In spring 2020, French and Dutch law enforcement authorities succeeded in penetrating and ultimately dismantling the system of the communication provider EncroChat – resulting in the initiation of thousands of investigative proceedings, including in Germany.
EncroChat was a communication provider that offered so-called crypto phones and an infrastructure for end-to-end encrypted OTR instant messaging (EncroChat) and IP telephony (EncroTalk).
The advantage for the users of the crypto service was obvious: By using encrypted chats, illegal transactions could be initiated, negotiations conducted, transport coordinated, etc., without the involved parties having to meet and without them having to worry about being intercepted.
Due to the resulting feeling of being in a secure place hidden from investigative authorities and being able to remain anonymous, communication with the supposedly wiretap-proof crypto phones was often uninhibited and without any caution, so that investigative authorities gained comprehensive insights into the business and structures of organized crime by infiltrating EncroChat.
Europol announced in June 2023 that, as a result of investigations into drug offenses, but also murder plots, corruption, arms trafficking, robberies, and money laundering, more than 6,500 people had been arrested and almost 9 million euros seized.
Furthermore, 30.5 million pills of chemical drugs, 103.5 tons of cocaine, 163.4 tons of cannabis, 3.3 tons of heroin, 971 vehicles, 271 properties/real estate, 923 weapons, 21,750 rounds of ammunition, 83 boats, and 40 aircraft were seized.
But the question arises: Are German courts allowed to convict someone based on data from the encrypted communication system EncroChat?
In the ongoing proceedings, the defense repeatedly questioned the admissibility of EncroChat messages as permissible evidence.
Among other things, they criticized the collection of data by European investigators as unlawful. The specific procedure of the French and Dutch authorities remained unclear, making it uncertain whether the findings obtained should not be subject to a prohibition on the use of evidence – arising from the possible disregard of procedural regulations.
In early March 2022, the 5th Criminal Senate of the Federal Court of Justice ruled that the findings obtained from EncroChat are generally admissible (Decision of 02.03.2022, Ref. 5 StR 457/21 ). According to the BGH, the decrypted chats are admissible as evidence if they serve to clarify serious crimes. A prohibition on the use of evidence does not exist “under any legal aspect“. Violations of human rights or European fundamental values or fundamental rule of law requirements were not present, according to the BGH.
The Federal Constitutional Court has now ruled that a constitutional complaint, which was directed against judgments concerning the use of EncroChat data, is inadmissible (Decision of 09.08.2023, Ref. 2 BvR 558/22 ). The Federal Constitutional Court did not accept seven other similarly structured cases for decision.
However, the Federal Constitutional Court did not rule fundamentally on the use and admissibility of EncroChat data.
The court emphasized in this regard that the constitutional questions in connection with the evaluation of transmitted EncroChat data have not yet been decided on the merits. Five further constitutional complaints regarding the question of admissibility are currently pending before the Federal Constitutional Court. In addition, the Berlin Regional Court has meanwhile submitted fourteen questions to the ECJ.
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