Facts
The Public Prosecutor's Office of the Republic and Canton of Geneva opened an investigation for fraud and forgery against B. In the context of this procedure, A.'s laptop, having economic rights to C. Inc., was seized on 15 December 2015. On 23 December 2015, a procedure for lifting the seals was initiated by the Prosecutor. The Tribunal of coercive measures of the Republic and Canton of Geneva (Tmc) decided to appoint a police officer, a member of the Computer Crime Unit (BCI), as an expert to make a copy of the computer data and analyze it.
A. and C. Inc. filed a criminal appeal against this decision, requesting the appointment of a neutral and independent expert to make a copy of the computer data contained in the sealed computer, as well as the resulting sorting. They also requested the opening of the seals in the presence of their lawyers.
Considerations
The Federal Tribunal considered that, in the context of a procedure for lifting seals, it is up to the Tmc to take the necessary precautions to prevent third parties, in particular members of the investigating and prosecuting authorities, from examining the sealed data without authorization or prematurely. The use of an expert can be a way to ensure the protection of the invoked secrets and ensure respect for personality rights.
However, the Federal Tribunal also considered that the mission given to the police officer is not limited to performing a simple technical manipulation, but implies having access to documents and taking notice of them. This is not compatible with the case law that requires that judicial sorting not be transferred or delegated to the investigating authorities in charge of the case.
The Federal Tribunal therefore admitted the appeal with regard to…