Notice: Seizure of Electronic Devices

In this text, we intend to provoke thought and offer suggestions on the reasonable period for seizure of a specific type of property: digital devices, such as mobile phones, computers, tablets, etc. ., collected because they are possible sources of evidence. This is because they can have the data extracted, making it possible to quickly restore the physical device (Material), without prejudice to investigations.

In this regard, the case law understands that the overrun does not simply result from the passage of a limit provided for by law, and it should be observed whether the circumstances of the specific case justify non-compliance. In other words, if there is “reasonableness”. Indeed, the excess of time that generates procedural consequences is the result of State negligence, and not, for example, of the complexity of a large-scale operation.

It turns out that when legal deadlines are set aside, other problems arise. The “complexity” of the facts is often used as a magic formula to dismiss overtime claims, without an effective assessment of the prosecution in the specific case.

The mentioned problem has greater relevance in the seizure of goods. Probably because they don’t have their own deadline, like for example the injunction for removal [1]. The only parameter is the period of fifteen days to file a complaint, in article 46 of the CPP, or even the time limits for removal, adopted by analogy. Indeed, the CPP affirms that the seized objects will not be returned before the final decision if they are interested in investigations.

For this reason, in almost all investigations dubbed “operation something”, the same thing happens: there are searches and seizures of various assets, which are restricted indefinitely, sometimes for years, until until there is a deposition, an acquittal or the final judgment of conviction.

In the meantime, the defendants made several requests for restitution, which were rejected in the name of “reasonableness”, without further reflection on the case. Then defendants appeal, often taking the dispute to higher courts, which are still reluctant to recognize the delay, even after a year or two from the initial claim – that’s about how long the case takes to reach a conclusion. . . In other words, the burden of analyzing several requests is imposed on the already overburdened judiciary.

This procedure applies even in the case of seized property which cannot even in theory have the confiscation pronounced, constituting simple sources of evidence which must be returned to the owner when they are no longer necessary for the investigation. In this case, it is a violent attack on the legitimate right to property, which can even affect the heritage of people who are not even the subject of an investigation or of the victim himself. Therefore, the good that is The source proof (and not element proof) should become useless for surveys as soon as possible. Your return is urgent.

In this context, something that seems particularly inconsistent to us is the seizure, in particular, of electronic devices (mobile phones, computers, etc.), whose data (content serving as evidence) can be extracted and mirrored, of so that the physical devices (materials) are returned. Once the stored data has been obtained, the continued apprehension of the devices is not necessary for the investigation, according to article 118 of the CPC. And in this perspective, the reasonable time for the return of these digital devices cannot be the same as for other pieces of evidence whose physical custody is essential until the conclusion of the investigations.

Reasonableness must consider not only the purpose of the investigations, but all of the circumstances surrounding the overtime claim, such as the actual diligence of the accusing state and the specific assets claimed. In the case of digital devices, the data of which can be duplicated, with restitution of the physical device without prejudice to the investigations, this measure must be provided for as soon as possible by the researchers. Otherwise, there is negligence and overrun.

It must be considered that mobile phones, computers, tablets, among others, are personal objects essential to contemporary life. They serve as instruments for the materialization of fundamental rights, such as access to information (Article 5, point XIV, FC) and communication – the latter cannot be suppressed even with regard to the detainee during the state of defence, see Article 136, § 3, point IV, of the Federal Constitution. Once these devices are seized, the individual is deprived of his access to information and communication, or, if he has the financial means, he spends a reasonable sum to urgently acquire new devices.

In addition, the seizure of computers can prevent the continuity of the economic activity of a company, because information necessary for its operation or even programs with a limited number of licenses are stored on the machine. This circumstance is even more serious in the case of companies that have several public contracts for the execution of essential services, such as health – sometimes the searches resulting from the instruction of one contract make the execution of all the others impracticable. .

Eventually, these goods quickly become obsolete and obsolete. Smartphones and laptops are overtaken by a new generation every year as new technological innovations emerge. In this way, the delay in arrest engenders a continued devaluation of the assets and, consequently, damage to the property of the owner – who, as already pointed out, can be a person who is not under investigation and even the victim himself.

Thus, it is unreasonable to maintain apprehension of these digital devices when data can be extracted with the rapid return of the Material. Even because the temporal extension of the arrest only generates a burden for the investigation: the prosecution bodies are responsible for the storage, control and preservation of the elements, unnecessarily consuming space and resources, since only the data contained in the devices has value for the investigation.

In fact, the authors of the text have already followed research in which computers were extracted and mirrored. instead of. In other words, it is not even necessary for the state to apprehend, move, guard, monitor and preserve the physical apparatus. Just extract the data. This procedure should be adopted whenever possible, as it involves immense savings. In addition, security is increased, as objects can be lost during transport and drops can corrupt data (especially on external hard drives and computers, since they contain mechanical parts that can be permanently damaged by sudden movements).

Therefore, in cases where the extraction of data cannot be carried out during the search, the principle of the reasonable duration of the process must be seriously considered. Mirroring should be done as soon as possible, with the return of the physical device. In this sense, even in large and complex investigations, it is difficult to conceive that it is reasonable to maintain the seizure of these digital devices for more than fifteen days (article 46 of the CPP), or even sixty days (article 131, paragraph I , of the CPR).

The process must not inflict more damage than necessary, especially with regard to personal and material precautionary measures, which seriously impair the liberty and property of the individual – including those unrelated to the crimes investigated. .

As already mentioned, in addition to having no use for the investigation, maintaining the apprehension for a long period does not interest any of the actors in the process. Indeed, the mirroring and return of goods has the consequence of saving shelves and the unnecessary work of police officers, lawyers, waiters, magistrates, magistrates and ministers.

In conclusion, non-compliance with deadlines does not automatically result in a deadline being exceeded for any seizure, and the existence of reasonableness should be assessed. However, specifically in the case of digital devices, from which data can be extracted, the mere statement of the complexity of investigations does not serve as a wild card to justify apprehension. eternal announcement. The most recommended thing is that the extraction is carried out during the search, thus eliminating the seizure of the object. If this is not possible, it seems to us that the reasonable time frame for mirroring and rendering Material it is precisely that of fifteen days, of article 46 of the CCP, provided for the offer of denunciation, or, analogically, the period of sixty days of article 131, paragraph I, of the CP.

[1] The kidnapping must be lifted if the criminal action is not brought within sixty days, in accordance with art. 131 of the CPP, or within ninety days, in the event of damage to the Public Treasury, see Decree-Law No. 3.240/1941.

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