With developments in digitalisation, the course of criminal investigations has also changed significantly. In previous years, house searches and confiscations were focused on physical files and documents. Nowadays, the main target of such investigation measures is data, stored on various sorts of devices: the police search for notebooks, hard drives, flash drives and phones. This regularly raises some privacy concerns in criminal investigations, and Austria's Supreme Court has clarified several important questions in a recent decision.
All of the abovementioned storage devices have one thing in common: from first sight it is not possible to determine whether the information stored on them might be relevant to the ongoing investigation or whether highly private and personal information is contained on them as well.
This is particularly true for mobile phones: almost everyone uses their phone for private purposes, taking private pictures and using messaging services with private, personal contacts. On the other hand, investigators understandably are interested in phones, as these daily companions of nearly everyone are very promising for their investigations in most cases.
This raises several issues. How should private data which is located on these devices and not at all related to the ongoing investigations be handled? Is it possible for investigators to also browse through such files and if yes, under which conditions? And should these files become part of the criminal file which is – although generally confidential – accessible to victims and other suspects of the crime?
AUSTRIAN SUPREME COURT CONFIRMS PREVAILING DOCTRINE
In a recent decision, the Austrian Supreme Court (11Os56/20z) defined some boundaries in this regard. According to this decision, all facts which are relevant to the subject of the investigation must be recorded in the criminal files of the authorities. Information however, whose relevance to the subject matter is not apparent may neither be investigated nor recorded in the investigation files nor left in the files, in the case that the information was introduced despite this rule. Likewise, the police, the public prosecutor's office and the courts may not process personal data that is not necessary within the scope of their tasks.
With this decision, the Austrian Supreme Court confirmed the existing view of the prevailing doctrine. The clarification however will ease future objections of suspects facing a comparable situation.
