the key records.
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If the person affected objects to the securing by invoking a statutory confidentiality right, the documents may not simply be inspected. Keep the securing record, the objection and the affected documents together.
Section 157(1)(2) StPO gives defence counsel a right to refuse testimony about information learned in that capacity. Section 157(2) can also cover documents held by the accused that were created for advice or defence.
If protected material has already been read or used, the exact sequence must be documented. Section 112(2) StPO provides that knowledge obtained from documents not admitted to the file may not be used for further investigations or as evidence. The consequence depends on the precise circumstances.
Section 157(1)(2) StPO entitles defence counsel, lawyers and other listed professional groups to refuse testimony about information that became known to them in that capacity. Section 157(2) prohibits circumventing that right through the securing or seizure of documents or through access to stored information.
The protection can also cover documents held by the accused or a co-accused if they were created by counsel or by the accused for advice or defence. The concrete defence purpose is therefore decisive. The fact that a document is kept in a law office or prison does not answer the question by itself.
If the person affected or present objects to the securing of written records or data and invokes a statutory confidentiality right, the material must be secured against unauthorised inspection or alteration and deposited with the court. On request, it may be deposited separately with the public prosecutor. The public prosecutor and criminal police may not inspect it before the decision on access.
The person affected is asked to identify the parts whose disclosure would circumvent the confidentiality right. The reasonable period must be at least 14 days. If the parts are identified, the court, or in certain cases the public prosecutor, reviews the material with the participation of the person affected. Some parts may be admitted to the file while others must be returned.
An objection can be raised against an order of the public prosecutor. The court then decides which parts may be added to the file. A complaint against the court decision has suspensive effect. These safeguards work best when the protected pages, files or messages are identified precisely.
The protection concerns the confidential purpose of advice and defence. Material without a connection to that purpose is not protected merely because it is stored in a particular place. Documents containing mixed material may require a separate review of their individual parts.
Special rules apply if the person concerned is herself or himself strongly suspected of the offence. Section 144(3) StPO limits the circumvention prohibition for certain investigative measures in that situation. This is not a blanket release of every document. The measure, suspicion and statutory requirements still have to be examined.
For the review, collect the search or securing decision, the record, a list of the objects taken and the dates of service and knowledge. For digital data, record the device, account, file name, storage location and relevant period. Vague collective descriptions make later separation more difficult.
Counsel should sort the material into three groups: communication with counsel, personal defence preparation and unrelated files. A short explanation of the defence purpose helps for each group. Originals should remain unchanged. Later editing can create additional uncertainty about both evidence and protection.
The terms describe different steps and should not be merged in a complaint.
| Step | Main question | Important record |
|---|---|---|
| Securing Could the item be taken provisionally? | Decision, record, item and time | |
| Custody Was the objection protected from inspection? | Objection, place of deposit and access protection | |
| Inspection Which parts may enter the file? | Precise identification of protected parts | |
| Use Were protected findings used despite the protection? | File reference, statement, report or follow-up investigation |
The precise classification depends on the content and the documented sequence.
If the person objects by invoking a statutory confidentiality right, the public prosecutor and criminal police may initially not inspect the deposited material under section 112 StPO. The statutory review procedure then determines the scope of access.
Yes. Section 157(2) StPO also covers documents in the custody of the accused or a co-accused if they were created for advice or defence by counsel or by the accused. The defence purpose must be identifiable in the individual case.
Section 112(2) StPO requires a reasonable period of at least 14 days. The period should be used to identify the protected pages, files or messages precisely.
Documents not admitted to the file must be returned. Under section 112(2) StPO, knowledge gained from their inspection may not be used for further investigations or as evidence, subject to the statutory consequence of nullity.
Section 144 StPO mainly protects against circumvention of the right to refuse testimony in specified investigative measures and contains a special rule where the person is strongly suspected herself or himself. Securing and inspection of records must be assessed under section 112 together with section 157 StPO.
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