The Court of Justice of the European Union has ruled that the police may sometimes look at a suspect’s phone, even in crimes other than serious crimes. Clear rules must first be established nationally about this, and permission is usually required in advance from, for example, the court or the public prosecutor.
Until now, it was often thought that the police were only allowed to look at the suspect’s phone in cases of serious crimes. After all, there are strict rules regarding privacy in Europe, and the contents of a smartphone can reveal a lot about someone’s actions. But this limitation to serious crimes in such a ‘phone search’ could seriously limit the ‘investigative possibilities of authorities’, the European Court of Justice rules.
It is therefore also permitted in cases other than serious crime for the police to snoop in a suspect’s phone, although this is not allowed. According to the EU court, countries must have clear legislation for this, explaining in detail what the requirements are. Only in urgent cases should a telephone be immediately inspected by the police, in other cases permission must first be requested from, for example, the judge or another independent authority.
Court: ‘Don’t try to be sneaky, police!’
Moreover, the police are not allowed to secretly look at someone’s phone, or even try, the Court rules. The Court says this so clearly because of the reason for this ruling. That is a case in Austria, where a suspect was caught with 85 grams of weed. A minor offense that carries a one-year prison sentence in Austria, and therefore not the supposed serious crime that would be required for a phone search.
And yet the police tried to look at that suspect’s phone. Without success, but they should have still asked permission for that attempt and informed the suspect. That did not happen, so the Austrian court ruled European Court of Justice for clarification has asked.
In the Netherlands, access to a locked telephone may be obtained under mild duress, the Supreme Court ruled a few years ago. This concerns a phone that is locked with a fingerprint or facial scan, for example. The police may then hold the suspect’s finger on the scanner, for example. If a phone is locked with a code or password, the police cannot of course open it with light force. In this case too, such an unlocking under light coercion must be proportionate: the police are not allowed to do that just like that, and must often ask permission first.
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Source: www.bright.nl
