Court of Appeal: Dutch legal framework for searching smart phone violates right to privacy (Article 8 of the ECHR)

On 22 April 2015 the Court of Appeal for Arnhem-Leeuwarden found, briefly stated, that the Dutch legal framework for the searching of smartphones is not in keeping with the requirements of Article 8 of the ECHR. The Court of Appeal thereby subcribed to the defence of Marleen van Beckhoven and Thom Dieben, lawyers affiliated with JahaeRaymakers. The Court of Appeal found that, in light of current technical developments, a smartphone gives access not only to traffic data, but also to the content of communication and private information of the user of the smartphone, without any prior assessment of the subsidiarity and/or proportionality of the power in question. This was reason for the Court of Appeal to find that such a far-reaching power is involved that, also in light of Section 1 of the Code of Criminal Procedure, the general description of the power in Section 94 of the Code of Civil Procedure can nowadays no longer be regarded as a statutory regulation that can be considered sufficiently known and foreseeable when the power granted is exercised. It can therefore no longer survive the test of Article 8 of the ECHR. For that reason procedural rules had been irreparably breached in the Court of Appeal’s opinion. Although the Court of Appeal ultimately did not draw any legal consequences from that conclusion, that does not alter the fundamental position taken. See also: