Mobile phones are the most personal information carriers of our time—they contain communications, photographs, location data, access to bank accounts, and health information. Access by law enforcement authorities (hereinafter “LEAs”) to this data therefore constitutes a significant intrusion into the right to privacy, which must be carefully regulated and justified.
Recent decisions by the European Court of Human Rights (hereinafter “ECHR”), the Court of Justice of the European Union (hereinafter “CJEU”), and Slovak courts have significantly advanced the interpretation of this area.
A mobile phone may be seized only if it constitutes evidence relevant to criminal proceedings.
The standards for seizing mobile phones have been defined by the case law of the ECtHR, with the ECtHR regularly emphasizing that:
- access to data constitutes a fundamental intrusion into privacy, comparable even to a home search,
- the intrusion must be based on law,
- the interference must be proportionate, and
- carried out with adequate procedural safeguards.
The ECtHR considers situations to be unproblematic when a mobile phone is seized during a home search or other search ordered by a court, or when a person voluntarily hands over the device and access codes. In such cases, it is not necessary to request a separate warrant or consent from the court or the prosecutor’s office to seize the mobile phone. In other words, when a mobile phone is seized during a court-ordered home search, consent to access the device is implicitly contained in the warrant.
The problem arises in cases where a mobile phone is seized outside the context of a home or other search without a court warrant. In such a case, a warrant from an “independent authority”—which may be a court or a prosecutor—is required. The ECtHR also emphasized this procedure in one of its most recent decisions (Mukhtarli v. Azerbaijan and Georgia dated September 5, 2024), where paragraph 219 states: “The Court considers it necessary to reiterate that the examination of the contents of a mobile phone—which constitutes a measure seriously interfering with a person’s private life and correspondence—cannot be in accordance with Article 8 of the Convention if it is left to the investigator’s unrestricted discretion; Article 8 requires a warrant to be issued by an independent authority where there is an interference with a person’s privacy (see Dumitru Popescu v. Romania (No. 2), No. 71525/01, § 71, 26 April 2007, and Trabajo Rueda, cited above, § 35).”
Paragraph 221 further states that “An important point is that, according to the judgment in question, the absence of a prior judicial order may be offset by the availability of ex post facto judicial review of the lawfulness and necessity of the measure in question. In particular, the review of a measure violating Article 8 by national courts provides the person concerned with an adequate remedy, provided that the judge effectively reviews the legality and justification of the contested measure and, where appropriate, excludes the evidence gathered from the criminal proceedings (see the Brazzi judgment, cited above, paras. 44–45).
Thus, the absence of a prior judicial order may be balanced by subsequent judicial review (ex post factum).
The key principles regarding the seizure of a mobile phone will therefore be:
- the authorization of a court or an independent authority;
- proportionality of the intervention;
- distinction between the seizure of the device and access to the data.
In contrast, the CJEU has, for the first time, distinguished the seizure (CJEU Decision C‑548/21 of October 4, 2024) of a mobile phone as a tangible object from access to the data stored therein. The fact that a phone is seized (e.g., during a home search) does not automatically authorize the investigator to unlock the device, extract data from it, and analyze its contents. The CJEU thus formally distinguished between:
- the seizure of a mobile phone as an object,
- access to the data (content) on the mobile phone.
Access to data is, according to the CJEU’s interpretation, classified as:
- an interference comparable to a home search;
- an interference requiring prior judicial authorization or the consent of another independent authority;
- an interference that must be duly justified and must respect the principle of proportionality, meaning that only data relevant to the criminal proceedings may be seized.
It should be noted that the CJEU Decision C‑548/21 of October 4, 2024, is a relatively new decision, and how it will be gradually applied and interpreted in the case law of Slovak courts remains to be seen.
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Resolution of the Supreme Court of the Slovak Republic, file no. 5 Tdo 7/2017 (R 47/2017) of November 26, 2014:Data stored on a mobile phone is not computer data within the meaning of Section 90 of the Criminal Procedure Code, despite certain common technical parameters.
Resolution of the Supreme Court of the Slovak Republic, Ref. No. 2 To 9/2014 (R 29/2018) dated November 26, 2014: In the expert examination of seized mobile phones, a separate order for the preservation and production of computer data pursuant to Section 90 of the Criminal Procedure Code is not required. Within the meaning of the order under Section 90 of the Criminal Procedure Code, this refers to data stored via a computer system (not a mobile phone), which the person in possession or under whose control shall preserve, allow to be produced or copied, prevent access to, removes it from the computer system, or releases it for the purposes of criminal proceedings by a person in whose possession or under whose control it is, without it being necessary to request the release or seizure of the computer itself. The seizure of computer data pursuant to Section 91 of the Criminal Procedure Code is possible only as part of the seizure of an item, which, however, is preceded by a request for the surrender of the item pursuant to Section 89a(1) of the Criminal Procedure Code and not by an order pursuant to Section 90(1)(e) of the Criminal Procedure Code. The surrender and seizure of an item is a traditional criminal procedural institution; after the surrender or seizure of a mobile phone, it is not necessary to supplement this with an order to surrender computer data pursuant to Section 90 of the Criminal Procedure Code, because once the item has been surrendered, the relevant data is already secured in a legally compliant manner (following verification by expert evidence).
Pursuant to Section 91 of Act No. 301/2005 Coll., the Criminal Procedure Code, as amended (hereinafter “CP”), the following applies: “If, for the purposes of evidence, it is necessary to preserve stored computer data, including operational data, that has been stored via a computer system, the presiding judge, or the prosecutor prior to the commencement of criminal proceedings or during the preliminary investigation, may issue an order—which must be justified by the factual circumstances— to the person in whose possession or under whose control such data is located, or to the provider of such services, to
- preserve such data and maintain its integrity,
- allow for the creation and retention of a copy of such data
- prevent access to such data
- remove such data from the computer system,
- disclose such data for evidentiary purposes.
