Hacked data may be used in court. But that raises legal questions.
Can a European state act as a hacker, install spy software on the mobile phones of 30,000 users and then pass on the hijacked chats to the member countries as evidence? Can the accused be convicted in Germany on this basis? Not only German courts are currently dealing with this question, but also the European Court of Justice in Luxembourg (ECJ) and the European Court of Human Rights in Strasbourg (ECHR). To anticipate it. So far, the German courts can use the evidence from the hacked chats and convict the accused. But that is by no means the last word.
It’s about the dismantling of the criminal network Encrochat three years ago. French investigators had cracked the company’s communications system, which advertised that its cell phones could not be tapped or located, and that the encrypted messages could not be deciphered. The sellers of Encrochat remained anonymous, payment was made in cash, and the handover took place in public places. After the exposure, thousands of investigations were launched in the Netherlands, Spain, Germany and Italy. According to Europol, more than 6,500 people have been arrested and almost 900 million euros confiscated. For prosecutors, it was and is a huge success against drug wholesalers.
Paris transfers millions of data to Germany
The annexes also relate to homicides, arms trafficking and money laundering. But the end does not justify the means, and criminal proceedings must be conducted in accordance with the rule of law. The Federal Court of Justice (BGH) decided a year ago that the evidence of the French investigators can be used in German criminal proceedings. On Tuesday, the Federal Constitutional Court declared eight constitutional complaints against the use of evidence inadmissible due to formal deficiencies. The case law of the BGH thus remains in place for the time being. But five other constitutional complaints are pending in Karlsruhe, which have not yet been decided. So the exit is still open.
Essentially, there are two questions: Was it allowed to transmit the 12 million pieces of data from France to the Federal Criminal Police Office (BKA), was that covered by European law? The BGH affirmed that a year ago. The Hamburg lawyer Strate, on the other hand, argues that the BGH should have submitted questions about the admissibility of the hacker attack and the usability of the data to the ECJ in Luxembourg, which it did not do. Strate’s constitutional complaint is one of five on which the Federal Constitutional Court has not yet ruled.
The second question is whether German courts were then allowed to use the data transmitted by France as evidence in criminal proceedings. In any case, German courts must examine whether there is a ban on the use of evidence under German law. Reasons may be that it was an “unreasonable mass surveillance”. Or that the private core area of the suspects was spied on.
In the interest of European member states
The BGH has denied this so far. The intimate area of life is not affected and the use of the data is proportionate to the seriousness of the crime. This BGH position is also still pending review with the Federal Constitutional Court. Quite independently of this, a criminal chamber of the Berlin district court has now appealed to the ECJ. He is supposed to check whether the transmission of the French data was covered by European law.
The Human Rights Court in Strasbourg is in turn dealing with the actions of the French investigators. The ECtHR submitted numerous questions to the French authorities, which apparently were answered at the beginning of 2023 but have not yet been published. Lawyers who know the answers well see it confirmed that France was not primarily spying on Eurochat users in the interests of the country, but in the interests of European member states. German investigators would have taken advantage of the procedure because the legal basis in this country was still missing at the time. The decision of the ECtHR is still pending.
2023-09-05 15:37:09
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