FLASH
Shkruar nga Eduard Halimi
Issues we can learn from Decision 44/2024 of the Constitutional Court on the Seizure of Phones and Electronic Devices and its Importance!
The Court's decision 44/2024 comes after its fair decision regarding SkyECC and EncroChat a year ago, as well as after the controversial actions of wiretapping of members of this court by SPAK - issues that I myself analyzed a year ago.
The case in question also mentions that on the seized phone (subject of this trial) communications of a member of the CC with the complainant's family were found (page 5), again raising the issue of conflict of interest and the exclusion of the judge (who had previously resigned).
This again raises the discussion about proportionality, but also about the possible pressure and complexity of the parties in the process.
It is important to note in advance that the seizure of the phone was made against a person who was not under investigation and without the presence of a lawyer (p. 17). The complainant handed over the phone with her consent and signed the minutes without objection. (My note: Never hand over the phone without a court order. Do not give verbal/oral consent and do not sign the minutes without consulting your lawyer.)
Now let's look at the key points of the decision that are of great interest to criminal practice:
1. The decision does not have retroactive effect for similar cases of seizures or investigations where no constitutional complaint has been filed previously or where the process has been completed. (P. 59) It is valid only for new cases. (My note: If you think your rights have been violated, file a constitutional complaint immediately, because they are decadent.)
2. The data contained in a mobile phone in use is personal data and is protected by Article 35 of the Constitution. (p. 20)
3. Communications on the telephone, WhatsApp, Signal, Facebook, etc. (via phone, computer or iPad, by SMS, email, etc.) are forms of electronic correspondence and equivalent to traditional correspondence with letters and envelopes, therefore protected by Article 36 of the Constitution. (p. 23)
4. Seizure of a phone/computer/iPad etc., as well as electronic data and correspondence (including copying and storing them) without a specific court order constitutes an intensive interference and a serious violation of Article 8 of the ECHR and Articles 35 & 36 of the Constitution. (pp. 24–26)
5. The person's consent to the surrender of the mobile phone without the presence of a lawyer does not constitute a waiver of the protection of Articles 35/36 of the Constitution. (p. 27)
6. Submission without objection of the minutes of seizure or examination of the phone/PC/laptop does not constitute a waiver of the rights of Articles 35/36 of the Constitution. (p. 28–29)
7. The "modus operandi" followed so far (seizure of the phone + taking and copying of data without judicial control) is an "intensive interference" in privacy and should only be done with prior authorization from the court. (p. 41–42)
8. Smartphones are not “ordinary objects”. The collection of data and their widespread access constitutes a “particularly serious” and sensitive violation according to the ECHR and the CC of Articles 8 ECHR and 35/36 of the Constitution. (p. 42)
9. The taking of the phone by the OPGJ without a prior judicial decision (even in emergency conditions) does not justify copying the data. The further process must be subject to judicial control "ex ante". (p. 42)
10. Even when the seizure has prior authorization from the court, the method of searching and selecting the data must be subject to judicial control at the request of the prosecutor and by decision of the court. (p. 43)
11. Seizure and retrieval of data must follow these rules:
a) be done in the presence of the individual and the lawyer
b) prohibit making copies without a court order
c) to separate data that is important from those that enjoy special legal protection
d) any intervention must have real judicial control
e) follow the principle of minimization (pages 48–49)
12. Copying data that is not related to the investigation seriously violates the confidentiality of correspondence and is not proportionate. This data should be destroyed even when the phone is seized for a long time by the prosecution.
This decision is a balanced justice decision: it strikes a balance between the public interest (the fight against organized crime and corruption) and private rights.
It has no retroactive effect, but serves as a strong guide for the future of criminal justice and human rights protection in Albania.
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