Facts
The Federal Court had to decide on a complaint in criminal matters, which was directed against the unsealing of a mobile phone. The complainant, [A.] , was being investigated on suspicion of sexual acts with a child and multiple instances of hard pornography. As part of the investigation, a house search took place on July 23, 2021, during which the complainant's mobile phone was seized. The complainant disclosed the access code to his mobile phone without being informed that he could refuse to testify and cooperate. The complainant argued that the complete unsealing of the mobile phone constituted a random search for evidence and that the intimate images and chat messages he had exchanged with his girlfriend should be sorted out in a judicial triage.
Considerations
The Federal Court first examined whether the complaint was admissible. It found that the lower court had decided as the sole cantonal instance and that the complainant was entitled to appeal. The Federal Court concluded that the complaint was admissible because the contested decision could cause an irreparable disadvantage.
The Federal Court then addressed the issue of the admissibility of evidence. It found that the question of the admissibility of evidence was generally reserved for the court of first instance. General evidence exclusion rules based on Art. 140 f. CrimPC were only to be considered in the unsealing procedure if the inadmissibility was obvious. The Federal Court concluded that the police officers had not informed the complainant before disclosing the code that he could refuse to testify and cooperate, but that this was not obvious and therefore no evidence exclusion rule could be assumed.
The Federal Court also examined whether the complete unsealing of the mobile phone constituted a random search for evidence. It found that the search of a mobile phone had to be proportionate…