EncroChat continues to occupy the German Jusitz, neither BGH nor BVerfG have commented on this so far. The LG Frankfurt has now imposed several years of imprisonment in connection with the encryption service.
A conviction in connection with EncroChat has come before another regional court. The district court (LG) Frankfurt am Main has now imposed several years of imprisonment on three men, it was about gang trafficking with narcotics in no small amount. A Lamborghini purchased with the proceeds of the drug trade was also confiscated and the confiscation of compensation in the amount of around five million euros was ordered (judgment of February 16, 2022, Az. 14 KLs 5181 Js 233803/20).
EncroChat is a provider specializing in encrypted communication, which has apparently offered tap-proof mobile phones. In spring 2020, French authorities managed to break into the Encrochat system. This gave access to data from tens of thousands of users, including some from Germany. That is why there have been numerous proceedings and convictions in the last two years, as is the case now before the Frankfurt Regional Court. It is particularly problematic that there is hardly any information about the specific actions of the French authorities. In this respect, it is particularly questionable whether this evidence should not be subject to a ban on the use of evidence. Legal considerations are also put forward for this purpose.
The conviction by the LG Frankfurt was not communicated by the regional court itself, as is usual, but by the Frankfurt Public Prosecutor’s Office and the central office for combating cybercrime located there. For law enforcement, the conviction is likely to be another win. In this context, new positions were created at several public prosecutor’s offices, for example in Bremen and Berlin.
However, the question of usability remains highly controversial. In Berlin, the regional court had initially ruled against the usability before the Court of Appeal overturned the corresponding decision and affirmed the usability on the basis of Section 100e Paragraph 6 No. 1 StPO. The Federal Court of Justice has not yet commented on this question, but will probably do so in the foreseeable future. As Deutschlandfunk reported, corresponding proceedings are also pending before the Federal Constitutional Court and the European Court of Human Rights.