A mobile phone can hold years of conversations, photographs, documents and location data. The scale of this information explains why digital searches require procedural safeguards. Possession of a complete copy does not give investigators unrestricted permission to search it again.
Cabinet de Avocat Rotaru Rareș obtained a ruling from the High Court of Cassation and Justice declaring digital searches absolutely void and excluding technical reports, extracted digital material and records through which that material had subsequently been used. The ruling examined where preservation of data ends and a new search begins.
Copying a phone is different from searching it
Article 168 of the Code of Criminal Procedure permits a copy of the original data, commonly called a clone, to preserve its integrity. Making that copy is a technical operation. Searching means examining the information, identifying relevant material and collecting evidence within the judge’s authorisation.
In this case, the defendants, who were in pre-trial detention, attended the copying operation with their lawyers. The actual examination took place later without their participation. Their presence could have been secured, as it had been when the copies were made. The High Court held that failure to observe the applicable guarantee of participation under Article 168(11) attracted absolute nullity.
A technical report cannot disguise a digital search
Some operations had been described as computer forensic findings. The Court examined what investigators had actually done: searching the data, identifying information and extracting it as evidence. Performing those activities under another procedural label could not remove the safeguards governing digital searches. The substance of the operation mattered more than the document’s title.
Can investigators return to the complete clone?
The Court distinguished further analysis of evidence already lawfully identified and extracted from a renewed search of the complete phone copy. Looking again at a selected item does not necessarily involve another digital search. Reopening the whole clone to find additional evidence raises a different issue.
Interacting with a complete clone provides access to the same volume and kinds of personal information as searching the original device. Using a technical copy does not reduce the interference with privacy. The Court therefore treated access outside the conditions set by the judge as a digital search without the required judicial authorisation and excluded the resulting evidence.
Technical surveillance and searches have different safeguards
Access to an information system is a technical surveillance method, ordinarily carried out covertly. A digital search is the procedure for examining, discovering and collecting existing information from a system or storage device. Using the former when investigators already physically possess a phone or computer can raise concerns about circumventing the guarantees applicable to the latter.
The European dimension is illustrated by Case C-548/21, Bezirkshauptmannschaft Landeck. The Court of Justice recognised that police access to mobile-phone data may seriously interfere with fundamental rights and generally requires prior review by a court or independent authority and a proportionality assessment. That judgment does not decide the specific distinction between Romanian procedural methods, but it underlines the importance of control over access to a person’s digital life.
Exclusion changed the course of the case
The High Court ordered the unlawful evidence to be excluded and physically removed from the file. If the prosecution maintained the indictment, references to that evidence and reproductions of its contents also had to be removed. Following the ruling, the prosecution requested return of the case under Article 345(3), with the consequence provided by Article 346(3)(c).
This illustrates the practical importance of the preliminary chamber. A question about how phone data was copied and examined can affect a substantial part of the prosecution’s case. The decisive issue may be whether investigators were entitled to look for that information at that time and by that method.
Case reference: High Court of Cassation and Justice, Criminal Division, ruling no. 406 of 28 June 2022. This account describes the result reported by the practice and does not imply that every defect in a digital search leads to the same remedy.
Read also our case on defects in the referral to trial and find out about defence in cybercrime cases.