The Kosovo Law Institute (KLI) has published report “Examination of telephones in criminal proceedings”, which analyzes the legal, constitutional basis in the Republic of Kosovo and the standards of the European Court of Human Rights (ECHR) regarding the seizure and examination of telephone equipment in criminal proceedings in Kosovo.

The announcement states that the report responds to the recently opened public and professional debate regarding the question of whether a special judicial decision is required for the examination of data on seized phones, or whether authorization from the State Prosecutor is sufficient after the legal seizure of the device by court decision.

“In this analysis, IKL examines in detail the provisions of the Criminal Procedure Code of the Republic of Kosovo (CPCRK), especially the distinction between wiretapping as a special investigative measure and the examination of evidence obtained from seized devices, as well as the compatibility of these provisions with Article 36 of the Constitution of the Republic of Kosovo and with the relevant jurisprudence of the ECHR.

The main findings of the report show that, according to the KPPRK, the competence to authorize the examination of seized telephone equipment belongs exclusively to the State Prosecutor, while the court has competence only for the seizure of equipment and not for their examination, as for the latter there is no legal basis for issuing a judicial decision," the KLI announcement states.

The report also finds that data extracted from a legally seized telephone device does not constitute "wiretapping", as wiretapping is related to the surveillance of communications in real time and is regulated as a special investigative measure, which always requires a judicial decision.

On the contrary, IKL emphasizes that the examination of seized evidence is regulated by other legal provisions and various constitutional and international standards.

KLI assesses that changing judicial practice on the basis of the same law creates serious consequences in practice, risking the failure of criminal cases where key evidence was obtained through the examination of computer equipment and creating legal uncertainty for the past, present and future of criminal prosecution.

“The report emphasizes that, in case of a dilemma about the constitutionality of the provisions of the CPRRC, the courts should turn to the Constitutional Court, and not avoid implementing the law through direct constitutional interpretations.

"The report concludes with clear recommendations for the judiciary, calling for consistent implementation of the law, a clear distinction between wiretapping and examination of digital evidence, and interpretation of legal provisions in harmony with the Constitution and the jurisprudence of the ECHR," the announcement states. /Telegrafi/

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