ECJ: National courts may not use Encrochat data if necessary
The ECJ explains the conditions under which data from the compromised messenger Encrochat can be transmitted and used as evidence.
(Bild: Wirestock Images/Shutterstock.com)
Data from cell phones that have been exchanged via the encrypted communication service Encrochat may be transferred to German investigative authorities from other EU states by way of international legal assistance. This was decided by the European Court of Justice (ECJ) on Tuesday. Accordingly, a European Investigation Order (EIO) aimed at the transfer of evidence from another Member State can be issued by a public prosecutor under certain conditions. Additional authorization from a judge is therefore not necessary. In general, the Luxembourg judges do not consider it necessary for the requirements that apply to the collection of evidence in the issuing state to be met to issue an EIO.
A year and a half ago, the Berlin Regional Court asked the ECJ to examine whether the German law enforcement authorities had violated EU regulations when obtaining data from the infiltration of Encrochat in a case concerning illegal trafficking in narcotics. It also had to be clarified whether such a potential breach of the law would affect the usability of the information obtained in criminal proceedings. The Berlin judges were also unclear about the consequences if telecommunications surveillance extends to all connections of a service located on the territory, although there are not even concrete indications that an individual user has committed serious crimes.
The fact that the French authorities in the case collected the disputed evidence in Germany and in the interests of local prosecutors is, according to the recently published judgment in case C-670/22, irrelevant in principle. However, a court hearing an appeal against the public prosecutor's order must be able to review whether the fundamental rights of the persons concerned are respected. The ECJ further emphasizes that the Member State in which the target of the surveillance is located (in this case, Germany) must be informed of a measure involving the infiltration of terminal equipment to obtain traffic, location and communication data from an internet-based communication service.
Safeguarding state sovereignty and the protection of fundamental rights
According to the Luxembourg judges, the competent authority of the EU country thus has the option of informing the originally responsible law enforcement authorities that the interception of telecommunications cannot be carried out or must be terminated if it would not be authorized in a comparable domestic case. According to the decision, these obligations are "intended not only to ensure respect for the sovereignty of the Member State notified", but also to protect the persons concerned.
Furthermore, the ECJ emphasizes that the national criminal court may have to disregard evidence in criminal proceedings against a suspect. This is the case if the person concerned is not in a position to comment on it. The same applies if the allegations are likely to "significantly influence the assessment of the facts". With these requirements, the Luxembourg judges go beyond the plea of ECJ Advocate General Tamara Ćapeta. She pointed out that the surveillance of telecommunications had already been authorized by French courts. Recently, law enforcement officers have arrested thousands of people across Europe following the Encrochat infiltration. Critics complain that this is being done on the basis of at least questionable evidence and procedures. However, the Federal Constitutional Court did not accept a corresponding complaint for a ruling last year.
(dahe)
