Berlin Regional Court refuses to open main proceedings: EncroChat data inadmissible

By decision of 1 July 2021 the 25th Grand Criminal Chamber of the Berlin Regional Court refused to open main proceedings on an indictment for 16 counts of drug trafficking in non-minor quantities and quashed the arrest warrant. The indictment rested essentially on the defendant's EncroChat chats, which the chamber held inadmissible. France was obliged under Art. 31 Directive 2014/41/EU to notify Germany before intercepting users on German territory and did not do so. A German court would have found no qualified suspicion under §§ 100a, 100b StPO, because use of an encrypted phone does not in itself found suspicion, and suspicionless surveillance of more than 30,000 users is alien to German law and disproportionate. Each of these defects independently leads to an exclusionary rule. The chamber examined admissibility of its own motion at the interim stage.