The custody of data carriers and data pursuant to Section 115k StPO regulates how digital evidence in criminal proceedings must be secured and stored. This specifically includes original backups, working copies, non-returnable data carriers, and the results of data processing. The objective is seamless protection against unauthorized inspection and alteration, which is why access is generally inadmissible. Responsibility initially lies with the criminal police and passes to the public prosecutor’s office as the proceedings progress. Custody typically lasts until the final conclusion of the proceedings.

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Securing Original Backups and Working Copies

The securing of original backups and working copies forms the starting point for the custody of digital evidence. As soon as data is secured in the course of a seizure, two levels are created: the original backup as an unaltered object of evidence and the working copy for evaluation. Both must be strictly separated and technically protected so that neither unauthorized inspection nor alteration of the data is possible.

The duty to secure is directly linked to the seizure of data carriers and data. You can read more about this on our page regarding the seizure of data carriers and data.

In practical implementation, this means:

• Original data remains unchanged and is held exclusively for the preservation of evidence
• Working copies serve the evaluation without endangering the original
• Access is technically restricted and documented
• Any alteration must be excluded or traceable

This structure ensures that digital evidence retains its probative value throughout the entire proceedings. Even minor uncertainties during the securing process can later lead to inadmissibility.

Prohibition of Access and Inadmissibility of Inspection

The prohibition of access and the inadmissibility of inspection are among the strictest requirements for custody. In principle, the secured data may not be accessed. Inspection is only permissible in clearly regulated exceptional cases resulting from the systematic nature of the seizure.

The legal requirements for permissible access result from the regulations on seizure. You can read more about this on our page regarding the seizure of data carriers and data.

This clear restriction serves several functions:

• Protection of sensitive data, especially in the case of large and mixed data sets
• Avoidance of uncontrolled screening of irrelevant content
• Ensuring a fair trial, as only lawfully obtained data may be used
• Clear boundaries for investigative authorities, which safeguard subsequent judicial utilization

Particularly with digital data carriers, there is a significant risk that far more data is captured than is necessary for the proceedings. The prohibition of access prevents an uncontrolled expansion of the investigation.

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Custody of Data Carriers and Results of Data Processing

The custody of data carriers and results of data processing includes not only the physical storage media but also the structured data obtained from them. This ensures that the entire data set playing a role in the proceedings is placed under uniform protection.

Data processing constitutes a separate procedural step in which relevant content is filtered out from large volumes of data. You can read more about this on our page regarding data processing.

A clear differentiation applies to custody:

• Data carriers are kept in custody if a return is not possible
• Processed data remains secured, as it is part of the evidence
• Both are subject to the same protection standards as the original backup and working copy

This creates a closed system of evidence preservation. From the initial securing to the judicial utilization, the entire data set remains controlled and protected. This is the only way to use digital evidence reliably and admissibly in criminal proceedings.

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Jurisdiction of the Criminal Police until Reporting

The jurisdiction of the criminal police does not end with the securing of data carriers. As long as the evaluation of the data has not yet been completed, custody remains within their area of responsibility. This applies to the original backup as well as the working copies and all other data sets.

The norm clarifies that custody remains with the criminal police until the reporting on the final evaluation. During this phase, the operational work with the data takes place, which is why particularly strict requirements for security, access control, and documentation apply.

In practice, this means:

• The criminal police bear full responsibility for the custody
• All protective measures must be consistently maintained
• Access remains strictly limited and traceable
• The data must neither be altered nor inspected in an uncontrolled manner

It is precisely in this phase that it is decided whether digital evidence remains judicially admissible. Errors in custody have a direct impact on the probative value.

Transfer of Custody to the Public Prosecutor’s Office

With the final report, the responsibility for custody passes to the public prosecutor’s office. This transition marks the shift from technical evaluation to legal assessment and procedural control.

The jurisdiction changes, but the requirements remain as strict as ever. Even after the transfer, the data must continue to be secured, unaltered, and protected from unauthorized access.

In essence, this means:

• The public prosecutor’s office takes over full custody
• The existing security measures continue to apply unchanged
• Access remains clearly limited by law
• The data forms the basis for further procedural decisions

The transition does not serve to loosen the security, but rather to ensure the seamless continuation of evidence preservation in the next stage of the proceedings.

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Duration of Custody until the Final Conclusion of Criminal Proceedings

The duration of custody is clearly regulated: data carriers, original backups, and working copies must be kept until the final conclusion of the criminal proceedings. In this way, the law ensures that evidence remains available throughout the entire proceedings.

This duration is deliberately broad. Digital evidence can become relevant again at various stages of the proceedings, such as during court decisions or within the framework of legal remedies.

For practical purposes, this means:

• Custody does not end after the evaluation
• Evidence must remain permanently secured
• Even later procedural steps may require access
• The integrity of the data must be guaranteed in the long term

The long duration of custody serves a clear purpose: digital evidence must be available completely, unaltered, and verifiably at all times.

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Your Benefits with Legal Assistance

The custody of data carriers and data may seem purely technical at first glance, but it has significant legal implications. Errors in securing, unauthorized access, or deficient documentation can lead to evidence losing its admissibility or the proceedings taking a completely different direction. It is precisely at this point that legal representation is crucial.

An early legal assessment creates clarity and prevents crucial errors from going unused. Especially with complex data sets, a structured and legally sound approach is the key to effective protection of your interests.

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FAQ – Frequently Asked Questions

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