Unlocking a cell phone by forcibly placing the defendant’s finger on the phone’s fingerprint sensor may be a crime based on the German Criminal Procedure Code. This is what the Bremen Higher Regional Court (OLG) said in a judgment of January 8, 2025 (ref. 1 ORS 26/24). Similar decisions in Germany were previously known only from local and regional courts.
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The reason for this decision was a search of the house during which a man did not want to unlock his cell phone. When a police officer grabbed the man’s hand to put his finger on the sensor, the officer tried to defend himself. Eventually he was pinned to the ground, the phone unlocked with his finger. For resisting law enforcement officers, the Bremerhaven district court imposed a fine, which was also confirmed by the Bremen regional court.
The punished person appealed against this. without success. The High Regional Court says, “The official act of the police officers who intervened by the use of direct coercion (…) was legitimate.” Article 81B Article 1 STPO (Code of Criminal Procedure) can be supported.”
This standard allows, among other things, the mandatory recording of photographs and fingerprints. The paragraph’s technology-free wording also allows for “equal measures to be taken”. Placing a finger on a sensor is a similar measure – and even less intrusive than taking fingerprints for permanent storage by investigating authorities.
teach divided opinions
The opinion of legal experts is divided on this. The Higher Regional Court sides with those in favor of coercion and refers to similar decisions of the Ravensburg regional court and the Baden-Baden district court. The fundamental right to informed self-determination is indeed being encroached upon, but only to a limited extent, which is reasonable. And the principle of non-incrimination in criminal proceedings only prevents the obligation to actively participate, but not the obligation to tolerate.
Furthermore, the state interfered with citizens’ fundamental right to confidentiality and integrity of information technology systems, but in accordance with the Constitution: according to the Federal Constitutional Court and the European Court of Justice (ECJ), strict requirements apply to secret access, but the current case Like not to open access. olg saysFurthermore, the general principle of proportionality must be applied, which also speaks in favor of coercive measures. The alternative would have been to make finger dummies, which would have been an even deeper encroachment on the rights of citizens.
Aside from unlocking, it should be evaluated whether data stored on the phone or accessible through the phone can be evaluated. However, this was not the reason for the fine and therefore was not the main issue for the decision on appeal. The OLG briefly refers to the search and seizure provisions in Articles 94 and 110 of the Code of Criminal Procedure.
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