"To put it casually ..."

Public prosecutor tears up new cell phone seizure law

Symbolic image.

(Bild: terovesalainen - stock.adobe.com)

From 2025, a lot will change for the judiciary when it comes to seizing data carriers. The procedure will be significantly more time-consuming and complex. Even the European Public Prosecutor's Office considers this to be "excessive" - and clearly criticizes the new regulation.

"To put it bluntly, the question arises as to whether the baby is being thrown out with the bathwater," says Deputy European Public Prosecutor General Andrés Ritter about the new regulation on the seizure of electronic data carriers planned for Wednesday in the National Council. He wonders whether this does not go beyond the requirements of the Constitutional Court, on the basis of which the law is being amended.

In particular, the regulation according to which the public prosecutor's office will in future have to describe the data content it is looking for on a cell phone in advance is problematic for Ritter: "You don't have a crystal ball."

At the beginning of an investigation, it is not yet possible to know what is on the data carrier and what social media or WhatsApp content could be found. "As a consequence, this means that you have to make decisions as comprehensive as possible so that everything is included, otherwise you will constantly need new decisions."

Randomly discovered chats on Thomas Schmid's cell phone caused an uproar in Germany.

(Bild: Peter Tomschi, KRONE Kreativ)

Public prosecutor sees little added value
For Ritter, instead of prior authorization by a court, subsequent judicial control would have been sufficient, which according to the new regulation is only possible in the event of imminent danger - for example, if there is a risk that the data carrier or data will otherwise be lost, or if a fugitive suspect can be found in this way.

According to Ritter, personal rights must of course be protected: "But we must also ensure efficient criminal prosecution." Modern criminal prosecution would be inconceivable without the seizure of data carriers - but subjecting this to a comprehensive procedure would only prolong the proceedings and open up many disputes without added value.

The European Public Prosecutor's Office is an independent body of the EU. It is responsible for the criminal investigation and prosecution of offenses against the financial interests of the Union. In this context, Ritter also considers the new responsibility of the Legal Protection Commissioner in the Ministry of Justice for monitoring proceedings to be problematic. On the one hand, this is located in the ministry and not in the judiciary, and on the other hand, according to the latest version, it should also be responsible for applications from the European Public Prosecutor's Office. However, this would contradict EU law.

Ritter also believes that the fact that defendants in major proceedings will in future have the right to have "their" proceedings separated is also excessive. Especially in the complex investigations of the European Public Prosecutor's Office, there are sometimes 50 defendants - which would mean 50 different proceedings. "The proceedings will then become longer and more difficult, and without necessity."