Can Courts Use EncroChat Data to Convict Criminals?

Oct 13, 2023 Benn-Ibler Rechtsanwälte

The question of whether courts can use EncroChat data as evidence remains open. The German Federal Constitutional Court (Bundesverfassungsgericht, hereinafter BVerfG) has rejected several constitutional complaints for decision.

EncroChat had long been popular with suspected criminals as the company offered users mobile phones with special software that allowed chats that couldn’t be monitored. In 2020, however, the French-Dutch authorities hacked the system, which made it possible to monitor the mobile phones of suspected criminals. Large-scale raids were carried out in several countries on the basis of these findings. The chats monitored were about assassinations, money laundering, but also about robberies and drugs. Europol announced that more than 6,500 people had been arrested and almost EUR 900 million seized as a result of the EncroChat hack.

One of the trials involved a German drug dealer who, in 2021, was sentenced to five years in prison by the Rostock Regional Court. The conviction was based on the defendant’s chat history he had conducted via EncroChat. An appeal against the sentence was rejected by the German Federal Court of Justice (Bundesgerichtshof). The man has now lodged a constitutional complaint with the BVerfG.

According to the BVerfG, the constitutional complaint was inadmissible. The principle of subsidiarity had been violated and a possible violation of fundamental rights had not been proven.

According to the principle of subsidiarity, the alleged violation of fundamental rights should, if possible, already be remedied in the proceedings before the specialised courts. In criminal proceedings, this principle requires that a complainant who considers that their fundamental rights have been violated by the trial court fails to raise them in the appellate proceedings in such a way as to enable the appellate court to examine them on the merits.

However, the alleged violation of Articles 7 and 8 of the EU Charter of Fundamental Rights which protect private and family life as well as personal data was not admissibly challenged in the appeal, i.e. a violation was not sufficiently alleged.

The BVerfG expressly emphasised that the constitutional question of the usability of the EncroChat data had not been decided.

BVerfG 2 BvR 558/22 (9 August 2023)