Device search and the legal protection of the device holder
The amendment to the Coercive Measures Act in December 2025 transferred the decision-making on device searches to courts. A matter concerning a device search can be decided in chambers without a hearing if the court deems it appropriate. The hearing can be held using video conferencing. The matter is decided without hearing the holder of the device or others entitled to the device. The court's decision cannot be appealed. An official authorized to order detention may lodge a complaint against a negative decision – the device holder has no right to lodge a complaint.
Dr Markku Fredman published an article on the blog of the Finnish Procedural Law Association, which expresses concern about the weakening of legal protection.
As a result of the reform, the legal protection of the device holder weakens when the general provision concerning ex post control of device searches in Section 8:29a of the Coercive Measures Act is repealed in accordance with the Government Bill. There is thus a shift from ex post control to prior supervision, in which only the pre-trial investigation authority is a party. The device holder can therefore no longer justify in court why the conditions for a device search are not met: they are not heard in the regular procedure, nor do they have the right to appeal the court's decision to consent to the device search. In practice, higher courts will no longer receive device searches for review and will not be able to issue precedent decisions – applications for coercive measures are very rarely rejected, and even more rarely does the official applicant lodge a complaint about them.
The reform did not address the underlying crimes for device searches at all, even though it was precisely because of the principle of proportionality that the reform became necessary. As a result of the reform, debate about the conditions for device searches shifts to the main hearing of the criminal case. At that stage, the results of the device search have already been copied into numerous pre-trial investigation records delivered to the parties, the prosecutor, and the court – perhaps even to the public. In the future, there will therefore no longer be any effective legal remedy for the situation where the holder of a smartphone or computer claims that the examination of their device and the inclusion of information found there in the pre-trial investigation record was contrary to the principle of proportionality under the Coercive Measures Act and EU law.
The repealed Section 8:29a of the Coercive Measures Act thus contained a provision allowing the device holder to have a court retrospectively review a device search that had already been conducted and to argue in court whether the conditions for the device search were met, including from the perspective of the principle of proportionality. As a result of such applications, decisions have been issued including the decision of the Turku Court of Appeal on August 28, 2025, and the decision of the Helsinki Court of Appeal on October 22, 2025. The National Bureau of Investigation has applied for leave to appeal the Turku Court of Appeal's decision. In the future, such cases will therefore no longer reach court proceedings. District courts will unilaterally decide on the conditions for device searches without hearing the party, not knowing what arguments the device holder would invoke if they were heard in the matter. How can a court assess the harm caused by the use of a coercive measure if no one is explaining what kind of harm the device search would cause in an individual case?