Amendments to the confiscation and analysis of mobile data carriers in criminal proceedings

Few topics have sparked as much controversy in 2024 as the need to amend the regulations governing the confiscation and analysis of mobile data carriers and data found therein. This necessity arose from the Constitutional Court's ruling in December 2024, which deemed the current regime unconstitutional and specified requirements that the new regulations must meet by 1 January 2025. In October 2024, the European Court of Justice came to a similar conclusion in a different matter. After a first draft bill was made public – and subsequently withdrawn – a new draft bill was published in November. The new regulation is expected to introduce requirements such as obtaining a prior court order and more strictly defining the categories of data, the period and the data content to be seized. Additionally, it is likely to include nullity sanctions ("Nichtigkeitssanktionen") for cases where measures are not lawfully ordered and authorised. Notably, the current draft bill also includes other far-reaching amendments to the Austrian Code of Criminal Procedure. As the adoption of the amendments was still pending at the time of writing and the specific regulations to be implemented remained unclear, we look forward to updating you once the amendments have been finalised.

author: Oliver Michael Loksa