Yavor Poptoshev v The Director of Public Prosecutions and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice Charleton
• Judgment Date: 24 November 2024
• Neutral Citation: [2025] IESC 47
• Docket Number: Supreme Court appeal number: S:AP:IE:2025:000030 [2024] IEHC 721 Dublin District Court charge numbers: 25468461, 25468486, 25468494

Between

Yavor Poptoshev

Applicant/Appellant

and

The Director of Public Prosecutions, The Commissioner of An Garda Síochána, Ireland and the Attorney General

Respondents

[2025] IESC 47

O'Donnell CJ

Charleton J

Hogan J

Collins J

Donnelly J

Supreme Court appeal number: S:AP:IE:2025:000030

High Court record number: 2024/155JR

[2024] IEHC 721

Dublin District Court charge numbers:

25468461, 25468486, 25468494

An Chúirt Uachtarach

The Supreme Court

Judicial review – Constitutionality – Criminal Justice (Theft and Fraud Offences) Act 2001 s. 49 – Appellant seeking to have s. 49 of the Criminal Justice (Theft and Fraud Offences) Act 2001 declared unconstitutional – Whether s. 49 of the Criminal Justice (Theft and Fraud Offences) Act 2001 is incompatible with Article 6 of the European Convention on Human Rights

Facts: On 9 January 2024, two smartphones and a computer, allegedly belonging to the appellant, Mr Poptoshev, were lawfully seized at his residence under a District Court search warrant. Asked by Gardaí for the passwords to access those, he refused. He was arrested. Later, the demand was repeated and again he refused. He was charged with an offence under s. 49(1)(c) of the Criminal Justice (Theft and Fraud Offences) Act 2001 for failing to comply with the lawful requirement to provide passwords. An application for prohibition of the prosecution and to have s. 49 declared unconstitutional came before the High Court by way of judicial review application. The appellant contended that the offence violated his constitutional right against self-incrimination. He argued that his right to privacy under the Constitution, and under the European Convention on Human Rights (the Convention) was infringed by intrusion into the digital space absent greater judicial scrutiny than was mandated by a search warrant issued ex parte, and thus without notice to him. The Supreme Court granted leave for a direct appeal from the High Court.

Held by the Court that, subject to the key safeguard that compelled evidence cannot be used against the suspect, s. 49 of the 2001 Act does not offend the Constitution; nor is the provision requiring a suspect from whom a computer has been lawfully seized, under a judicially-mandated search warrant, to provide a passcode to a computer, or to otherwise operate it, incompatible with Article 6 of the Convention. The Court held that the provision is a targeted response to the need to search the digital sphere as well as the physical contents of a person’s home or other premises under judicial warrant. The Court was dealing with the case which was sought to be prohibited by the judicial review; namely the prosecution for not revealing the passwords to the devices or not operating them when requested. The Court held that there was no basis for prohibiting the prosecution of the accused on those charges. The Court held that the section under which the prosecution was brought is compatible with the Constitution and with Article 6 of the Convention.

The Court upheld the judgment and order of the High Court.

Appeal dismissed.

Judgment of Mr Justice Charleton, delivered on Monday 24 November 2025

1 On 9 January 2024, two smartphones and a computer, allegedly belonging to Yavor Poptoshev, were lawfully seized at his residence under a District Court search warrant. Asked by Gardaí for the passwords to access these, he refused. He was arrested. Later, while detained and after receiving legal advice, the demand was repeated. Again he refused. He was consequently charged with an offence under section 49(1)(c) of the Criminal Justice (Theft and Fraud Offences) Act 2001 (the “2001 Act”) for failing to comply with the lawful requirement to provide passwords. These provisions make a refusal to reveal the password of a lawfully seized computer, or to otherwise cooperate in accessing it, a criminal offence. Yavor Poptoshev contends that the offence violates his constitutional right against self-incrimination. Further, he argues that his right to privacy under the Constitution, and under the European Convention on Human Rights, (“the Convention”) is infringed by intrusion into the digital space absent greater judicial scrutiny than is mandated by a search warrant issued, as here, ex parte, and thus without notice to him. Under the legislation, the choice of a suspect whose computer is lawfully seized is cooperation or not. Failure to disclose a password, or to otherwise operate a device, constitutes a crime carrying a potential penalty of six months imprisonment, if convicted. The serious offences under investigation for which the search warrant was judicially issued, on the basis of reasonable suspicion, carry considerably more serious penalties.

Background

2 The immediate backdrop is a major investigation by the Garda Economic Crime Bureau. This stemmed from the conviction of an individual in December 2023 on 10 out of 21 counts of major theft from various financial institutions and banks from 2006 to 2007. As part of continuing enquiries, a search warrant was secured from the District Court on 8 January 2024, under s 48(2) of the 2001 Act permitting a search of Yavor Poptoshev's residence. The search warrant granted by Judge Shalom Binchy was grounded on an extensive and detailed sworn information. This, the judge was satisfied, established reasonable grounds for believing that evidence in relation to the investigation of serious theft and fraud offences was to be found in Yavor Poptoshev's home and, further, that a search was a proportionate measure for the authorities to take. Specifically, the judge was satisfied, in accordance with this Court's ruling in The People (DPP) v Quirke [2023] IESC 5, [2024] 2 IR 1, [2023] 1 ILRM 225, that reasonable grounds were established by the applicant Gardaí to search not just in the physical space but also in the digital space; in other words, that it was reasonable not only to seize any computer devices as physical objects on which fingerprints or DNA or other trace elements might be found, but to actually operate the device so as to search its content and history. The physical search of the residence resulted in the seizure of a Google Pixel 4 phone, a Google Pixel 6 phone, and an Asus laptop. All these, Yavor Poptoshev allegedly acknowledged his ownership of, whether under caution against self-incrimination or not, the Court is not informed. The admission of such evidence is a matter for the trial judge. What is at issue here is the allegedly self-incriminatory nature of responding to the statutory demand for the passwords; whether, firstly, that in itself infringes the right to silence and whether, secondly, such answers could be used at any subsequent criminal trial for the major offences under investigation to prove that Yavor Poptoshev was the owner or user of the devices within which incriminating evidence might be found. In essence, the major argument is that if the requirement with the demand is complied with by Yavor Poptoshev, answering under threat of prosecution, what is on the devices would become compelled testimony. This is contended to be the essence of the asserted violation of his right not to incriminate himself. All of the devices, as is universal in these days, were password protected. In part, the warrant provided:

I AM SATISFIED THAT there are reasonable grounds for suspecting that—

evidence of, or relating to the commission of, an offence to which section 48 of [the 2001 Act]… applies, including but not limited to:

Financial documentation including bank documents, bank statements, payment cards, online login data.

Electronic devices including PC's, laptops, tablets, mobile phones, printers.

AND any other items held by electronic means is to be found at a place Apartment [Redacted] Co Dublin in the court district aforesaid.

3 During the search itself, Yavor Poptoshev was directed by Gardaí, under s 48(5)(b)(i) of the 2001 Act, to provide the passcodes to these devices. He was explicitly warned that failure to comply with this direction could result in criminal prosecution for keeping back that information. Yavor Poptoshev expressed uncertainty as to whether he was legally obliged to comply and stated that he wished to consult with a solicitor before making a decision. Gardaí permitted him to make a phone call to his solicitor. However, as the solicitor did not answer, a voicemail was left. Yavor Poptoshev then asked to call a different solicitor, but this request was declined. As a result of his failure to provide the passwords, it seems, during the search, Yavor Poptoshev was arrested under s 49(2) of the 2001 Act. He was taken to a Garda station, where he was then able to speak with his solicitor, who had become available, and receive legal advice. As communicated by him to the Gardaí, part of the legal advice he received from his solicitor was that s 48 did not apply to mobile phones as these, he asserted, are not computers.

4 His solicitor also informed the Gardaí that Yavor Poptoshev was willing to provide the passcodes for the devices, but only on the condition that Gardaí would undertake not to search the contents of the devices until a detailed and extensive agreement had been negotiated about the precise method and parameters of the search. A Detective Garda responded that he did not have authority to provide such an undertaking. Yavor Poptoshev then explained that he had been advised negatively by his solicitor and informed the Gardaí that he would not provide the passcodes. Following this refusal, the Gardaí proceeded to charge him with three offences under s 49(1)(c) of the 2001 Act. These charges relate to Yavor Poptoshev's alleged failure to comply, without lawful excuse, with the direction made under s 48(5)(b)(i) and, specifically, each of the three charges concerned the two smartphones and the laptop. While there were subsequent discussions at the Garda station,...