2024-04-30 15:31:27
The ECJ has provided clarity on the explosive question of the usability of Encrochat data for prosecutors. The German judiciary receives the green light.
In the dispute over the usability of so-called Encrochat data, the European Court of Justice (ECJ) in Luxembourg has supported German prosecutors. A public prosecutor is also allowed to request existing evidence from foreign authorities – not just a judge, the ECJ ruled on Tuesday. In this specific case, the public prosecutor’s office asked the French authorities for data.
Suspected criminals communicated across Europe via the Encrochat communication service, which is considered to be very secure against interception. French and Dutch investigators, working with the EU authorities Europol and Eurojust, managed to hack the program in 2020. The communication data of German users was made available, among other things, to the German Federal Criminal Police Office via a Europol server.
Transfer of data has been approved
The Frankfurt am Main Public Prosecutor’s Office asked the French authorities with a European investigation order to allow them to use the data without restrictions in criminal proceedings. The Lille Criminal Court then approved the transfer of this data and its use in criminal proceedings in Germany. As a result of the decryption, thousands of criminal proceedings were initiated in Germany.
In one of them, the Berlin district court has to decide on a case of suspected drug trafficking. However, there were doubts that the evidence – especially text and image messages – could be used. It therefore suspended the proceedings and asked the ECJ various questions.
This now specified the requirements for the transmission and use of evidence. A public prosecutor may therefore obtain such data from another EU member state if he would also be responsible for it domestically. The fact that the French authorities collected the evidence in Germany and in the interests of the German authorities is not important here.
Basic rights must be protected
However, the ECJ also set limits. It must be possible for a court to check whether the fundamental rights of those affected are being protected. In addition, an EU country must inform another member state in advance about surveillance of telecommunications on its territory. Its authorities could prohibit surveillance if it were not authorized in a comparable domestic case.
The ECJ emphasized that a fair procedure must be guaranteed. If a defendant cannot properly comment on important information or evidence, it must be ignored.
The decision of the Federal Constitutional Court is still pending
The regional court had also asked the ECJ whether the Encrochat data could be used at all. The Court responded that the decision in the specific case was a matter for the regional court. This is tied to the legal opinion of the ECJ.