Thousands of arrests, millions of dollars in seizures – all thanks to evidence from Encrochat crypto phone surveillance. The European Court of Justice has now ruled on the use of this data in German courts.
It was a sensational success for French and Dutch investigators: in 2020 they managed to crack the communications system of the Encrochat company. Encrochat had offered cell phones including software that was supposed to be tap-proof. These were used by organized criminals in more than 120 countries for drug and arms deals, but also for murder contracts and money laundering.
The investigators from France were able to technically monitor communication via Encrochat. With the help of the large amount of data from Encrochat surveillance, several thousand people have been arrested and around 900 million euros confiscated. German investigators also had access to the data.
“It’s about a very large amount of data, namely millions of messages to several thousand users in Germany,” says Benjamin Krause, senior public prosecutor in Frankfurt am Main at the Central Office for Combating Internet Crime. So far, over 2,000 investigations have been initiated against Encrochat users.
A Bolt cutters doesn’t make a bicycle thief
Krause explains why the Encrochat data is so important for German investigators. “Encrochat was considered tap-proof among suspects and that’s why the preparation and commission of serious crimes were discussed openly,” said the lawyer. “For example, when and with whom and how much narcotics were traded. And that was basically criminal gold for us, so that we could prove individual crimes.”
Most German courts saw no legal problems with using the Encrochat data as evidence in German criminal proceedings. However, defense lawyers are critical. They say: Through the detour to France, the German investigators received communication data with the Encrochat data that they were not even allowed to collect under German law.
The French monitored more than 30,000 Encrochat users across the board. That’s like thinking everyone who has bolt cutters at home is a bicycle thief. The use of data is only proportionate if there is a concrete suspicion that everyone being monitored is involved in a serious crime.
Different Opinions to the BGH and the regional court
However, the Federal Court of Justice did not follow this and declared the use of data permissible. For the BGH it depends on the legal situation in France. And there is no suspicion of a violation of fundamental rights. The Berlin regional court saw this as a problem. It believes that the blanket use of Encrochat data is indeed a violation of fundamental rights. The regional court therefore submitted its concerns to the European Court of Justice.
The ECJ has now made a very general decision in the matter. It sets general guidelines for how evidence such as Encrochat data is passed on between European states – and when it may be used in criminal proceedings.
Now it’s up to the German courts
In principle, prosecutors are allowed to request evidence from other European countries, according to the ECJ. In principle, it was possible that French investigators monitored suspects in Germany. The only thing that matters is that this was permissible under French law. However, there are further conditions in order for this evidence to be used in a German trial.
Important: A European state that monitors citizens of another state must inform the other state. And defendants must be able to comment on the evidence. In addition, it must be possible to take legal action against the transfer and use of data.
What this means in detail for the use of Encrochat data in Germany now depends on how the German courts interpret and implement the ECJ’s requirements. There are also constitutional complaints in Karlsruhe against the use of Encrochat data in criminal proceedings. However, the content has not yet been decided.
Max Bauer, SWR, tagesschau, April 30, 2024 1:29 p.m