Yesterday the Regional Court of Berlin gave its final decision in the case that is known as “M.N.”. It was the case in which the judges asked the Court of Justice of the European Union on the interpretation of European Law, in particular on the Directive 2014/41. The European Court decided on this on 30th March 2024, in the case C-670/22 which is also known as “EncroChat I”, at which trial two lawyers of our team were present to support the view of the defendant (https://curia.europa.eu/juris/document/document.jsf;jsessionid=134EC68B81D27B72D8C93957ECD97BF3?text=&docid=285365&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2264927).
Immediate after the decision of the Court of Justice of the European Union it was clear: the legal protection of article 31 of Directive 2014/41 would become crucial in cases like these - cases based on EncroChat-data or data resulting from other operations, like Sky ECC. The Court of Justice stipulated after all that the protection of article 31 is protected individual users of telecommunication as well as the country itself in which these individual users were present.
The Berlin Court makes clear what is in our view the only possible way of ensuring the protection of fundamental rights like privacy but especially a fair trial: when an investigative authority of one country wants to collect digital evidence, from telecommunications of citizens, in another country, that other country has to be able to rule on it to ensure the fundamental rights of its own citizens are protected at least in the same way as they would be in a similar domestic case. Because of the (complete) lack of proportionality and subsidiarity, this is not the case when applied to the EncroChat-situation (nor in the situation of Sky ECC, for example). In short, it was not established that it was reasonable to even suspect all of the users to be criminals (committing crimes serious enough to hack or intercept their complete communications). Furthermore, it was not established that the evidence against the company (EncroChat and/ or Sky ECC) and other individual users suspected of serious crimes, could not have taken place in another, less severe way than by hacking / intercepting all of the users, the unknown ass well! The lawyers of our team brought forward this argument in many occasions, in a lot of courtrooms spread over Europe.
The oral decision of the Berlin Court of yesterday makes it look like they accepted this view, as article 31 Directive 2014/41 seems pivotal in the decision. The written ruling has still to come, but we think this view on article 31 will and should have effect for all the proceedings based on this kind of evidence, at least within the European Union.
Christian Lödden, LL.M. Justus Reisinger
Criminal defense lawyer Germany Criminal defense lawyer Netherlands