Search and seizure of electronic data and devices is another special evidentiary measure.
The rapid development of new technology has resulted in the storage of a significant amount of data in an electronic format in computers, smartphones and other devices. Therefore, certain legal provisions in the Criminal Procedure Act empower public authorities to search for and seize either electronic information storage devices like computers or particular electronic data.
These measures can be applied in the form of:
Investigative actions
Croatian Public Authorities can apply the measure of search and seizure of electronic data and devices in criminal investigations when legally authorized through a warrant or court order.
This authorization is granted based on probable cause and the direct relevance of the search to an ongoing criminal investigation. The urgency to preserve evidence and adherence to legal safeguards, ensuring proportionality and necessity, are crucial considerations. This measure is typically employed in cases involving serious crimes and when the alleged criminal activity poses a threat to national security.
Operational actions
During operational actions, seizure of electronic data in the form of downloading or copying data from electronic information storage devices such as computers, can be performed if:
- there is well-founded information about a particular persons’ connection to a crime or
- if there are threats to important interests of the State, for example, to state security
In applying the measure of search and seizure of electronic data and devices in criminal investigations, operational actions involve the practical implementation of the authorized procedure. These actions in the Criminal Procedure Act and the Police Act and relevant bylaws include a meticulously planned execution procedure.
What human rights violation may there be?
Although the search and/or seizure of electronic data and devices can be necessary in the interests of national security and/or for the prevention of disorder or crime, these actions interfere with your right to private life. However, not every interference in your private life amounts to a violation of human rights. Furthermore, the use of evidence obtained through illegal or unauthorized searches compromises the right to a fair trial.
Was the action carried out lawfully?
To evaluate whether an investigative or operational action against you was carried out lawfully and whether your privacy has been sufficiently respected, see the questions below. If, in your situation, your answer to one of these questions is negative, your privacy and right to a fair trial may have been violated. In such a case, you have the right to complain. Read more about how to complain.
The action should have a basis in law. In Croatia, all investigative actions are listed exhaustively in the Criminal Procedure Act. The law also contains:
- Certain requirements concerning the conditions under which these actions can be performed. Thus, the decision of the investigative judge or the public prosecutor is usually required in the case of investigative actions. There are 8 special evidentiary actions and are divided 4x4. Some of them are authorized by the investigative judges and some by the public prosecutor.
- The procedure for how to challenge the investigative or operational actions taken. You can read more about the safeguards in the complaint procedure.
If the communications monitoring is not allowed by law, the action is not lawful and your right to private life and fair trial may be violated. Please also examine the other question to investigate the length of your claim.
The search and seizure have to be based on a decision issued by a competent authority, usually the investigative judge, as provided by law. The content and scope of the decision has to be reasonably limited. If it authorizes the seizure of electronic devices and data in a general and unlimited manner, without precisely prescribing the kind of evidence needed, the decision is couched in terms that are too broad and was, therefore, not made in accordance with the law. If the search and/or seizure is not allowed by law, your right to private life may be violated. There is no need then to examine the other questions.
The search and/or seizure of electronic data and devices has to be aimed at the protection of legitimate interests. Usually these legitimate interests are:
- the prevention, detection and prosecution of crime
- the prevention of disorder
- the protection of other persons
- ensuring the security of the State against internal and external threats
If the measure taken does not serve a legitimate aim, the investigative or operational action is not lawful and your right to private life may be violated. There is no need then to examine the other criteria for lawfulness.
The search and/or seizure of electronic data and devices should be necessary and suitable for the protection of other legitimate interests.
The following questions should be asked to evaluate the necessity:
- Are there relevant and sufficient grounds to believe that the electronic devices or electronic data contain the evidence needed?
- What is the severity of the suspected criminal offence? Is search and/or seizure not too intrusive a means to be performed? This would be the case if the criminal offence was of minor importance.
- Are there other alternative and less restrictive methods available to obtain the needed evidence?
- Would the establishment of the facts by another method be unsuccessful or considerably more difficult?
Both competing interests – your right to private life and the legitimate interests of the State or other persons - have to be balanced against each other and a fair balance must be found. Public authorities have to give sufficient arguments as to why the interests of others outweighed your rights and the other way around in the particular case. In doing so, the following questions should be assessed:
1) How intrusive was the nature of the investigative or operational activity in question?
The level of intrusion can be lower or higher depending on different facts. For example, how large was the amount of your data searched and/or seized and what was the nature of this data? The other competent authorities to which the data has been communicated and under which conditions, should also be assessed.
2) Is there sufficient protection provided against the possible abuse or misuse of the actions and the information obtained?
The implementation of the investigative or operational action taken should be reviewed by a competent body that is independent in its decision making from those authorities carrying out the activities. The law has to provide an effective remedy for you to challenge the lawfulness of the investigative and operational activities. Read more about how to complain and protect yourself in such situations.
3) Were the copies of the seized electronic data deleted as soon as they were no longer needed to achieve the legitimate aim?
The retention of such private information longer than was actually needed is not proportional and thus is unlawful.
If the authorities have failed to properly balance your interests against those of others and therefore the interference is more serious than necessary, your right to private life may be violated.