The coalition agrees: – In this case, mobile phones can be confiscated

The previous regulations were approved by the Constitutional Court (VfGH) on January 1 last year. It was repealed in 2025 – partly because it allowed seizures without judicial approval. In addition, other points of the Code of Criminal Procedure will be revised.

According to the Constitutional Court, the current regulations on mobile phone security violate the right to private life and the law on data protection. In its ruling, the Supreme Court therefore provided guidelines for a new regulation: in addition to the judge’s reservation, it was also stated that, upon approval, a judge must also determine which data categories and content from which period and for which research purposes can be evaluated. In addition, the public interest in criminal prosecution and the fundamental rights of those affected must be weighed against each other.

The coalition now wants to comply with this with its new version. From January 1, 2025, there will be a new regulation on the “confiscation of data carriers and data” for the seizure of data carriers, such as smartphones or laptops or the cloud services accessible with them. According to a release from the Department of Justice, this applies to all devices that store data if law enforcement agencies want to access the data (for example, not if only a fingerprint needs to be stored on a smartphone).

Only “allowed” files can be evaluated
Thereafter, during data preparation within the approved period, only the approved data categories may be read, without any assessment of the content. A working copy must then be made of an original backup that will no longer be changed. This is to ensure that only the “allowed” data is actually evaluated. Only these are then sent to the public prosecutor’s office or the police.

If new suspicions arise, further data may be evaluated with new court approval. If evidence of other crimes is found in the processed data (so-called ‘random finds’), the public prosecutor can (or must) investigate this further after a new judicial request.

If there is imminent danger, the police can continue to physically confiscate the mobile phone, for example if someone is caught red-handed. However, for seizure, the Public Prosecution Service must go to court.

For legal protection, the legal protection officer of the judiciary may check whether an evaluation has actually been carried out in the context of the judge’s approval. Both the suspect and the victim can request this and the public prosecutor can propose this.

Victims and defendants can request an evaluation of the data
Both victims and defendants can also request an evaluation of the processed data. If a victim is aware of certain evidence on a mobile phone (for example a threat via WhatsApp), he or she can ask the public prosecutor to look for it exactly. The person whose data carrier has been seized also always has the option to view the results of the data processing.

“Two points were particularly important to me when it came to the new regulations for mobile phone security,” said Justice Minister Alma Zadic (Greens). “On the one hand, that we accurately implement the demands of the Constitutional Court – which has ordered us to introduce new regulations. On the other hand, we must continue to ensure investigations by the Public Prosecution Service and the criminal investigation service, especially in the areas of organized crime, terror and corruption.”

For Constitutional Minister Karoline Edtstadler (ÖVP), these are “long-awaited rules that significantly strengthen the rights of suspects in criminal proceedings,” she emphasized in a press release. “The security and evaluation of mobile phones and all data contained therein are designed in accordance with the technical conditions and in accordance with fundamental rights.”

Special responsibilities for domestic violence proceedings
In addition, other points in the criminal code need to be reformed. Victims are given the opportunity to take action against the withdrawal of a complaint; they are given access to the files from day one (just like the suspect). In addition, legal support for child witnesses to violence will be expanded and district courts and courts of first instance will in the future have special jurisdiction for proceedings against domestic violence.

Zadic: Biggest judicial reform of the past twenty years
When submitting an application for hiring, deadlines should be eliminated. Moreover, prosecutors should be relieved of this burden by simplifying the rules for initiating investigations. Higher regional courts, in turn, are obliged to publish final, legally binding decisions. For Zadic, the new rules are “the biggest judicial reform of the past twenty years.” This ensures that “the Austrian judiciary remains prepared for the challenges of the next twenty years and further strengthens the continued high level of public confidence in the judiciary.”