Summary

The 16 May 2012 Decision No. 3-1-1-57-12 of the Criminal Chamber of the Supreme Court refers to the principles on searches and seizures of computer data established in the European Convention on Cybercrime and points out that in such operations there is an obligation to take into consideration the principle of proportionality, meaning that it is only possible to take and seize the data or data media in the extent that is necessary for carrying out the proceedings and determining the circumstances of the subject of proof. The Supreme Court added that “if possible, the respective data should be copied, deleted from the suspect’s computer or made unavailable to them, but not confiscate the computer, computer system or data media as a whole” (clause 16) of the decision). The Supreme Court points out that the principle of proportionality should also be considered by the body conducting proceedings in the way the evidence is handled.

The symbolic significance of the decision of the Supreme Court lies in several important aspects that are exceptional in criminal cases involving child pornography (compared to other criminal cases in which most of the evidence may also come from the data media of a computer).

The article analyses the way lower courts have implemented the guidelines expressed in the judgment of the Supreme Court referred to above when assessing proportionality, and the kind of decisions made by lower courts on the evidence on which files with forbidden content have been saved.