Constitutional rights of the individual when inspecting a mobile device: conflict of interpretations in the legal positions of the highest courts of Russia requires legislative permission

Introduction: based on the analysis of law enforcement practice and legal positions of the highest courts of the country, the article deals with the problem of limiting the constitutional rights of citizens when accessing the electronic memory of mobile devices (smartphones, cell phones) seized by the bodies of inquiry and preliminary investigation out of court. Mobile devices seized in the course of extrajudicial investigative actions (inspection, search in the premises, personal search of the detained suspect) are subject to further inspection and expert research, as a result of which the information available in the memory of the device is used in proving criminal cases. The existing practice allows the bodies of the preliminary investigation to limit the constitutional rights of citizens without going to court and without notifying him about the actions taken. Materials and Methods: the normative basis of the study is formed by the Constitution of the Russian Federation, criminal procedure legislation, legal positions of the highest courts of the country, objectified in the decisions of the Constitutional and Supreme Courts of the Russian Federation, regulating the list, conditions and grounds for limiting the constitutional rights of citizens. The methodological basis of the study was the General dialectical method of scientific knowledge, which has a universal character, as well as methods of logical deduction, induction, cognitive methods and techniques of observation, comparison, analysis, generalization and description. Results of the Study: in the course of the analysis of investigative and judicial practice, the requirements of regulations and legal positions of the higher courts, the rules for obtaining mobile devices in the process of law enforcement and working with information containing confidential information in their electronic memory are formulated. In the course of the inspection or examination of the objects under consideration, the constitutional rights of citizens to inviolability of the home, the secrecy of correspondence and negotiations, banking secrecy may be limited out of court. Findings and Conclusions: it is proposed to establish judicial control over the activities under consideration related to the treatment of electronic memory of a mobile device within the framework of previous or subsequent judicial control.