EncroChat - Muegge Dr. Pitschel und Partner

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.

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