Deleted data may be used in the context of a supplementary data readout be restored without the need for an additional order. This was the conclusion reached by the Federal Court in the ruling 6B_825/2019, 6B_845/2019 from May 6, 2021.
The background to the case was the indiscretions of a Zurich city police officer who, among other things, had passed on data from the police information system (POLIS) to the outside world. He defended himself before the Federal Supreme Court against the fact that his cell phone was evaluated a second time, including the data he had deleted. As grounds, he argued that the recovery would have had a new transmission process and is therefore considered to be Telecommunications monitoring was subject to approval (E. 2.1). A renewed evaluation without consent or order was just as inadmissible as if one were to act several times on the basis of the same house search warrant and “always investigate new things” wanted (E. 2.5.1 a.E.).
The Federal Supreme Court disagreed: there was no question of a secret surveillance measure pursuant to Art. 269 et seq. StPO, because the evaluation was specifically announced (E. 2.5.2). In addition, the physical seizure of digital communication devices is, in accordance with practice neither telecommunications surveillance nor retroactive collection of marginal data. (E. 2.3.3). Accordingly, the present case, where the data carrier has already been seized and inspected and its suitability as evidence has been established, has nothing to do with a new house search (E. 2.5.1). An additional order or consent is not required.
Before the lower court, the defense had complained that “it was still unclear which data had been recovered and which had not.” (OGer ZH SB170507, E. 3.4.4). In contrast, neither the Zurich Supreme Court nor the Federal Supreme Court saw any reason to change the Correctness of the data readout The fact that individual messages could not be recovered does not affect the usability of the remaining data (BGer, E. 2.6.3).
The complainant was also unable to derive anything in his favor from the Federal Data Protection Act, the Data Protection Act and the cantonal regulations (MERG/ZH, IDG/ZH): The POLIS data are secret even without explicit classification (E. 5.3) and the information he provided was neither obvious nor generally accessible (E. 5.5.1 f.). Moreover, the mere indication that, in relation to an unspecified offense No police findings a secret within the meaning of Art. 320 StGB (E. 5.3.3).
In the absence of contingent intent in one of the five counts, the Federal Supreme Court partially upheld the complaint and remanded the case for reassessment to that extent (E. 5.4.2 and 8).