In its decision of July 1, 2021, file no. 525 KLs254 Js 592/20 (10/21), the Berlin Regional Court ruled that encrypted communication data from crypto phones may be subject to an exclusionary rule in criminal proceedings. Consequently, the Berlin Regional Court decided not to initiate main proceedings against the accused and revoked the arrest warrant issued against him.
What happened?
The public prosecutor's office charged the accused with 16 instances of illicit drug trafficking involving substantial quantities. During the alleged offenses, the accused and his accomplices communicated using so-called crypto phones provided by a Dutch vendor. Communication via these crypto phones is end-to-end encrypted and routed through a server located in France. In the course of their investigations into 15 drug trafficking cases, French law enforcement authorities retrieved chat logs from this server. To achieve this, French investigative authorities deployed Trojan software that extracted chat messages, communication device data, identification numbers, usernames, and address books of the involved parties. The French investigative authorities subsequently shared their collected intelligence with their German counterparts. This led German authorities to identify the accused, who was then indicted by the Berlin-Brandenburg public prosecutor's office.
Communication data cannot be admitted as evidence against the accused in this context.
The Berlin Regional Court, in its ruling, established that the data acquired by law enforcement authorities is subject to an exclusionary rule. Consequently, the evidence obtained from the crypto phones cannot substantiate the charges due to its inadmissibility. The prohibition on the use of evidence in this instance stems from the fact that the evidence was procured in violation of individual protective regulations. Specifically, the evidence from the crypto phones was obtained in breach of the fundamental IT right enshrined in Article 10 of the Basic Law and in contravention of Directive 2014/41/EU. Moreover, the prerequisites of §§ 100a, 100b of the Code of Criminal Procedure (StPO) were not satisfied. These provisions authorize telecommunications surveillance measures, contingent upon sufficient suspicion of a criminal offense. However, in the accused's case, a concrete charge was absent, as the evidence collection was merely intended to establish such a suspicion.
Proactive data collection is generally impermissible.
German law currently does not permit telecommunications surveillance conducted in anticipation of criminal prosecution, aimed at proactively collecting evidence for future, uncertain criminal proceedings, or at establishing an initial concrete suspicion. Furthermore, indiscriminate telecommunications surveillance is fundamentally incompatible with German legal principles. The existence of potential suspicions against unknown individuals in France at the time of the investigations does not constitute a sufficient basis. It is imperative that such suspicions are directed against specific, identified accused persons, including the individual in question. Moreover, the mere use of a crypto phone by the accused does not, in itself, indicate criminal conduct that would justify telecommunications surveillance under §§ 100a, 100b of the Code of Criminal Procedure (StPO). Additionally, there was no evidence of a criminal network to which the accused might have belonged. While over 60,000 individuals utilized crypto phones, the 317 persons identified by French authorities represent an insufficient proportion to establish such a network.
Exceptions are permissible in instances of grave legal infringements.
Following a comprehensive assessment of all circumstances, the conditions for an exceptional admission of evidence were deemed unsatisfied. There was no particularly egregious legal transgression by the accused. Moreover, given that the information originated from France, the duty to inform under mutual legal assistance law was violated in the present case.
The decision is not yet legally binding.
Source: Berlin Regional Court, Decision of July 1, 2021, File No. 525 KLs254 Js 592/20 (10/21)
GoldbergUllrich Attorneys at Law 2021
Christopher Pillat, LL.M. (Intellectual Property Law)
Attorney-at-Law
