One finger, one tap - and the phone is unlocked. But what if that tap does not happen voluntarily? The Higher Regional Court of Bremen (OLG Bremen) has now ruled: the compulsory unlocking of a smartphone using the suspect's fingerprint is lawful under certain conditions (decision of 8 January 2025, case no. 1 ORs 26/24).
Background: Police unlock smartphone against the suspect's will
During a search of a residence based on the suspicion of distributing child pornographic content (Section 184b StGB (German Criminal Code)), a smartphone was found - directly next to the suspect, who had previously claimed not to own a functioning device. When he refused to unlock it voluntarily and attempted to evade the measure, the police officers restrained him and unlocked the device against his will by placing his finger on the sensor.
By judgment of 29 August 2023, the Bremerhaven Local Court (Amtsgericht) imposed a fine on the defendant for resisting law enforcement officers. The defendant appealed against this judgment. His appeal was dismissed as unfounded by the Bremen Regional Court (Landgericht) by judgment of 7 March 2024. The defendant then filed an appeal on points of law (Revision), arguing that, due to the privilege against self-incrimination protected under both criminal procedure law and constitutional law, he was under no obligation to cooperate in unlocking his mobile phone and that the measure was also disproportionate.
The case ultimately reached the OLG Bremen - raising the central question: may the state forcibly unlock a smartphone?
The OLG's decision: coercion is permissible - but not without limits
The OLG affirmed the lawfulness of the measure. It was covered by Section 81b para. 1 sentence 1 StPO (German Code of Criminal Procedure). That provision allows physical measures for the purpose of establishing identity - such as taking fingerprints. The provision is technology-neutral and also covers modern forms such as the biometric unlocking of smartphones.
In addition, Section 81b StPO contains a so-called annex competence which also authorises the use of direct force to carry out the measure in question - in this case, the compulsory placing of the finger on the sensor.
There is no violation of the constitutionally guaranteed privilege against self-incrimination (nemo-tenetur principle). That principle merely prohibits coercion to actively cooperate, not the passive toleration of evidence-gathering measures. The interference with the right to informational self-determination, as an emanation of the general right of personality, was also proportionate in the specific case.
Limits of access: not everything is permitted
Despite the general permissibility of the measure, the court sets out clear limits:
- The disclosure of passwords or PINs may not be compelled - this would constitute active cooperation and is therefore inadmissible.
- Unlocking the device does not automatically entitle the authorities to access the stored content. The stricter rules on search and seizure apply for that purpose.
- The use of physical force is permitted only to the extent necessary. Degrading or excessive use of force is prohibited.
Conclusion: significance for practice
The OLG Bremen's decision underscores the growing relevance of digital fundamental rights in the area of tension with state investigative interests. The decision strengthens the operational capacity of the law enforcement authorities - but binds them to strict legal requirements.
For suspects and defence counsel, the following applies: examine measures carefully, in particular with regard to proportionality and the admissibility of the evidence obtained.
A final tip: anyone wishing to protect sensitive data on their smartphone should, from a legal perspective, refrain from biometric unlocking and use a PIN instead.
In all matters of criminal law, attorney Ms Kumru Dursun will be pleased to advise and represent you.
