GER: Constitutional Court on EncroChat Data as Evidence

Jan 10, 2025 Benn-Ibler Rechtsanwälte

This is the first time that the German Federal Constitutional Court (Bundesverfassungsgericht, hereinafter BVerfG) has been asked whether the use of EncroChat messages as evidence is constitutionally permissible.

The case at hand was a constitutional complaint against the use of evidence in German criminal proceedings that had taken place in France.

For a long time, EncroChat was highly popular with crime suspects as the company offered its users mobile phones with special software that made it impossible to monitor the chats. In 2020, however, the system was hacked by the French and Dutch authorities, allowing suspected criminals’ phones to be monitored. On the basis of these police investigations, large-scale raids were carried out in a number of countries. The intercepted conversations were about murders, money laundering, robbery, and drugs. Europol announced that as a result of the EncroChat hack, more than 6,500 people were arrested and almost EUR 900 million had been seized.

However, the precise details of how this was done are not known and not made public by France. As a result, the usability of the data from France in criminal proceedings before German courts has been called into question.

This issue has now been addressed by the BVerfG.

The court applied the German Basic Law (Grundgesetz) to assess the case. In particular, the court sought to ascertain whether a citizen’s general right to privacy stood violated. The court came to the conclusion that, even if information is obtained unlawfully, there is no constitutional principle that would make the use of such information generally inadmissible.

Only if sufficient precautions are taken to ensure that criminals are prosecuted, tried, and justly punished within the framework of the applicable laws can a constitutional state be realised.

BVerfG 2 BvR 684/22 (1 November 2024)