Lawyers criticize draft for cell phone seizure

The Austrian Association of Public Prosecutors has expressed major concerns about the new regulations on cell phone confiscation. Professional representation specifically criticizes the institutional division of processing and evaluation of cell phone data.

This means that this part of the trial procedure has been completely removed from the control of the judiciary, which, according to a statement submitted today on the draft law, the review period ends on July 1.

The biggest concern is that in the future data backup and storage of data storage media will be carried out only by the criminal police’s own organizational units, which have not yet been created. Lawyers criticize the transfer of data backup to the criminal police’s corporate unit and to Interior Ministry officials bound by instructions.

Doubts over the constitutionality of the new regulation

It seems questionable how the proposed strict separation between the unit responsible for data processing and those responsible for conducting the investigation is to be achieved. Both will report to their respective departmental administration, state police headquarters and ultimately the home minister.

Prosecutors are skeptical that the new rule can be brought in line with the federal Constitution and the Code of Criminal Procedure. Accordingly, the Public Prosecutor’s Office should lead the investigation.

“Severe delay” was feared

There are fears of “serious delays in proceedings” because the public prosecutor’s office will not be able to verify the suitability of data carriers before they are secured. The Public Prosecutor’s Office can no longer verify that the requested data has been fully backed up and processed.

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From the litigants’ point of view, there is no need for organizational separation. The fact that investigative authorities will not be able to access data carriers or the entire database in the future cannot be inferred from the Constitutional Court’s ruling, which last year overturned the previous provision and necessitated the new regulation.

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