The Constitutional Court announced a momentous decision on Tuesday. The highest judges concluded that seizing cell phones in criminal proceedings without prior judicial authorization is unconstitutional. This is justified by the right to private life and the data protection law. The contested provisions would also not comply with the European Convention on Human Rights.
The legislature must now repair the law by the end of 2024; the previous regulation will no longer be valid on January 1, 2025.
A Carinthian entrepreneur brought the case to the Constitutional Court. His cell phone was confiscated because of suspicion of infidelity.
From photo to chat
The highest judges have now decided that encroachments on fundamental rights must be proportionate. Until now, a cell phone was viewed like an object, like a file folder or a murder weapon that might simply be removed. But the meaning of the cell phone has actually changed. It contains private photos, chats, deleted data that can be retrieved, movement profiles, doctor’s appointments.
“Cell phones are no longer just objects. “The technology has outgrown the criminal procedure code,” says criminal lawyer Ingeborg Zerbes in an interview with OÖNachrichten.
The discussion regarding a reform and corresponding proposals have been going on for a long time. It was not just since the VP chat affair involving Thomas Schmid that there had been discussions regarding how the information contained on a mobile data carrier should be handled.
It will still be possible to pick up a cell phone. In their decision, the constitutional judges stated that it was a legitimate goal to secure and evaluate data carriers in order to prosecute crimes.
The points of criticism
Currently, a cell phone can be confiscated if there is initial suspicion of a minor crime. According to the highest judges, the interference in private life is particularly intense because a person’s cell phone can also be confiscated simply because they know a suspect. All data of all people secured on the cell phone is also affected. Those affected would also have no knowledge of exactly what content was being evaluated.
What needs to change
The highest judges gave the legislature a series of conditions that must be taken into account in any new regulation. In the future, a judge must approve the seizure of data storage media and also determine which data categories and content from which period of time may be used for investigative purposes.
However, this does not guarantee adequate legal protection for those affected, explained the Constitutional Court. When making new regulations, the legislature must therefore weigh up the public interest and the fundamental rights of those affected. It might make a difference whether data carriers can be removed in all cases or only in certain cases – for example in the case of serious crimes or cybercrime. As with telephone surveillance, a legal protection officer might also be appointed here.
The lawyer of the successful Carinthian complainant, Richard Soyer, was pleased yesterday: “The legislature has missed the technical developments of the last 15 years.” The VfGH decision is “a very clear wake-up call”.
Reactions: All parties in favor
Minister of Justice Alma Zadic (Greens) welcomed the decision of the Constitutional Court. It is important that the security interests of the population are safeguarded, she said and promised that the requirements will be implemented promptly.
VP Constitutional Minister Karoline Edtstadler, which has been pushing for reform for a long time, wants to quickly correct the law. She saw her criticism confirmed.
Also SPÖ and FPÖ support the decision. The Neos demanded that the reimbursement of defense costs be also regulated.
The President of the Judges Association Gernot Kanduth spoke of a very important decision. In order to do this, one must also accept that the Constitutional Court requirements would create additional work for judges.
Author
Annette Gantner
Internal politics editor
Annette Gantner
