In a groundbreaking judgment, the Belgian Supreme Court (Court of Cassation) states that the investigating judge may order a suspect to provide the access code of his mobile phone. Hans Van Bavel and Charlotte Conings, our specialists in criminal law, shed a light on the judgment.
For several years now, the compatibility of the order to issue passwords and PIN codes to decrypt computers and smartphones and the defendant's right to remain silent is heavily discussed. Judges at first instance and in appeal have answered the question in different ways. Yesterday, the Supreme Court decided on the issue in a case involving a drug trafficker who was prosecuted for refusing to give the access code of two mobile phones found at his premises. The Court of Appeal of Ghent acquitted him in October. According to the Court of Appeal, the decryption order violated the right to remain silent and the prohibition of self-incrimination. However, the Supreme Court did not follow that line of reasoning.
The Court indicates that the right not to incriminate oneself and the presumption of innocence are not absolute and must be weighed against other rights such as the right to freedom and security and the prohibition of abuse of rights. The main purpose of the right is to avoid false statements made under coercion and thus unreliable evidence, a risk which does not exist in case of a decryption order, according to the Court. Moreover, the information received through coercion is limited (only a key/password/code) and in itself not incriminating. Moreover, the key is only used to make legible what the investigators themselves have found. The latter will, furthermore, have to prove that the accused knows the code. Finally, the right of the accused to defend himself with regard to the unlocked data remains intact.
According to the Supreme Court the obligation to decrypt is vital for truth finding. It refers, in that regard, to the general availability of encryption tools and the current state of technology that often makes it almost impossible to gain access to a secured computer system or encrypted data.
In brief, the Court speaks plainly: an investigating judge may order a suspect to provide information on the operation of computer systems and on the means of gaining access to them. A suspect who refuses to hand over the access code of his mobile phone risks criminal sanctions, including imprisonment.
In the context of this debate, a preliminary question was recently referred to the Constitutional Court. It remains to be seen whether the Constitutional Court will agree with the Supreme Court or whether, on the other hand, the divergent views will be confirmed at the highest level.
For a detailed analysis of the topic, see: CONINGS, C., KERKHOFS, J., “U hebt het recht te zwijgen. Uw login kan en zal tegen u worden gebruikt? Over ontsleutelplicht, zwijgrecht en 'nemo tenetur'”, NC 2018, afl. 5, 457-472 (www.nullumcrimen.be)