ANOM admissibility too doubtful for pre-trial detention: Munich Higher Regional Court dismisses prosecution appeal

On 19 October 2023 the Higher Regional Court of Munich (1st Criminal Senate) dismissed the prosecution's appeal against the Memmingen Regional Court's refusal to issue an arrest warrant. Besides finding no ground for detention, the Senate held that there was no strong suspicion, because the admissibility of the ANOM chats, the only incriminating evidence, was doubtful under §§ 100a, 100b, 100e(6) no. 1 and 479(2) StPO. The case law of the Federal Court of Justice on EncroChat cannot be transferred to ANOM: neither the third State hosting the server nor the judicial orders authorising the operation had been disclosed, which left only unverifiable assertions. The Senate pointed to the missing judicial oversight records and to surveillance without individualised suspicion, both hard to reconcile with the right to a fair trial. ANOM data alone may therefore not support a detention order while the third State and its orders remain undisclosed.