The Berlin Regional Court has ruled that the EncroChat data is subject to a comprehensive exclusion of evidence.

The decision followed a request for a preliminary ruling from the Berlin Regional Court dated 19 October 2022 ((525 KLs) 279 Js 30/22 (8/22), 525 KLs 8/22) to the ECJ. In its judgment of 30 April 2024 – C-670/22 (LINK), the ECJ found that the investigative measure taken by the French authorities constituted an interception of telecommunications within the meaning of Article 31 of the EIO Directive (2014/41/EU) (para. 119), that the obligation to provide information under Article 31(1) of the EIO Directive (2014/41/EU) has a character of individual protection (para. 124) and that, pursuant to Article 14(7) of the EIO Directive (2014/41/EU), information and evidence must be disregarded in national criminal proceedings if the person concerned was not in a position to ‘comment properly on that information and evidence, and it is capable of significantly influencing the assessment of the facts’ (para. 131).

The exclusion of evidence is based, on the one hand, on breaches of the provisions of the EIO Directive (2014/41/EU) on mutual legal assistance by French and German investigative authorities in connection with the collection and transmission of EncroChat data to Germany in the spring of 2020. In the context of the required comprehensive assessment, these procedural violations, taken individually and certainly when considered as a whole, render the data inadmissible. In view of the significant impairment of the rights of the defence caused by the withholding of information on technical and procedural matters, the right to a fair trial – under both German and European law – also requires that the EncroChat data not be used.

Reasons for inadmissibility:

• The individual-protective nature of Articles 31 and 6(1)(b) of the EIO Directive (2014/41/EU)

• Breach of the principle of a fair trial due to the lack of information

• Reduction in the probative value of the chat messages due to the lack of information