Coalition agreed:

Cell phones may be confiscated in this case

(Bild: Huber Patrick/P. Huber/Kerstin Wassermann/Krone KREATIV)

The government has agreed on a new regulation for cases in which cell phones or data carriers such as laptops may be seized. On Thursday, a corresponding draft bill was submitted to the National Council (see video above).

The previous provisions were repealed by the Constitutional Court (VfGH) on 1 January 2025 - among other things because they allowed seizures without judicial approval. In addition, further points of the Code of Criminal Procedure will be amended.

According to the Constitutional Court, the current regulation on cell phone seizures violates the right to privacy and the Data Protection Act. In its ruling, the Supreme Court therefore laid down guidelines for a new regulation: In addition to the judicial reservation, it was also stated, for example, that a judge must also determine which data categories and contents from which period and for which investigative purposes may be evaluated in the event of a warrant. Furthermore, the public interest in criminal prosecution and the fundamental rights of those affected must be weighed against each other.

Symbolic image

(Bild: Huber Patrick/P. Huber/Kerstin Wassermann/Krone KREATIV)

The coalition now wants to comply with this with its new version. From 1 January 2025, a new regulation on the "seizure of data carriers and data" is to be created for the seizure of data (carriers), such as smartphones or laptops or the cloud services accessible with them. According to a press release from the Ministry of Justice, this applies to all devices that store data if the law enforcement authorities wish to access the data (i.e. not, for example, if only a fingerprint is to be secured on a smartphone).

When can a cell phone be seized?

If the public prosecutor's office wants to seize a cell phone in future, it must justify its intention as before - no longer in a seizure order, but in an application to the court. The data categories and data content to be processed later as well as the time period must be specified (as an example, the Ministry of Justice mentions the call log and all messenger messages in a certain period or the photo files in a certain storage period). This must then be approved by the court; only then can the public prosecutor's office order the seizure by the criminal investigation department.

Only "permitted" files may be analyzed
Subsequently, only the approved data categories may be read out during data processing in the approved period, without any evaluation of the content. A working copy must then be created from an original backup that is no longer changed. This is to ensure that only the "permitted" data is actually evaluated. Only these are then forwarded to the public prosecutor's office or the police.

If new grounds for suspicion arise, further data can be evaluated with a new court authorization. If indications of other criminal offenses are found in the processed data (so-called "incidental findings"), the public prosecutor's office can (or must) investigate these further following a new court application.

Symbolic image

(Bild: P. Huber)

In the event of imminent danger, the police may continue to physically seize the cell phone if someone is caught in the act. However, the public prosecutor's office must still apply to the court for a seizure.

As legal protection, it is envisaged that the legal protection officer of the judiciary may check whether an evaluation has actually taken place within the scope of the court authorization. Both the accused and the victim can apply for this and the public prosecutor's office can suggest it.

Victims and defendants can apply for the data to be analyzed
Both victims and defendants can also apply for the processed data to be analyzed. For example, if a victim is aware of certain evidence on a cell phone (e.g. a threat made via WhatsApp), they can ask the public prosecutor's office to search for this evidence. The person whose data carrier has been confiscated also always has the opportunity to view the results of the data processing.

"Two points were particularly important to me in the new regulation of cell phone seizures," says Justice Minister Alma Zadic (Greens). "On the one hand, that we implement the requirements of the Constitutional Court - which ordered us to introduce new regulations - precisely. On the other hand, that we continue to ensure investigations by public prosecutors and the criminal investigation department, particularly in the areas of organized crime, terror and corruption." 

For Constitutional Minister Karoline Edtstadler (ÖVP), these are "long overdue regulations that significantly strengthen the rights of the accused in criminal proceedings", she emphasized in a press release. "The seizure and evaluation of cell phones and all data on them will be designed in accordance with the technical circumstances and in conformity with fundamental rights."

Special jurisdiction for domestic violence proceedings
Other points in the Code of Criminal Procedure are also to be reformed. Victims will be given the opportunity to appeal against the withdrawal of charges - they will have access to the files from day one (as will the accused). In addition, trial support for underage witnesses of violence will be extended, and district courts and courts of first instance will in future be given special jurisdiction for domestic violence proceedings.

Zadic: Biggest judicial reform of the last 20 years
The abolition of time limits will simplify the filing of motions to discontinue proceedings. In addition, public prosecutors' offices are to be relieved by simplifying the rules for initiating preliminary proceedings. Higher regional courts will in turn be obliged to publish final and binding decisions. For Zadic, the new regulations are "the biggest judicial reform of the last 20 years". This will ensure "that the Austrian judiciary remains equipped for the challenges of the next 20 years and further strengthen the population's unbroken high level of trust in the judiciary".