The Code of Criminal Procedure provides that an investigating judge can oblige a suspect to “disclose the method of accessing” an IT system. In a drug case, however, the Ghent Court of Appeal in October acquitted a suspect who was being prosecuted for refusing to give his cell phone access code for that charge. The Court of Appeal ruled that this obligation is incompatible with the right to remain silent and the prohibition of forced self-discrimination.
The Attorney General, however, appealed in cassation against that decision and was also proved right by the Court of Cassation. That ruled Tuesday that there are no “treaty provisions and considerations” or “any general legal principle based on it” that prevent a suspect from being obliged to disclose a password from his smartphone or computer.
The Court of Cassation emphasizes that the device in question must have been obtained “without the use of force on the person”. “In addition, it must be demonstrated that the accused knows the code,” it says.
Minister of Justice Koen Geens (CD&V) responded with satisfaction on Twitter. “The judgment of the Court of Cassation ensures a balance between the importance of the investigation and the privacy of the people. The police and the judiciary must have access to the data on criminals’ telephones. That way, relevant evidence can be collected. ”
Investigative judge Philippe Van Linthout also welcomes the ruling on Twitter. He compares it with a forced breath test, breath analysis, blood test, forced fingerprinting or DNA.