Exploitability of EncroChat data?

In the spring of 2020, French and Dutch law enforcement agencies managed to penetrate the system of the communications provider EncroChat and ultimately break it up – resulting in the initiation of thousands of investigative proceedings, including in Germany.

EncroChat was a communications provider offering so-called crypto phones and an infrastructure for end-to-end encrypted OTR messaging (EncroChat) and IP telephony (EncroTalk).

The advantage for the users of the crypto service is obvious: through the use of encrypted chats, it was possible to initiate illegal transactions, negotiate, coordinate transportation, etc., without the need for the people involved to meet and without having to worry about being intercepted.

Due to the feeling conveyed by this that they were in a safe place, hidden from the investigating authorities, and could remain anonymous, communication with the supposedly tap-proof crypto cell phones often took place uninhibitedly and with the abandonment of all caution, so that the investigating authorities gained comprehensive insights into the business and structures of organized crime through the infiltration of EncroChat.

The investigative agency Europol had reported in June 2023 that more than 6,500 people had been arrested and nearly 9 million euros had been seized so far as a result of investigations into drug-related crimes, as well as assassinations, corruption, arms trafficking, robberies and money laundering.

Other seizures include 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 plots of land/real estate, 923 weapons, 21,750 pieces of ammunition, 83 boats and 40 aircraft.

But the question arises: are German courts allowed to convict someone based on data from the EncroChat encrypted communication system?

In the proceedings taking place, the defense repeatedly questioned the usability of the Enchrochat messages as admissible evidence.

Among other things, they criticized the collection of the data by the European investigators as unlawful. The concrete procedure of the French and Dutch authorities was unclear, so that it remained uncertain whether the findings obtained would not have to be subject to a ban on the use of evidence – resulting from the possible disregard of procedural requirements.

At the beginning of March 2022, the 5th Criminal Senate of the Federal Court of Justice ruled that the findings obtained from EncroChat could in principle be used (decision dated March 2, 2022, ref. 5 StR 457/21). According to the BGH, the decrypted chats are admissible as evidence if they serve to solve serious crimes. A ban on the use of evidence does not exist “from any legal point of view”. There were no violations of basic values under human or European law or of fundamental requirements of the rule of law, according to the BGH.

The Federal Constitutional Court has now ruled that a constitutional complaint directed against judgments concerning the use of EncroChat data is inadmissible (decision dated August 9, 2023, file no. 2 BvR 558/22). The BVerfG did not accept seven other similar cases for decision.

However, the BVerfG did not rule in principle on the use and exploitability of EncroChat data.

In this respect, the court emphasized that the constitutional issues in connection with the evaluation of transmitted EncroChat data had not yet been decided on the merits. Five further constitutional complaints on the question of usability are currently still pending before the BVerfG. In addition, the Berlin Regional Court has in the meantime referred fourteen questions to the ECJ.