TIRANA, Jan 15 /ATA/ The Constitutional Court, in its ruling delivered in July 2025 and published on January 13 of this year, clarified the legal framework regulating the practice of the Special Structure Against Corruption and Organized Crime (SPAK) to seize and conduct surveillance of individuals’ mobile devices, irrespective of whether the individuals are formally implicated in ongoing investigations.
According to the Constitutional Court, with reference to the case of Onejda Ymeraj, no mobile device may be accessed without a judicial mandate.
“The Court considers that entrusting the Special Prosecution with execution does not imply leaving the final assessment to its discretion. Rather, execution must be understood as the technical implementation of the obligations arising from this judicial mandate and as a duty to initiate judicial oversight over the continued seizure of electronic data related to the investigation,” the Court stated.
“To this end, the Special Prosecution is required to submit to the first-instance court a formal petition seeking authorization to continue the seizure of data purportedly connected to the investigation, substantiating both the nexus to the inquiry and the necessity of retaining such data, while ensuring adherence to the procedural safeguards delineated in the reasoning of this ruling. The Court deems a three-month period imperative to safeguard the effectiveness of the decision and to prevent the undue extension of an intervention deemed disproportionate. This timeframe obliges the party concerned to undertake, within a reasonable period, the requisite measures to segregate, filter, and destroy any electronic data unrelated to the investigation, and to submit a petition for judicial oversight concerning the continued seizure of data pertinent to the investigation, in strict compliance with the procedural guarantees prescribed in the rationale of this judgment,” the Constitutional Court held.
The Court also noted that, in urgent cases, as an exception, the public interest may justify the seizure of an electronic device and, temporarily, the data stored on it in its entirety, on the initiative of the Special Prosecution Office (SPAK), without a prior court order, pursuant to Article 300 of the Criminal Procedure Code.
The Constitutional Court ruled that emergency seizures of electronic devices are allowed only under genuine, justified urgency and remain subject to prosecutor oversight and subsequent judicial review. Such seizures do not permit the Special Prosecution Office to access or analyze data relevant to the investigation without a judicial mandate, which must specify the exact procedures and ensure the intervention is strictly necessary. The emergency exception does not replace prior judicial authorization but is a limited, justified deviation from it.
Therefore, according to the Constitutional Court, “in urgent cases, the reason for the urgency must be specifically justified, and ex post judicial review must be conducted within a short timeframe, so that the intervention does not effectively take place without real verification of its necessity and limits.”
The Court also notes that, whether the measure is authorized prior to the seizure by the court or after the seizure in emergency conditions, the manner in which the data is accessed and selected is still subject to judicial oversight upon the prosecutor’s request. It is the court that ultimately decides on the seizure of electronic data relevant to the investigation and, when appropriate, mandates the destruction of irrelevant data or data that is subject to special legal protection, the Court stated.
In conclusion, the Constitutional Court partially accepted Ymeraj’s request and “found a violation of the confidentiality of correspondence, as well as the right to protection of personal data, for the portion that is not related to the subject of the criminal investigation.”
The Constitutional Court also mandated the destruction of copies of correspondence and personal data extracted from the claimant’s mobile phone that were unrelated to the criminal investigation.
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