For the first time, a Berlin court has banned the use of intercepted messages from the encryption service “Encrochat” in a trial – thus opposing the decisions of other courts in Germany.
First, the “Spiegel” reported on the controversial decision. Accordingly, the Berlin Regional Court had rejected the opening of main proceedings against a suspected drug dealer (31) on Thursday – intercepted “Encrochat” data would be subject to a ban on exploitation. The prosecution’s indictment relied almost entirely on this communication.
The court arguments: The cell phone espionage was carried out without the “necessary concrete suspicion”. The sole possession of the crypto cell phone is not a sufficient reason for investigation. After all, it is not enough for a house search for burglary if someone walks around with a crowbar, the court argues.
Means: The secret skimming of the news was legally wrong and a serious encroachment on personal rights. Therefore, the data must not be used – and criminals now hope for impunity.
A detective told the “Spiegel”: “If this decision of the regional court is upheld and will serve as a model in other proceedings in the future, we can close the store right away.”
Because: The decision could make the fight against organized crime much more difficult. Hundreds of suspected criminals can now hope for impunity.
Until July 2020, “EncroChat” was the app with which the underworld preferred to communicate. Secure from eavesdropping and not being located by the police, the messenger service enabled criminals to secretly coordinate their dirty business with the help of modified cell phones (“crypto cell phones”). Until the French police cracked the encryption and installed a spy program on cell phones with the chat program to read along.
The police in the Netherlands and France had managed to siphon off more than 20 million classified messages. 60,000 participants would have used the elaborately encrypted chat service.
Public prosecution wants to take action against the decision
The Berlin public prosecutor does not want to accept the decision. She will take legal action against it, she announced on Twitter on Friday evening.
The decision of the regional court on Thursday is in contrast to all previous decisions by the higher regional courts. Therefore one wants to bring about a “review by the chamber court”.
In the past seven days alone, TWO instances judged FOR the use of the Encrochat data:
► Only on Friday, i.e. the day AFTER the Berlin decision, was condemned Magdeburg Regional Court two drug traffickers to long prison terms. The investigative authorities had tracked them down through Encrochat chats.
► A week ago, the Dresden Public Prosecutor’s Office a case against a man (41). French investigative authorities became aware of the alleged drug dealer – again through the decryption of Encrochat communications.
Friedrich Fülscher, defense attorney in Kiel, defended the Berlin decision against “Die Welt”: “The decision of the Berlin judges may cause some citizens to feel uneasy. However, it is a commitment to the rule of law. A shaking of our fundamental rights would be less easy to bear for our constitutional state than to let some criminals off the hook ”.