EncroChat-Data may be used for the Investigation of serious criminal Offences

Ausgabejahr 2022
Erscheinungsdatum 25.03.2022

Nr. 038/2022

Decision of 2 March 2022 – 5 StR 457/21

The Federal Court of Justice’s Fifth Criminal Panel situated in Leipzig has dismissed the appeal on points of law lodged by the accused from a judgment passed by the Regional Court Hamburg on 15 July 2021.

For ten offences of trafficking in narcotic drugs in not insignificant quantity, the accused was sentenced by the Regional Court to a cumulative custodial sentence of five years; moreover, the Court has ordered for the confiscation of proceeds from crime in the amount of more than 70,000 Euros. In some cases text messages, which had been sent by the accused via the provider EncroChat to organize the drug trafficking, were used as central evidence. With his appeal on points of law the accused, amongst other things, has raised the complaint that the use as evidence of these data, which in 2020 had been obtained by the French authorities and forwarded to the German judicial authorities, had not been admissible.

Upon request of the Federal Public Prosecutor General, the Federal Court of Justice has dismissed the appeal on points of law lodged by the accused. The Court has ruled that the data of the provider EncroChat forwarded by France may be used as evidence, if they serve the purpose of investigating serious criminal offences, as they do in the case at hand.

1. The ruling of the Federal Court of Justice was based upon the following facts and circumstances:

a) According to the comprehensive documentation submitted by the accused with his appeal, in the years 2017 and 2018 there had been some indications in France that suspects were undertaking organized drug trafficking (in quantities of up to six kg of heroin and 436 kg of marihuana) via specifically encrypted mobile telephones (“crypto mobiles”) of the provider EncroChat. These devices could not be used to make telephone calls or to access the internet, but merely to send chat (text) messages, create notes or save and send voice messages. Only the users of EncroChat were able to communicate with each other. Due to a specific equipment of the telephones and a unique encryption method, the law enforcement authorities were neither able to access any communication the telephones were used for, nor to locate the devices or read out their contents. The devices were advertised emphasizing the above characteristics as well as guaranteed anonymity. However, they could not be purchased from official sales outlets, but could be obtained only from special sellers selling the devices through anonymous channels at a high price of 1,610 Euros for a six months’ usage period. A legally existing company by the name of “EncroChat“ was nowhere to be found, the same applied to their responsible persons or registered offices.

b) The French law enforcement authorities initiated investigation proceedings on grounds of a suspected criminal organisation, amongst others things, and detected that the encrypted communication among EncroChat-users was carried out via a server operated in the French city of Roubaix. Authorised by a French court, the law enforcement authorities accessed the data on the respective server. In doing so, they found 66,134 SIM cards of a Dutch provider registered in the system that were being used in numerous European countries. A decryption of several thousand “notes“ of EncroChat-users proved that these persons, beyond all doubt, were involved in illegal activities, especially in drug trafficking of up to 60 kg of cocaine.

c) Upon request of the French public prosecutor’s office, a judicial authorisation was issued in France authorising the law enforcement authorities, amongst other things, to install from 1 April 2020 on an intercept device to the data running via the French server and saved on the telephones. According to first findings, at least 63.7 % of the telephones active in France were definitely used for criminal purposes; the remaining devices (36.3 %) were either inactive or not yet analysed. Following the analysis of the data obtained during the first month, the public prosecutor’s office and the court assumed that the EncroChat-users consisted of an „almost all-criminal clientele”.

d) The Federal Criminal Police Office (Bundeskriminalamt) was provided with insight via Europol indicating that a large number of most serious criminal offences was committed in Germany by EncroChat-users. Thereupon the Central Office for Cybercrime Control (Zentralstelle zur Bekämpfung der Internetkriminalität) at the Prosecutor General’s Office in Frankfurt am Main initiated investigation proceedings against persons unknown. In the course of these proceedings a European Investigation Order directed to France was issued on 2 June 2020 with the request to forward the EncroChat-data related to Germany and to permit such data to be used in German criminal proceedings. On 13 June 2020 both requests were approved by a French court.

2. The following legal considerations were decisive for the Federal Court of Justice:

a) The constitutional legal basis for the use of evidence in criminal proceedings is section 261 German Code of Criminal Procedure (Strafprozeßordnung, StPO). This also applies to data obtained by way of judicial assistance. In German law there is no specific regulation restricting the use of such evidence. However, the use of data obtained in a manner similar to this case could include an intrusion of telecommunications secrecy, which is protected by article 10 Basic Law (Grundgesetz, GG); therefore, for constitutional reasons the principle of proportionality has to be considered carefully. With reference to the restrictions of use like section 100e (6) no. 1 StPO, data obtained in such manner may be used to convict perpetrators who committed those particularly serious offences, for whose investigation the court may enable the most intrusive investigative measures provided for by German criminal proceedings law, namely an online search or an acoustic surveillance of private premises. As a rule, the trafficking in narcotic drugs in question here will be among those particularly serious offences.

b) The exclusion of evidence improperly obtained that is claimed by the appeal on points of law does not exist from any legal viewpoint whatsoever.

aa) The question whether such exclusion of evidence exists is governed by German law exclusively. A review of the French investigation measures against foreign law standards will not be performed. As a result, it does not really matter if a measure like the one carried out here according to French law in France could have been ordered in Germany also. This does not constitute a prerequisite for transferring the evidence obtained by the French authorities according to French law into German criminal proceedings. The different requirements for ordering such measure in France and Germany can be compensated for at the level of evidence utilization. For this reason the particularly high requirements described under a) apply to the use of this evidence.

bb) The gathering of evidence does not violate basic human or European rights values or fundamental constitutional requirements in the meaning of an „ordre public“ to be considered in judicial assistance. According to the information the French authorities had obtained from their first data access, the investigations did not concern a mass surveillance performed without cause and involving a large number of non-suspect mobile phone users. In fact, for the French authorities EncroChat turned out to be a network that had been developed from the outset for the facilitation of criminal activities and acted in secrecy. Due to the initial findings that these telephones were almost exclusively used for criminal purposes, a user was suspected to undertake criminal activities from the field of organised crime, like trafficking in drugs or weapons or money laundering, alone for the reason of using an EncroChat mobile which involved significant costs and could not be purchased through the usual distribution channels.

cc) A potential violation by the French authorities of their duty to timely inform Germany about the surveillance operation related to the federal territory cannot, in view of the subsequent data use approval from all sides, result in an exclusion of evidence improperly obtained. Despite this it is arguable if the duty to inform shall serve for the concerned persons individual protection against the use of evidence in domestic proceedings. However, the due consideration of the different interest would lead in any case to the predominance of the state’s interest in criminal prosecution. The fact that the Prosecutor General’s Office in Frankfurt am Main has requested an extensive transfer of evidence in proceedings against persons unknown based upon suspicion that was general, but ultimately applied to each user directly, does not raise any legal concerns either.

dd) The appeal on points of law has not argued that a possible violation of judicial assistance-related regulations may have occurred during data exchange or otherwise in the course of cooperation between the French and German police authorities before the European Investigation Order had been issued. It is therefore irrelevant that, due to the subsequently obtained consent, there isn’t any drastic legal error obvious, above all, as the European regulations on judicial assistance allow for the cross-border transfer of findings for criminal prosecution purposes even without corresponding letters of request. In any case, the use of data deriving from this kind of information exchange cannot be subjected to stricter requirements as apply to the use of data obtained by means of a European Investigation Order. A targeted or systematic evasion by French or German authorities of regulations serving for the individual legal protection of accused persons neither has been stated in comprehensible manner, nor is actually evident otherwise.

The decision is available in the in the judgments database on the website of the Federal Court of Justice.

Lower Court:

Regional Court Hamburg – judgment of 15 July 2021 – 632 KLs 8/21