Long data carrier analysis: Courts recognize violation of fundamental rights

The digital search and preliminary seizure of data carriers are considered indispensable tools for law enforcement. However, practice shows that the analysis of seized data often takes months or even years. Numerous regional courts have ruled: These timeframes conflict with the fundamental rights of those affected, particularly the right to property, the right to informational self-determination, and the right to effective legal protection.

The courts draw a clear line here, as explained by criminal defense lawyer Jens Ferner. The responsible chambers therefore highlight that the duration of seizure is subject to strict constitutional and procedural limitations. The legal consensus is clear: the longer the analysis takes, the higher the hurdle for its legality must be.

The courts clarify, according to Ferner's overview, that preliminary seizure under Section 110 of the Code of Criminal Procedure (StPO) is not a free pass for unlimited retention of hard drives, mobile phones, and other IT devices and storage media. It merely serves as a part of the search that must be completed quickly, allowing investigative authorities to check the evidential relevance of found documents and data carriers. Subsequently, they must either be returned or judicially seized according to Section 98 StPO. While the StPO does not specify fixed deadlines for this "review," the legality of the measure always depends on a comprehensive case-by-case assessment.

Proportionality is Crucial

Key criteria for this proportionality assessment include the strength of the suspicion of a crime (serious crime vs. minor offenses), the volume and complexity of the data (terabytes vs. manageable amounts), the urgency of the analysis, for example in detention cases, and the intensity of the interference. The latter considers the value of the devices and the affected person's professional or private dependence on them.

The courts unanimously emphasize that the public prosecutor's office is responsible for a swift and proportionate duration of proceedings and must document this. Structural, personnel, or technical bottlenecks of the authorities must not be at the expense of the fundamental rights of the accused. This is a central principle, highlighted for instance by the Regional Court (LG) Gera, which considered the overload of authorities an inadmissible reason for a two-and-a-half-year delay.

Judges Intervene in Cases of Excessive Duration

The judicial decisions highlighted by Ferner define the limit of proportionality using concrete temporal and substantive standards: The LG Hamburg declared a four-and-a-half-year analysis period in a complex economic criminal case to be unlawful. The public prosecutor's office had failed to actively apply for seizure after completing the review or to return the data. The judges emphasized that a multi-year "state of limbo" is disproportionate even in complex cases and that a lack of clear distinction between a mere review and a detailed substantive analysis cannot be tolerated. The analysis reports created had to be deleted.

The LG Cologne overturned the seizure because the authorities left data carriers with a manageable 56 GB for two and a half years without starting the analysis. The LG Essen made a similar decision. It reprimanded the public prosecutor's office for relying solely on vague time estimates from the police instead of setting its own priorities and actively managing the process.

Even shorter periods can be disproportionate if the suspicion of a crime is weak. The LG Frankfurt therefore ordered the return of a laptop after more than four months because the suspicion was based solely on an intoxicated witness statement. In contrast, the LG Dresden considered a 14-month duration in a case concerning depictions of sexual child abuse to be justifiable because the public prosecutor's office immediately commissioned an external IT company. This provided a detailed justification for the necessity of a complete review. However, according to Ferner, a mere review must not escalate into covert data retention.

(jkj)