Cell phone seizure

Criticism of procedure: “Very strange”

Symbolic image

(Bild: Josep LAGO / AFP)

Now that the government has agreed on a new regulation for the seizure of cell phones and data carriers, judges, public prosecutors and lawyers are criticizing the procedure. They are particularly annoyed by the very short review period.

"It is very strange that such an important law is not given sufficient time to be reviewed," said Gernot Kanduth, Chairman of the Association of Judges. The provisions are to be passed by the National Council before the summer.

According to Kanduth, he could not say much about the content of the matters. He had not been involved in the talks. However, he fears that the judiciary will have to struggle with staff shortages as a result of the new regulations. The plan is to create 14 additional posts at the public prosecutor's offices and six at the courts. "Ten of the provincial criminal courts will not receive a single additional post," said Kanduth on Ö1-Mittagsjournal.

The President of the Association of Austrian Public Prosecutors, Elena Haslinger, expressed similar criticism. "We were not involved in the conception of the draft. A serious assessment can only be made in a written statement, but from a constitutional point of view it is very worrying that there is now no longer a sufficient review period." There is also the question of the extent to which the comments submitted can still be incorporated.

Significant additional work feared
She also feared that the procedures could now take longer. For example, the fact that the change means that all persons from whom messages have been stored now have to be informed of this retrospectively would lead to considerable additional work. "In the case of drug proceedings, that would be all customers, for example." She also takes issue with the fact that not every public prosecutor's office has an additional position. The additional positions also only affect public prosecutors and not senior public prosecutors, meaning that the economic and corruption public prosecutor's office will not be increased.

Furthermore, the planned change to allow defendants to submit an application for discontinuation after two years due to the length of proceedings being too long will lead to additional work, whereas previously a review procedure was automatically initiated after three years. Haslinger also sees a lack of trust in the public prosecutor's offices. "Backup copies of the data must then remain with the criminal investigation department, and the public prosecutor's offices are denied access. In some cases, data that has been secured in an investigation based on an order from the public prosecutor's office is simply kept by the police and we are denied access." The initiative motion on Thursday came as a surprise to her.

If the encroachment on fundamental rights is so severe, the public prosecutor's office must determine in advance what it needs in order to be able to investigate the case efficiently

Verfassungsministerin Karoline Edtstadler (ÖVP)

Amendments to the Code of Criminal Procedure
 The so-called "Criminal Procedure Amendment Act" contains not only the new regulation on cell phone seizures, but also numerous other amendments, particularly to the Code of Criminal Procedure. These include regulations on the discontinuation of criminal proceedings, access to files for victims and defendants and the separation of proceedings.

"In principle, the reform is very welcome, not only the cell phone security but also the other measures," said Armenak Utudjian, President of the Austrian Bar Association. However, it was not yet possible to say anything in detail, as the draft was only received on Thursday evening and the extensive legislative proposal must first be examined. "It is therefore all the more regrettable that a proper review is not possible. I hope that we at least have two weeks," he added, echoing the criticism from Kanduth and Haslinger.

(Bild: P. Huber)

Before the provisions are to be passed by the National Council before the summer, only a short committee review is planned, lasting a maximum of two weeks. The last two plenary sessions and thus the adoption of the law are already scheduled for July 3 and 4. "I understand the criticism, I would also have preferred the law to have been passed earlier," constitutional minister Karoline Edtstadler (ÖVP) admitted to Ö1-Morgenjournal. The Minister does not fear that too few comments will now be received: "The entire specialist public has been dealing with this for a long time. I am convinced that everyone will now be looking at this proposal with great interest and I am convinced that the comments that come here will be highly qualified and will be incorporated accordingly by the Ministry of Justice."

Careful consideration of encroachments on fundamental rights

Edtstadler is not worried that the planned amendment to the law could make investigations more difficult. "If the encroachment on fundamental rights is so serious, the public prosecutor's office must determine in advance what it needs in order to be able to investigate efficiently." The plan is for public prosecutors to specify in their application to the court which data they want to request for which purpose and from which time period. "I have no doubt that the judges will approve this if it is requested in advance," emphasized Edtstadler.

Edtstadler - unlike Justice Minister Alma Zadić - also does not believe that more judges will be needed as a result. At the beginning of the year, shortly after the Constitutional Court ruled that the previous regulation contradicted the constitution, the Green Minister assumed that there would be a significant need for more judges, particularly in the journalistic service. "You can certainly take your time with these applications, and if there is a risk of a person deleting things, there is a danger-in-delay rule." In this case, the police can seize a cell phone directly and then initiate the necessary authorization process.