Encrochat: Constitutional Court again rejects appeal against conviction

Data obtained from the hacking of the encrypted communication service Encrochat in other EU countries may be used in Germany to prosecute serious crimes. The Federal Constitutional Court has once again endorsed this view of the Federal Court of Justice (Bundesgerichtshof, BGH) in principle in a decision published on November 1. The 2nd Senate of the Constitutional Court did not accept for decision a constitutional complaint against a criminal conviction that objected to the use of the Encrochat data collected by French authorities and transmitted to Germany based on a European Investigation Order (EIO).

The Karlsruhe judges justified their decision by stating that the convicted person's submission was not sufficiently substantiated. He had not sufficiently demonstrated that, for example, his right to be heard or his fundamental rights had been significantly violated. The 2nd Senate writes that the ECJ has since come to a different conclusion than the BGH in some respects. For example, the transfer of evidence that is already in the possession of the competent authorities of the executing state is only possible if it could have been ordered under the same conditions in a comparable domestic case. However, this "deviation" from the previous interpretation of the law does not call into question the result reached by the Federal Court of Justice in the present case.

"Interception tool" introduced to Encrochat by "remote injection"

The Hamburg Regional Court had sentenced the predominantly confessed complainant to a total term of imprisonment of five years for trafficking in narcotics in not insignificant quantities in ten cases. He had used an encrypted Encrochat cell phone to buy and sell the drugs. The regional court had based the evidence in part on the evaluation of the data available after the service was cracked. This went back to investigations by French authorities in spring 2020. Europol transferred the information via the Public Prosecutor General's Office to the competent regional law enforcement authorities in Germany.

The constitutional judges now criticize that the complainant did not comply with his duty to adapt his submission to the ECJ ruling. However, this would not have changed much in the matter. The still open question of whether the measure carried out by the French authorities of intercepting all communication traffic via a server, which is not explicitly mentioned in the EEA Directive, may be the subject of a relevant order, was not decisive for the case. The French investigators had used a "remote injection" to "introduce an interception tool", the judges in Karlsruhe also revealed. Law enforcement officers arrested thousands of people across Europe after the Encrochat infiltration. Critics complain that this was done because of at least questionable evidence and procedures. However, the Federal Constitutional Court did not accept other corresponding complaints last year either.

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