Public prosecutors in Berlin have been told they can use messages intercepted by French police during a sophisticated hacking operation into the EncroChat encrypted phone network in German courts.
This week, the Superior Court in Berlin overturned a ruling by the Berlin Regional Court that found millions of text messages gathered by French and Dutch police in a hacking operation against EncroChat users could not be used legally in evidence.
The Berlin public prosecutor announced the verdict on Twitter: “Our complaint was successful.” The court confirmed the usability of “EncroChat by the higher court case law in Germany”.
French and Dutch investigators obtained millions of supposedly secure messages from EncroChat phone users between April and June 2020 after being granted a court order to place a data interception device on an EncroChat server uploaded to tens of thousands of handsets.
This week’s ruling comes two months after a Berlin court’s judgment restricting the use of EncroChat messages.
The case concerns a 31-year-old accused of drug dealing but has broader implications for the admissibility of EncroChat evidence in legal proceedings.
The public prosecutor confirmed it had re-issued an arrest warrant against the individual, who has been living with his family for the past two months following his release from custody. Prosecutors said the individual was a flight risk.
Since July, according to German press reports, more than 550 prosecutions against 135 suspects have been initiated based on EncroChat data in Berlin.
Courts in the UK, France, and Holland face similar legal challenges over the admissibility of EncroChat evidence. At least 20 defendants are understood to have complained to the UK’s Investigatory Powers Tribunal, which is expected to make rulings next year. Other legal challenges are being considered in crown courts.
The admissibility of EncroChat evidence in Germany must be addressed by the German Supreme Court, considering several EncroChat-related cases. A verdict is not expected until spring 2022.
Speaking after this week’s verdict, Christian Lödden, a criminal defense lawyer familiar with the case, said the Berlin Superior Court’s verdict was weak and poorly reasoned, given Germany’s strict privacy laws.
Last year, he said the state-approved 21 phone taps using malware across the whole of Germany, tiny in comparison to the 3,350 EncroChat phones in Germany that were hacked by the French Gendarmerie’s computer crime unit, C3N.
“The hurdles to get warrants for tapping phones, for going into phones and reading messages, are high in Germany. It would help to have concrete suspicions, named people, and strong criminal violations. You cannot do it for every offense,” he said.
Lödden said every regional court in Germany had at least one EncroChat case and that judges in the country were dealing with the cases in different ways.
“At the end of the day, the Supreme Court will find a final decision for this legal question. Is it admissible? Is it not?”
The case will now be returned to the Berlin Regional Court, where a new set will hear it of judges.
EncroChat prosecutions are moving slowly in Germany, said Lödden.
