Access to a mobile phone or PC in the context
of a criminal investigation

August 2021 – Investigators have extensive powers in the context of a criminal investigation. They can - always with the authorisation of a judge - enter your premises, open your cupboards, check your finances. But do you have the right not to give them the password to your smartphone or laptop?

Investigation in the digital age

If you hear the word "criminal investigation", the first thing that comes to mind is probably the police coming in to empty your cupboards and drawers and seize certain items in the process.
In the case of financial crimes, this investigation often takes place in complete secrecy. Data is collected from financial institutions or Internet service providers.
Finally, the investigators knock on the door of the main suspects. The underwear drawer will probably be of less interest to them, the laptop and the smartphone much more.

Principle of non-incrimination

The principle of non-incrimination is contained in Article 6 of the European Convention on Human Rights (ECHR). Under this article, an accused person is not obliged to answer questions put to him or her by investigators. The right to silence is based on this principle of non-discrimination.

Obligation to cooperate

But our Criminal Code also contains a provision which states that the investigating judge "[may] order anyone whom he presumes to have special knowledge of the computer system which is the subject of the investigation (...) to provide information on the operation of that system and on how to access it...".
Anyone who refuses to cooperate is liable to imprisonment of between six months and three years or a fine of up to 160 000 euros.

Principle of non-discrimination vs. obligation to cooperate

How do this right and obligation interact? Can an investigator force you to hand over the password to a laptop, the pin code to a mobile phone, the encryption key to data... if it is established that by doing so you are 'incriminating' yourself?

At the beginning of 2020, our highest court, the Court of Cassation, gave its opinion on this issue.
In the case submitted to it, the defendant was asked to give the codes of two mobile phones that he had. However, he refused.
The Ghent Court of Appeal acquitted the defendant in 2019, precisely because he would be incriminating himself by giving the code.

But the Court of Cassation sees things differently: "the right to silence and the right not to incriminate oneself, as interpreted by the European Court of Human Rights, do not, however, prohibit a criminally sanctioned obligation to provide information from being imposed on a defendant with a view to obtaining material evidence which, as in the present case, is static, exists independently of his will, and as such has no self-incriminating nature; this situation is comparable to obtaining biometric data on the basis of which evidentiary material can be found. "(free translation)

The Court of Cassation also found that the police found the mobile phone at the defendant's home and did not use any coercion in this respect. It was also established that the defendant knew the codes. The Court therefore considers that the defendant should have given the codes.

The Constitutional Court

Parallel to the proceedings before the Court of Cassation, proceedings before the Constitutional Court took place (judgment no. 28/2020). The obligation to cooperate is contained in our national law, the principle of non-discrimination comes from the ECHR. It is a higher legal standard.

The Court gives a somewhat more nuanced answer. There is a difference between, on the one hand, asking for information on how the computer system works and how to access it and, on the other hand, asking the defendant to carry out certain operations on the computer system himself, such as operating it or searching for electronic data.
Asking for the code to access the information is not a right not to contribute to one's own incrimination. Actively participating in the operations carried out in the computer system, i.e. actively participating in the collection of evidence of the offence, does fall under this right.

The Constitutional Court also considers that the principle of non-incrimination does not prevent an accused person from being obliged to give access to the computer systems (laptops, mobile phones, data) with which he or she was working.

However, the case law leaves an opening for the defendant to prove that he does not have or no longer has the access code. It will be up to the judge to judge the credibility of this argument.

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