FRC member Andreas Kanakakis published a blog post on UKAEL’s Blog (UK Association of European Law) regarding the recently delivered EncroChat Judgment by the CJEU. This contribution reflects part of the research Andreas carried out on evidence admissibility for the PROMODE project.
Abstract
On 30 April 2024, the Grand Chamber of the Court of Justice of the EU (CJEU) delivered a landmark ruling in the MN case (C-670/22), scrutinising the transfer of evidence related to the EncroChat network. Long anticipated, the decision addressed previous dispute between German Courts over the compatibility of using EncroChat data as evidence in criminal proceedings with fundamental rights.
EncroChat, a French service provider, offered end-to-end encrypted communication through modified smartphones, facilitating organised crime, primarily drug trafficking. In 2020, with authorisation from the Criminal Court of Lille, a Joint Investigation Team (JIT) comprising the French Gendarmerie Nationale and Dutch experts, hacked EncroChat phones, accessing encrypted data amounting to users in 122 countries, including Germany. The German Federal Criminal Police Office (Bundeskriminalamt) and Frankfurt’s Public Prosecutor’s Office requested the transmission of this data via European Investigation Orders (EIOs) under Directive 2014/41 (EIO Directive).
This evidence was then used in proceedings against MN, prompting the Regional Court of Berlin (Landgericht Berlin) to question the lawfulness of the EIOs before the CJEU. In its decision, the Court not only clarified the modalities of the issuance and execution of an EIO, underscoring its commitment to ensuring the efficacy of judicial cooperation tools, but also focused on guaranteeing fair trial and defence rights. It ruled that evidence acquired in violation of these rights must be excluded from criminal proceedings, establishing a new approach to evidence admissibility and marking a significant moment for the protection of fundamental rights.
Acknowledgement
This publication is made within the framework of the PROMODE project, supported by the Research Foundation – Flanders (FWOAL1089) and the Luxembourg National Research Fund (lNTER/FWO/22/17204313).