Review pursuant to Section 110 of the Code of Criminal Procedure

Review pursuant to Section 110 of the Code of Criminal Procedure – What does that mean?

The review pursuant to Section 110 of the German Code of Criminal Procedure (StPO) is a criminal procedural investigative measure frequently carried out in connection with a search. It serves to determine whether documents or electronic data found are relevant as evidence in criminal proceedings.

In practice, such searches today often involve smartphones, laptops, tablets, computers, external hard drives, or USB sticks. Digital storage media, in particular, often contain large amounts of private data. Therefore, the law initially only permits a review of the data. Only then is a decision made as to which files or documents are actually admissible as evidence and may be seized.

It is important for those affected to know: A review is not the same as a seizure. These are two legally distinct measures with different requirements.

What is the review pursuant to Section 110 of the German Code of Criminal Procedure (StPO)?

According to Section 110 of the Code of Criminal Procedure, investigative authorities may examine documents, records and electronic storage media to determine whether they may be relevant to the investigation of a criminal offense.

This measure serves solely to select documents relevant to the investigation. Especially with extensive files or several terabytes of stored data, it would be practically impossible to make a final decision at the search location itself as to which information is relevant to the investigation.

The review therefore constitutes a kind of "preliminary examination". Only after its completion is a decision made as to whether individual items or data are to be seized or returned to the person concerned.

Requirements for review pursuant to Section 110 of the Code of Criminal Procedure

A review cannot be conducted arbitrarily. Rather, several legal requirements must be met.

a) Lawful search

The review of documents generally requires that a lawful search has been conducted beforehand. This is usually based on Sections 102 or 103 of the German Code of Criminal Procedure (StPO). If the search itself falls outside the legal requirements, this can also affect the legality of the subsequent review.

b)            Relevance of evidence

Not every document or file may be inspected. There must be concrete, factual indications that the documents or data found contain evidence that could be relevant to the criminal proceedings. A blanket or indiscriminate review of all private documents would be unlawful.

c) Proportionality

Like any coercive measure in criminal proceedings, the review of documents is subject to the principle of proportionality. The measure must therefore be appropriate, necessary, and proportionate to the seriousness of the offense and the purpose of the investigation. The more severe the intrusion into the privacy of the person concerned, the higher the requirements for its justification.

Review of electronic data carriers

With increasing digitization, the examination of electronic storage media has become considerably more important. Smartphones and computers today often contain thousands of photos, messages, emails, documents, and access data. Section 110 of the German Code of Criminal Procedure (StPO) therefore expressly permits the examination of electronic storage media. If an evaluation at the search location is not possible or would involve disproportionate effort, the data carriers may be taken away for later review.

However, this does not automatically mean that all stored data may be evaluated or permanently stored. Even with digital data, only information that is actually relevant to the investigation may be used.

Are the police allowed to take my smartphone or laptop?

This question arises particularly frequently in practice and unfortunately must generally be answered with "yes." If an on-site review of the stored data is not possible or would disproportionately prolong the operation, smartphones, laptops, or other data storage devices may be seized for later review.

The seizure is initially solely for the purpose of conducting an inspection. Only after this inspection is completed will a decision be made as to whether individual data or the device itself will be confiscated, or whether the items will be returned to the person concerned.

Especially with large datasets, the evaluation therefore regularly takes place on the premises of the investigating authorities.

Difference between inspection and seizure

In practice, the two terms are often confused. A review merely serves to determine which documents or data are potentially suitable as evidence. Seizure, on the other hand, means that the investigating authorities permanently secure specific items or data as evidence for the criminal proceedings. A review therefore typically precedes a seizure. However, not every review necessarily leads to a seizure.

What rights do those affected have?

Even though the investigating authorities are entitled to review the documents, the rights of the data subject remain protected. In particular, the following applies:

- The measure must be based on a legal foundation.

- It must be proportionate.

-          Confiscation prohibitions must be observed.

Documents or data that are not relevant to evidence may not, in principle, be retained permanently.

In certain cases, individuals bound by professional secrecy – such as lawyers, doctors, or clergy – enjoy special legal protection. Whether documents may be seized or used as evidence is then governed by the specific provisions of the Code of Criminal Procedure.

What legal remedies are available against the review?

Those affected do not have to accept a review without objection. Depending on the stage of the proceedings, various legal remedies are available.

If the review was carried out without a court order, a judicial decision can be requested pursuant to Section 98 Paragraph 2 Sentence 2 of the Code of Criminal Procedure.

However, a search warrant is usually obtained, so in practice the most important legal remedy is regularly the appeal under Section 304 of the German Code of Criminal Procedure (StPO). This allows a court to review whether the investigative measure was carried out lawfully.

If a seizure was ordered following the review, separate action can also be taken against this seizure.

If the measure has already been completed, it is also possible, under certain conditions, to have its illegality subsequently established in court. This is particularly relevant in cases of serious infringements of fundamental rights or a risk of recurrence.

Which legal remedies are admissible in a given case depends on the specific circumstances of the investigation.

Practical advice for those affected

Anyone affected by a search and subsequent inspection should act calmly. In particular, it is advisable to:

- Remain calm and offer no resistance.

- Examine the search warrant carefully.

- Document the review, insofar as this is possible.

- Do not make any voluntary statements on the matter.

- Contact a criminal defense lawyer as early as possible.

Especially when smartphones or computers are being seized, an early legal review can be useful to check the legality of the measure and possible legal remedies.

Conclusion

The review pursuant to Section 110 of the German Code of Criminal Procedure (StPO) is an important tool for law enforcement authorities to examine documents and electronic data for their evidentiary relevance. However, it constitutes a significant infringement on the rights of the data subject and is therefore subject to strict legal requirements.

In particular, the lawfulness of the search, concrete indications of evidence-relevant information, and the principle of proportionality must be observed. A review must be distinguished from a seizure: while a review merely serves to select potential evidence, a seizure secures this evidence permanently for the criminal proceedings.

Anyone affected by a review should know their rights and, if necessary, have the measure reviewed by a lawyer experienced in criminal procedure law.

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Frequently Asked Questions (FAQ):

What is the review pursuant to Section 110 of the German Code of Criminal Procedure (StPO)?

The review pursuant to Section 110 of the Code of Criminal Procedure allows the police and public prosecutor's office to examine documents or electronic data to determine whether they are relevant as evidence for criminal proceedings.

Is a search the same as a seizure?

No. The review is solely for the purpose of assessing the evidentiary relevance. Only then can a seizure potentially take place.

Is the police allowed to take my mobile phone for inspection?

Yes. If an on-site evaluation is not possible or would be disproportionately expensive, a smartphone or other data storage device may be taken along for later review.

Can I refuse to have the review?

Yes. Depending on the individual case, in particular an appeal pursuant to Section 304 of the Code of Criminal Procedure or other judicial remedies may be considered.