Mobile phone security – criticism of the procedure: “Very strange”

“It is very strange that such an important law is not given sufficient time for an assessment,” says Gernot Kanduth, chairman of the Judges’ Association. The provisions must be decided in the National Council before the summer.

Kanduth said he couldn’t say much about the content. They were not involved in the discussions. However, he fears that the judiciary will face a shortage of staff as a result of the new regulations. There are plans for fourteen additional positions at the public prosecutor’s offices and six at the courts. “Ten of the regional criminal courts will not have any additional functions,” Kanduth said in the lunch magazine Ö1.

The criticism from the president of the Association of Austrian Prosecutors, Elena Haslinger, was similar. “We were not involved in coming up with the design. A serious assessment can only be made in a written statement, but from a constitutional law perspective it is very worrying that a sufficient assessment period is then no longer possible.

There are fears that significant additional efforts will be required
She also feared that the procedures could now take longer. For example, the fact that the change now means that all people whose messages are stored must be informed afterwards would require a significant additional effort. “In drug trials, these would all be customers.” She is also concerned about the fact that not every prosecutor will have an additional position. The additional functions only affect public prosecutors and not senior prosecutors, meaning that the economic and corruption prosecutor’s office will not be expanded.

The proposed change will also lead to additional workload: the suspect can submit a request for a termination after two years because the procedure previously took too long; an investigation procedure was automatically started after three years; Haslinger also notes distrust towards the Public Prosecution Service. “Backups of the data must then remain with the criminal investigation department and the public prosecutor’s offices will not be given access. Data secured in an investigation ordered by the Public Prosecution Service is sometimes simply kept with the police and we are denied access.” Thursday’s initiative proposal came as a surprise to her.

Changes to the Code of Criminal Procedure
The so-called “Criminal Procedure Law Amendment Act” not only contains new rules on the confiscation of mobile phones, but also numerous other changes, especially in the Code of Criminal Procedure. This includes, for example, regulations on the termination of criminal proceedings, access to the files of victims and accused persons, or the separation of proceedings.

“In principle, the reform is very welcome, not only in the field of mobile phone security, but also in the field of the other measures,” said the president of the Austrian Bar Association, Armenak Utudjian. However, nothing can be said in detail yet as the draft was only received on Thursday evening and the extensive proposed legislation must now be examined. “It is all the more regrettable that there is no good assessment. I hope we have at least two weeks,” he agreed with Kanduth and Haslinger’s criticism.

Before the provisions are decided in the National Council before the summer, only a short evaluation by the committee is planned, which will last a maximum of two weeks. The last two plenary sessions and thus the resolution of the law are already scheduled for July 3 and 4. “I understand the criticism, I would have preferred if the law had been introduced earlier,” Constitutional Minister Karoline Edtstadler (ÖVP) admitted in the Ö1-Morgenjournal. The minister is not afraid that there are not enough responses: “The entire professional public has been dealing with this for a long time. I am confident that everyone will now look at this proposal with great interest and I am confident that the opinions coming here will be highly qualified and will be processed accordingly by the Ministry of Justice.”

Careful consideration of violations of fundamental rights

Edtstadler is not afraid that the planned change in the law could complicate the investigation. “If the violation of fundamental rights is so serious, the Public Prosecution Service must determine in advance what it needs to investigate this efficiently.” want to request for what purpose and from what period. “I have no doubt that the judges will approve it if it is requested in advance,” Edtstadler emphasized.

Unlike Justice Minister Alma Zadić, Edtstadler does not believe this will require more judges. At the beginning of the year, shortly after the Constitutional Court ruled that the current regulations were contrary to the Constitution, the Green Minister assumed that there would be a significant need for more judges, especially in the journalism department. “You can certainly take your time with these applications, and if there’s a risk of someone deleting things, there’s an imminent hazard arrangement.” In this case, the police can immediately confiscate a mobile phone and then initiate the necessary approval process.