Search and seizure of electronic data and devices
The rapid development of new technology has resulted in the storage of a significant amount of data in an electronic format in computers, smartphones and other devices. Therefore, certain legal provisions in the Code of Criminal Procedure and in the Law on Criminal Intelligence empower public authorities to search for and seize either electronic information storage devices like computers or particular electronic data.
These measures can be applied in the form of:
During investigative actions, public authorities can apply search by force and seizure of your electronic devices, among other items, if there are reasonable grounds to believe that these devices could contain needed evidence. In the case of search and seizure, you will be presented with the decision of the relevant authority that has permitted this investigative action. The search and seizure will be performed in your presence.
During operational actions, seizure of electronic data in the form of downloading or copying data from electronic information storage devices such as computers, can be performed if:
- there is well-founded information about the particular persons’ connection to a grave crime, for example, to state security, or
- if a suspect or convicted person absconds, or a person goes missing.
What human rights violation may there be?
Although the search and/or seizure of electronic data and devices can be necessary in the interests of national security and/or for the prevention of disorder or crime, these actions interfere with your right to private life. However, not every interference in your private life amounts to a violation of human rights.
Was the action carried out lawfully?
To evaluate whether an investigative or operational action against you was carried out lawfully and whether your privacy has been sufficiently respected, see the questions below. If, in your situation, your answer to one of these questions is negative, your privacy may have been violated. In such a case, you have the right to complain. Read more about how to complain.
Both laws also contain:
- Certain requirements concerning the conditions under which these actions can be performed. Thus, a sanction from the investigative judge or the regional court is usually required for both investigative actions and the operational actions.
- The procedure for how to challenge the investigative or operational actions taken. Read more about the safeguards in the complaint procedure.
The search and seizure has to based on a decision issued by a competent authority, usually the investigative judge or the regional court, as provided by law. The content and scope of the decision has to be reasonably limited. If it authorizes the seizure of electronic devices and data in a general and unlimited manner, without precisely prescribing the kind of evidence needed, the decision is couched in terms that are too broad and was, therefore, not made in accordance with the law.
If the search and/or seizure is not allowed by law, your right to private life may be violated. There is no need then to examine the other questions.
The search and/or seizure of electronic data and devices has to be aimed at the protection of legitimate interests. Usually these legitimate interests are:
- the prevention, detection and prosecution of crime
- the prevention of disorder
- the protection of other persons
- ensuring the security of the State against internal and external threats
If the measure taken does not serve a legitimate aim, the investigative or operational action is not lawful and your right to private life may be violated. There is no need then to examine the other criteria for lawfulness.
The search and/or seizure of electronic data and devices should be necessary and suitable for the protection of other legitimate interests.
The following questions should be asked to evaluate the necessity:
- Are there relevant and sufficient grounds to believe that the electronic devices or electronic data contain the evidence needed?
- What is the severity of the suspected criminal offence? Is search and/or seizure not too intrusive a means to be performed? This would be the case if the criminal offence was of minor importance.
- Are there other alternative and less restrictive methods available to obtain the needed evidence?
- Would the establishment of the facts by another method be unsuccessful or considerably more difficult?
Both competing interests – your right to private life and the legitimate interests of the State or other persons - have to be balanced against each other and a fair balance must be found. Public authorities have to give sufficient arguments as to why the interests of others outweighed your rights and the other way around in the particular case. In doing so, the following questions should be assessed:
1) How intrusive was the nature of the investigative or operational activity in question?
The level of intrusion can be lower or higher depending on different facts. For example, how large was the amount of your data searched and/or seized and what was the nature of this data? The other competent authorities to which the data has been communicated and under which conditions, should also be assessed.
2) Is there sufficient protection provided against the possible abuse or misuse of the actions and the information obtained?
The implementation of the investigative or operational action taken should be reviewed by a competent body that is independent in its decision making from those authorities carrying out the activities. The law has to provide an effective remedy for you to challenge the lawfulness of the investigative and operational activities. Read more about how to complain and protect yourself in such situations.
3) Were the copies of the seized electronic data destroyed as soon as they were no longer needed to achieve the legitimate aim?
The retention of such private information longer than was actually needed is not proportional and thus is unlawful.
If the authorities have failed to properly balance your interests against those of others and therefore the interference is more serious than necessary, your right to private life may be violated.
Articles 145-147, 149, 160-1
Articles 2, 6, 8, 9, 11
3 July 2012
29 June 2006
6 September 1978
2 August 1984
16 October 2007
27 September 2005
28 April 2005
16 December 1997
14 March 2013
16 July 2013
31 July 2012
Joint publication by the the EU Agency for Fundamental Rights and the Council of Europe