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Germany: European Court of Justice asked to rule on legality of hacked EncroChat phone evidence


Europe’s supreme court has been asked to decide whether evidence obtained in an international police operation to hack encrypted phones can be lawfully used as evidence in courts in the European Union (EU).

In what lawyers described as a major legal development, a German court referred a series of questions to the Court of Justice of the European Union (CJEU) asking whether France’s sharing of hacked EncroChat messages with Germany was lawful under European law.

Following a serious of legal challenges, Germany’s Supreme Court ruled in March that evidence from EncroChat could be lawfully used in criminal trials.

But if the CJEU found that evidence from the hacked phone network was obtained and shared in breach of European laws, defence lawyers believe the result could impact hundreds of prosecutions of people accused of drug dealing and organised crime and may lead to cases being dropped.

Christian Lödden, a defence lawyer, described the decision by the Berlin Regional Court to ask the CJEU for a decision of legal basis in European law for the EncroChat operation as “historic”.

He said courts in other European countries were now expected to seek clarification from the CJEU. “The flood is coming,” he said.

The case is one of a number of legal challenges in Europe and the UK to a novel and unprecedented police hacking operation that has led to clashes between defence lawyers and prosecutors and has seen some courts re-interpret existing laws on interception.


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