German court finds hacked EncroChat phone evidence inadmissible

A recent decision by the Berlin Regional Court has raised concerns about the legality of using data from 120 million messages obtained through police hacking of an encrypted phone service as evidence in prosecutions in Germany and other European countries. The court ruled that text messages intercepted by French police from the EncroChat encrypted phone network could not be used to prosecute a suspect for alleged drug trafficking offenses in Germany.

This ruling challenges previous assumptions that intercept evidence obtained by one European member state could automatically be used in other member states under Europe’s mutual recognition principle. The decision is expected to have implications for future law enforcement hacking operations into encrypted communications systems.

EncroChat is just one of several encrypted phone and messaging services infiltrated by law enforcement agencies across Europe since 2020. This led to prosecutions of organized crime groups for drug trafficking and money laundering in multiple countries. French and Dutch police harvested messages from thousands of EncroChat users in Germany and other countries after infiltrating EncroChat servers in France in 2020.

The Berlin Regional Court found that the French investigators harvested EncroChat data from the handsets of users in German territory, rather than from a central server in France. This raised concerns about the legality of using this data in Germany without approval from German courts. The court’s decision also highlighted the importance of protecting the rights of individuals whose communications are intercepted by law enforcement.

Following questions submitted to the Court of Justice of the European Union, it was found that France should have formally notified Germany of the interception of EncroChat phones on German soil and given German authorities the opportunity to object to the operation. The court of justice emphasized the need to protect the privacy and rights of individuals whose communications are intercepted.

The Berlin Regional Court determined that a German court would not have approved the hacking operation against EncroChat under German law because the evidence did not justify such intrusive measures. The court also criticized French authorities for not following the correct procedures under EU law to inform Germany of their plans to obtain phone data from German citizens.

The decision by the Berlin court is likely to set a precedent for similar cases in Germany and could have significant implications for cases in other European countries. Prosecutors are expected to appeal the decision to the Supreme Court in Germany. The final written version of the decision has yet to be published.

Key points from the decision by the Berlin Regional Court include:

– EncroChat data cannot be used as evidence in a criminal trial.
– German courts must determine the legality of interception measures taken by other European member states.
– The threshold for intercepting communications must be justified by the suspicion of serious crimes.
– Mutual cooperation between European member states must respect national measures to protect citizens’ rights.
– Requesting data from another country does not automatically permit its use in prosecutions.
– Less intrusive means of gathering evidence should be considered before intercepting communications.

(Source: EKSK legal, Joint Defence Team)