[ad_1]
How many raids are approved each year?
In 2019, 5,108 home searches were approved, 58 requests from prosecutors were rejected. In 2020, 5,122 were approved and 44 were rejected, that is, 19 home searches per day (more than 260 business days). In the case of approval, the court sets a deadline. In the Blümel case, the judge approved the home search on December 23, 2020; It was only held on February 11, 2021.
The obstacle is not particularly high; for example, there is no benchmark on the seriousness of the crime or the urgency of the suspicion. An example: it is enough if an apartment smells like marijuana and the resident does not open the door.
What is the judge examining?
In essence, there are three points: what crime is involved, if there is a suspicion of a certain person and if there are “certain facts” so that certain objects are found in the premises that are suitable for clarifying the suspicion.
Finally, the court examines whether the measure is proportionate. It is relevant here whether there are more forgiving means available to achieve the purpose. For example, asking the defendant to voluntarily hand over the material.
Why weren’t softer media used in Minister Blümel?
The Public Ministry justifies it in the order of search of the house as follows: “The purpose of the measure cannot be achieved by more lenient means, because it is to be feared that the accused will destroy the objects and data relevant to the evidence if they become aware of the suspicion in question. “
And the WKStA further argues: “The search warrant responds to the suspicion of a serious suspicion of bribery of one of the highest officials of the republic and to the fact that the facts cannot be clarified in any other way.”
What happens if researchers make so-called “chance finds”?
If the police search an apartment or a cell phone, they can find evidence of other crimes, such as drugs, suspicious photos or messages. Usability is a highly controversial topic among defense attorneys. Some accuse investigators of trying to do so. According to the motto: you throw the net and see what else gets stuck. In Austria, random findings suggesting that another criminal act may be used (we know from crime novels – this is not allowed in the US).
Accidental findings must be recorded in a protocol and communicated to the prosecutor so that he can separately petition the court for the seizure.
Can you defend yourself from a raid?
Yes, but only later with a complaint to the Superior Regional Court. The measure cannot be postponed: the essence of a raid is the surprise effect. The higher regional court then checks whether the raid was proportionate and carried out in accordance with the law.
What if the raid was illegal?
Illegally seized items must be returned, but there are no consequences for the persons involved, neither for the prosecutor who ordered the measure nor for the judge who approved it. The best-known example was the raid on the Office for the Protection of the Constitution in 2018.
The reason: it is a “legal review” in the instance of a court, similar to a court ruling, explains Sabine Matejka, president of the judges’ association. The second instance can reach a different verdict than the first judge, it cannot “sanction” him for it.
Who controls the work of judges and prosecutors?
The system is hierarchical: at the base the department, at the top the Ministry of Justice, which can request reports in case of anomalies. Disciplinary procedures are the last resort. At the request of KURIER, the Ministry of Justice could not specify how many there were in recent years at the time of publication.
One reason for disciplinary proceedings would be, for example, if a judge accumulates a huge backlog of proceedings, does not follow instructions, or does something in public that damages the reputation of the judiciary.
