According to the Austrian declaration to Article 5 of the European Convention on Mutual Legal Assistance in Criminal Matter, ETS No. 030, being still applicable also with the MS of the EU, the execution of requests for search and seizure is only possible under the condition that it is consistent with the Austrian law (Art 5 para 1 letter c of the Convention).
In practice this means:
- a check of double criminality
- compliance with Section 56 para 2 of the Austrian Federal Law on Extradition and Mutual Legal Assistance, reading as follows:
(2) A request for ordering and performing one of the investigative measures governed by Chapter One to Chapter Eight of Title 8 of the Code of Criminal Procedure shall comprise a copy, a certified copy or a photostat copy of the order of the competent authority. If this is not a court order, the authority requesting judicial assistance shall present a statement explaining that the prerequisites required for such measures are met under the law applicable in the requesting State.
This provision sometimes causes extra work and communication necessities. Therefore, when drafting a letter rogatory to Austria, it is recommended to either:
- attach a court order or prosecutorial order or
- indicate in the request that the prerequisites required for such measures are met under the law or the requesting state.
This provision also applies to bank account information.