Reasons for the Berlin court's decision regarding EncroChat: significance for other criminal cases

In December, we reported on the decision of the Berlin court regarding EncroChat after the preliminary questions were answered by the Court of Justice of the European Union (CJEU) in the judgement of 30 April 2024 in case C-670/22. The reasons for this decision have now been given.

Regional Court of Berlin

Substantive court decision

In more than 100 pages, the judges of the Berlin court explain in great detail what went wrong in the operation surrounding EncroChat. They give their factual and legal view in strong terms. It is clear to the court that the authorities involved (police and judiciary) (from France, the Netherlands, but also Europol and, in this case, even Germany) never had the intention of ensuring proper compliance with European/international law, in particular Article 31 of Directive 2014/41. The consequence is that there was never any intention to ensure compliance with the national law of the various jurisdictions from which data was obtained, even though these problems were recognised at the time by the authorities involved. In the meantime, it was also their intention to extract data from all these countries and also for those countries, because the minimal use of EncroChat in France itself never justifies this operation, according to the court.

But the court goes further than that. Given what the French judge used for authorisation to hack all EncroChat users worldwide, the hack could never have been authorised by a German judge, either beforehand or afterwards. The court also refers to the judgement of, for example, the Rotterdam court, which we have reported on previously (see here), and which shows that even after extensive investigation by the Dutch police and the public prosecutor's office, it cannot be established that (virtually) all EncroChat users are criminals.

It is our deeply-held conviction that this judgement/these judgements are no different for all other countries of the European Union (with the exception of France): By circumventing European law, specifically Article 31 of Directive 2014/41, national legal protection has also been circumvented and no competent authority of any member state of the European Union has been able to protect its own citizens as it would in a comparable domestic situation. This means that the relevance and significance of this verdict should not be underestimated. After all, this interpretation applies to all the member states of the European Union and probably even to all member states of the Council of Europe (with the exception of France) via the Cybercrime Convention. Moreover, we read in this decision an unambiguous confirmation of the argument that many lawyers and in any case the members of our team have been advocating for a long time in many criminal cases throughout Europe.

In addition, the court points to the problems surrounding the reliability of the EncroChat data. It appears that there are imperfections without a clear explanation. However, the court was unable to carry out an audit, including an investigation of the ‘chain of custody’. The court considers this necessary for a fair criminal trial, referring to the case law of the European Court of Human Rights. For example, a suspect must also be given access to the (raw) data.

Conclusion

We therefore do not need to speculate about the significance of this decision for other criminal cases. The outcome will be the same as in the Berlin case when it comes to criminal cases in which EncroChat data may be of decisive significance for a conviction, without it being possible to effectively comment on it in terms of legality or reliability. In those cases, the defendant will have to be acquitted because the data cannot be used.

Moreover, this outcome does not only apply to EncroChat cases, but also to criminal cases based on, for example, Sky ECC data or Anom data. In these cases, the legal interpretation of the aforementioned principles of European law/Article 31 of Directive 2014/41 and a fair criminal process with effective contradiction are not essentially different. These cases also involved the circumvention of international and national rules for the legal protection of citizens and a situation in which suspects in criminal cases cannot effectively comment on this.

Note that for the sake of the interests of the suspect in the Berlin case and at the request of his legal representation, we will not publish the verdict ourselves. We ask everyone to respect this.