After several Higher Regional Courts in Germany took the viewpoint that evidence gained from chat messages exchanged between criminals via EncroChat can be used in criminal proceedings in Germany (→ eucrim 1/2021, 22-23), the Federal Court of Justice (Bundesgerichtshof) handed down the first supreme court judgment in these cases (decision 5 StR 457/21). On 2 March 2021, the Court rejected an appeal on points of law against a conviction by the Regional Court of Hamburg.
The Regional Court sentenced the accused to a term of imprisonment of five years for ten crimes of trafficking in narcotics in a not insignificant amount and ordered the confiscation of proceeds of more than €70,000. In some cases, central evidence were text messages sent by the accused via the provider EncroChat to organise drug trafficking. In his appeal, the accused complained, among other things, that this data, obtained from French authorities in 2020 and transmitted to the German authorities, should not have been used as evidence.
In terms of fact, the Federal Court of Justice (FCJ) stated that the following can be assumed:
In 2017 and 2018, there were indications in France that suspects were carrying out organised drug trafficking via specially encrypted mobile phones ("crypto phones") of the provider EncroChat.
With these devices, one could neither make phone calls nor use the internet, but only send chat messages (SMS), create notes or store and send voice messages. Communication was only possible between EncroChat users.
Due to a special equipment of the phones and a special encryption technology, law enforcement authorities could neither access the communication conducted with them nor read out the contents of the devices or locate them.
The devices were advertised with these features and a guarantee of anonymity. However, they could not be purchased from official sales points, but only from special sellers through anonymous channels at a high price of over €1,600 for a period of use of six months. A legally existing company "EncroChat" could not be found, nor could those responsible for this company or a company headquarters.
The French law enforcement authorities initiated an investigation on suspicion of criminal association, among other things, and found that the encrypted communication between EncroChat users ran via a server operated in Roubaix, France. With authorisation from a French court, they accessed the data on the server. This revealed that over 66,000 SIM cards from a Dutch provider were registered in the system, which were used in a large number of European countries.
A decryption of several thousand "notes" from EncroChat users proved that they were undoubtedly linked to illegal activities, such as drug trafficking in particular, with up to 60 kg of cocaine.
At the request of the French public prosecutor's office, a court in France authorised the installation of an interception device on the data passing through the French server and stored on the phones as of 1 April 2020. According to initial findings, 63.7% of the phones active in France were certainly used for criminal purposes, the remaining devices (36.3%) were either partly inactive or not yet evaluated.
After evaluating the data obtained in the first month, the public prosecutor's office and the court assumed that the EncroChat users were "almost exclusively criminal clientele".
The operation was assisted by Europol and Eurojust. Europol forwarded data to the Federal Criminal Police Office (Bundeskriminalamt) since it was found that a large number of serious crimes had been committed by EncroChat users in Germany. The Central Office for Combating Internet Crime at the General Public Prosecutor's Office in Frankfurt am Main then initiated investigations against “unknown persons”.
In these pre-trial proceedings, a European Investigation Order addressed to France was issued on 2 June 2020 with the request to transfer the EncroChat data concerning Germany and to allow its use in German criminal proceedings. Both were approved by a French court on 13 June 2020.
SECRECY IS LUXURY
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