Order of 1 November 2024

R e a s o n s :

1

With his constitutional complaint, the complainant challenges the use of so-called ‘EncroChat data’ in the judgment of the Hamburg Regional Court of 15 July 2021 and the denial of his appeal on points of law (Revision) by the Federal Court of Justice in its Order of 2 March 2022. The data had been obtained by the French authorities in France and provided to the German authorities on the basis of a European Investigation Order (hereinafter: EIO).

I. 

2-35

[...]

[Excerpt from Press Release No. 104/2024 of 3 December 2024]

During the course of numerous criminal investigations in 2017 and 2018, particularly those involving the illegal trafficking of narcotic drugs, French authorities discovered that criminal suspects were using so-called ‘crypto’ smartphones that used an encrypted software system from EncroChat. Due to the encryption, it was not possible to analyse data from these mobile phones. French courts authorised prosecution authorities to undertake various measures in response, including gaining access to the EncroChat servers. An interception tool was installed via ‘remote infiltration’. The Federal Criminal Police Office (Bundeskriminalamt) was alerted by Europol to information that a number of serious criminal offences (particularly the illicit import and trafficking of narcotic drugs in a significant amount) had been committed in Germany using mobile phones with EncroChat encryption software. The EncroChat data obtained from 1 April 2020 to 30 June 2020 was transferred by Europol via a Land Public Prosecutor General (Generalstaatsanwaltschaft) to regional public prosecution offices throughout Germany.

The complainant, who had confessed to most of the acts at issue, was found guilty by judgment of the Regional Court of ten counts of illicit trafficking of narcotic drugs in not insignificant amounts and was sentenced to an aggregate prison term of five years. To advertise, buy and sell the narcotic drugs, the complainant used a mobile phone with an encryption system from the service provider EncroChat. The Regional Court based its decision on the analysis of EncroChat data as to those acts for which the complainant did not admit guilt. The complainant’s defence lawyer objected to the collection of the EncroChat data and its use as evidence on the first day of the trial hearing. The Regional Court issued its judgment without ruling on the objection. In its written reasons for the judgment, the issue of the admissibility of EncroChat data was not specifically addressed. The Federal Court of Justice denied the complainant’s appeal on points of law (Order of 2 March 2022 - 5 StR 457/21 -). It found the EncroChat data obtained and used in this manner to be admissible.

[End of Excerpt]

II. 

36

1. In his constitutional complaint of 19 April 2022, the complainant asserts a violation of his right to be heard, because the Regional Court did not explicitly address the issue of the admissibility of EncroChat data as evidence in its judgment and the Federal Court of Justice did not identify this as a violation of law in its order dismissing the appeal on points of law. The complainant further alleges a violation of his right to his lawful judge, because both the Regional Court and the Federal Court of Justice arbitrarily refused to refer relevant questions of law to the Court of Justice of the European Union (CJEU) for decision. Additionally, the complainant alleges that the order of the Federal Court of Justice violates his general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz – GG), as well as his rights under Art. 10 of the Basic Law and his fundamental rights guaranteed in Art. 7 and Art. 8 of the Charter of Fundamental Rights of the European Union. [...]

37-41

[...]

III. 

42

The constitutional complaint is not admitted for decision because it does not meet the prerequisites for admission pursuant to § 93a(2) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). The constitutional complaint does not have general constitutional significance (§ 93a(2) letter a Federal Constitutional Court Act), nor is its admission necessary to enforce the complainant’s constitutional rights within the meaning of § 93a(2) letter b of the Federal Constitutional Court Act (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 90, 22 <24 ff.>; 96, 245 <248 ff.>). The constitutional complaint is inadmissible. It does not satisfy the procedural requirements of substantiation as laid out in § 23(1) second sentence, § 92 of the Federal Constitutional Court Act.

43

1. To meet the requirements of § 23(1) second sentence, § 92 of the Federal Constitutional Court Act, the complainant must present the facts of the case that they claim amount to a violation of fundamental rights in a coherent and substantiated manner (cf. BVerfGE 81, 208 <214>; 113, 29 <44>; 130, 1 <21>). Furthermore, the constitutional complaint must consider the underlying ordinary law, analyse the constitutional significance of the case and provide sufficient substantiation for assuming that a violation of fundamental rights appears at least possible (cf. BVerfGE 28, 17 <19>; 89, 155 <171>; 140, 229 <232 para. 9>; 149, 346 <359 para. 23>). If the constitutional complaint is directed against judicial decisions, a substantiated argument for a violation of fundamental rights also requires a discussion of the reasoning underlying the challenged decision (cf. BVerfGE 105, 252 <264>; 140, 229 <232 para. 9>; 149, 346 <359 para. 24>). In this regard, the complainant must demonstrate in detail that the decision is based on the alleged violation of fundamental rights (cf. BVerfGE 89, 48 <60>) and thus must call into question in a substantiated manner all the reasons that form the basis of the decision in its entirety (cf. BVerfGE 105, 252 <264>). If existing case-law of the Federal Constitutional Court addresses the constitutional questions raised in the constitutional complaint, the alleged violation of fundamental rights must be substantiated in accordance with the constitutional standards developed by the Court; a generally phrased claim of a constitutional violation is insufficient in this regard (cf. BVerfGE 101, 331 <345 f.>; 123, 186 <234>; 130, 1 <21>; 140, 229 <232 para. 9>; 142, 234 <251 para. 28>; 149, 346 <359 para. 23>).

44

In addition, the submission of additional documents may be required to enable the Federal Constitutional Court to review the constitutional complaint without having to conduct further enquiry (cf. BVerfGE 93, 266 <288>; 149, 346 <360 para. 25>; Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 5, 170 <171>; cf. also European Court of Human Rights (ECtHR), Mork v. Germany, Judgment of 9 June 2011, no. 31047/04, 43386/08, §§ 37, 39). Consequently, the complainant may be required to submit the challenged judicial decisions, decisions of the lower courts, court correspondence, expert opinions, annexes referenced as well as written submissions and statements of all parties (cf. BVerfGE 112, 304 <314 f.>; BVerfGK 5, 170 <171>; 20, 249 <254>). However, a mere general reference to these documents is not sufficient, as it is not the task of the Federal Constitutional Court to examine the documents referenced and other annexes searching for constitutionally relevant facts or submissions (cf. BVerfGE 80, 257 <263>; 83, 216 <228>; BVerfGK 19, 362 <363>). In this regard, it is irrelevant whether the complainant references an annex, in which they submit previous written submissions or other parts of the case file to the constitutional complaint, or whether they try to integrate these – without further editing of the content – into the constitutional complaint itself (cf. Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 20 March 2012 - 2 BvR 1382/09 -, para. 5; Order of the Third Chamber of the Second Senate of 3 February 2021 - 2 BvR 2166/19 -, para. 4).

45

If the complainant wishes to deviate from the findings of fact or their interpretation by the ordinary courts, they must combine their alternative submission of the facts with a constitutional law challenge of the facts as established by the ordinary courts (cf. BVerfGE 83, 119 <124 f.>; Federal Constitutional Court, Order of the Second Chamber of the First Senate of 22 August 2012 - 1 BvR 573/12 -, para. 13; Order of the First Chamber of the Second Senate of 4 February 2016 - 2 BvR 2223/15 -, para. 57; Order of the First Chamber of the Second Senate of 9 August 2016 - 2 BvR 1287/16 -, para. 49).

46

Finally, it is the responsibility of the complainant to keep their constitutional complaint up to date in case of changes in the factual or legal situation which are relevant for the decision and, if necessary, to add to it at a later stage (cf. BVerfGE 106, 210 <214 f.>; 158, 170 <194 para. 57> – IT security vulnerabilities; Federal Constitutional Court, Order of the Second Chamber of the First Senate of 22 October 2021 - 1 BvR 1416/17 -, para. 7; Order of the First Chamber of the First Senate of 10 November 2022 - 1 BvR 1623/17 -, para. 8; Order of the First Chamber of the First Senate of 14 February 2023 - 1 BvR 2845/16 -, para. 8; Order of the Second Chamber of the First Senate of 5 September 2023 - 1 BvR 1691/22 -, para. 12; established case-law).

47

2. The constitutional complaint does not satisfy these requirements.

48

a) Insofar as the complainant bases his submissions on factual findings which differ from those made by the Federal Court of Justice in the proceedings on his appeal on points of law, the complainant did not challenge the findings of fact made by the Federal Court of Justice on a constitutional level. Consequently, the findings of fact as they have been established by the Federal Court of Justice are those applicable in the context of these constitutional complaint proceedings.

49

b) Insofar as the complainant alleges a violation of the right to be heard, he already fails to present the standards developed by the Federal Constitutional Court in this regard and to apply these standards to the facts of the case (see aa) below). Regardless of this, the complainant fails to conclusively demonstrate a violation of the right to be heard that would have been decisive in the present case (see bb) below).

50

aa) In his constitutional complaint, the complainant essentially substantiates the alleged violation of his right to be heard with a reference to the ‘reasoning of the defence in the grounds for the appeal on points of law’. The constitutional complaint itself does not contain any elaborations regarding the constitutional standards applicable in the context of Art. 103(1) of the Basic Law. The referenced written submissions setting out the grounds for the appeal on points of law also fail to establish these standards. Consequently, the complainant fails to apply these standards to the alternative set of facts which he submits. It is therefore not relevant that a mere reference to submitted annexes may not replace the constitutional analysis that is inherently required in a constitutional complaint (cf. BVerfGE 80, 257 <263>; 83, 216 <228>; BVerfGK 19, 362 <363>).

51

bb) But even regardless of this, the constitutional complaint fails to conclusively demonstrate a possible violation of Art. 103(1) of the Basic Law. The submissions made in the constitutional complaint do not show that the Regional Court or the Federal Court of Justice violated the right to be heard in a way that was decisive for the outcome of the proceedings in either of the challenged decisions.

52

(1) The right to be heard enshrined in Art. 103(1) of the Basic Law not only provides those affected with a right to plead their position and a right to information, but also encompasses the obligation of the courts to acknowledge and consider their submission (cf. BVerfGE 11, 218 <220>; 47, 182 <187>; 83, 24 <35>). This obligation is not limited by the fact that the court, in accordance with established case-law of the Federal Constitutional Court, is not required to explicitly address every submission made by the parties to the proceedings in the written reasons given for its decision (cf. BVerfGE 42, 364 <367 f.>).

53

However, Art. 103(1) of the Basic Law is only violated if it can be clearly established in a specific case that the court disregarded this obligation (cf. BVerfGE 65, 293 <295>; 86, 133 <145 f.>). In order for the Federal Constitutional Court to be able to establish a violation of Art. 103(1) of the Basic Law, certain circumstances in a specific case must make it evident that the factual submissions made by a party were either left completely unacknowledged or at least not considered in the decision-making process (cf. BVerfGE 27, 248 <251 f.>; 65, 293 <295 f.>; 86, 133 <146>; 96, 205 <216 f.>). If, however, a certain submission forms an essential part of a party’s pleadings and its decisive importance for the outcome of the case is evident, the court is generally obligated to explicitly address the arguments submitted (cf. BVerfGE 47, 182 <188 f.>; 86, 133 <146>; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 22 May 2024 - 2 BvR 51/24 -, para. 57). However, in cases in which procedural law allows or requires the submissions to be disregarded, the obligation to consider cannot result in a requirement for the court to state its reasons in writing (cf. BVerfGE 54, 86 <91 f.>).

54

Art. 103(1) of the Basic Law does not obligate the court to conduct a legal discussion during a hearing or to give an indication of its legal view (cf. BVerfGE 31, 364 <370>; 84, 188 <190>; 86, 133 <145>; 98, 218 <263>). Therefore, even if the legal situation is controversial or problematic, a party to the proceedings must generally consider all tenable legal aspects of their own accord and make their submissions accordingly (cf. BVerfGE 86, 133 <145>; 98, 218 <263>). It is only in exceptional cases that the Constitution requires the court to point out to the parties to the proceedings a legal view on which it intends to base its decision (cf. BVerfGE 86, 133 <144>; 98, 218 <263>). If the court bases its decision on a legal aspect that even a diligent and competent party to the proceedings could not have anticipated, even when considering all of the many legal views tenable, without prior notification of the parties, this can have the same effect as if the court were to actively prevent a submission on the legal situation (cf. BVerfGE 86, 133 <144 f.>; 98, 218 <263>; 108, 341 <345 f.>; Federal Constitutional Court, Order of the First Chamber of the Second Senate of 8 December 2005 - 2 BvR 1769/04 -, para. 3; Order of the First Chamber of the Second Senate of 4 March 2024 - 2 BvR 184/22 -, para. 28 f.).

55

It is generally possible to remedy a violation of the right to be heard in the same proceedings or in the course of appeal proceedings if the court in question is able to take into account the submissions that were (previously) overlooked (cf. BVerfGE 5, 22 <24>; 62, 392 <397>; 73, 322 <326 f.>; 107, 395 <411 f.>; BVerfGK 15, 116 <120>).

56

The assertion of a violation of the right to be heard can only be successful if the challenged judicial decision is based on a violation of Art. 103(1) of the Basic Law. This requires that it cannot be ruled out that, without the violation of the right to be heard, the court would have come to a different conclusion on the facts of the case, would have made a different evaluation of a central aspect of the case or would have reached an altogether different decision with an outcome that would have been more favourable to the complainant (cf. BVerfGE 7, 239 <241>; 18, 147 <150>; 28, 17 <19 f.>; 112, 185 <206>; established case-law). In light of this, the complainant must, if necessary, show in the constitutional complaint what they would have submitted to the court if they had been granted their right to be heard (cf. Federal Constitutional Court, Order of the First Chamber of the Second Senate of 4 March 2024 - 2 BvR 184/22 -, para. 48 with further references; established case-law).

57

(2) Based on these standards, the constitutional complaint does not show in a conclusive manner a violation of the complainant’s right to be heard that was significant for the decision in the case at hand.

58

(a) Firstly, this applies insofar as the constitutional complaint might be understood in the sense that it alleges that the Regional Court failed to consider the complainant’s arguments challenging the admissibility of the so-called ‘EncroChat data’, because it did not explicitly rule on them in the written reasons for its judgment.

59

(aa) In this regard, it need not be decided whether the grounds for the complaint are already insufficiently substantiated because they do not explicitly address the oral summary of the reasons for the judgment given at the conclusion of the main hearing in accordance with § 268(2) of the Code of Criminal Procedure (Strafprozessordnung – StPO) or whether the claim that the Regional Court did not discuss it ‘during the main hearing’ was still a sufficiently clear statement of the fact that the court did not explain the admissibility of the transcripts of the chats in its oral summary of the reasons of the judgment, which, according to § 260(1) of the Code of Criminal Procedure, forms part of the main hearing. If the presiding judge had given an explanation in the oral summary of the reasons for the judgment justifying the admissibility assumed by the court, this alone would negate a violation of the right to be heard.

60

(bb) As demonstrated, it is only under specific circumstances that the lack of an explicit ruling can lead to the conclusion that the court did not consider an argument at all. The complainant did not demonstrate such circumstances.

61

(α) The Regional Court was not obligated by ordinary law to explicitly rule on the question of admissibility of evidence during the main hearing. The Code of Criminal Procedure does not contain a provision which requires such a ruling to be made during the main hearing. Accordingly, the established case-law of the ordinary courts also denies a defendant’s right to an interlocutory ruling on the admissibility of evidence (cf. Decisions of the Federal Court of Justice in Criminal Matters, Entscheidungen des Bundesgerichtshofes in Strafsachen – BGHSt 65, 155 <162> with further references; at the level of constitutional law, such an obligation in criminal proceedings does also not follow from the right to a fair trial, cf. Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 18 March 2009 - 2 BvR 2025/07 -, para. 17 f.). [...]

62

(β) Furthermore, the Regional Court was not obligated under ordinary law to rule on the objections of the complainant regarding the admissibility of the EncroChat transcripts in the written reasons for the judgment. The required contents of the written reasons are laid out in § 267 of the Code of Criminal Procedure. According to that provision, the written reasons must contain those facts which establish the statutory elements of the criminal offences which the court considered to be proven true, § 267(1) first and second sentence of the Code of Criminal Procedure. The wording of that provision does not, however, indicate that procedural questions, such as those regarding the admissibility of evidence, must be discussed in the written reasons. In light of this and in accordance with the case-law of the Federal Court of Justice, the ordinary courts do not have a general obligation under ordinary law to justify the admissibility of evidence in the written reasons (cf. BGHSt 51, 1 <5>; Federal Court of Justice, Judgment of 8 August 2018 - 2 StR 131/18 - juris, para. 18 with further references). [...]

63

(γ) Not least because of the legal situation under ordinary law therefore, the Regional Court was not expected to discuss the admissibility of the EncroChat transcripts in the written reasons for the judgment. As a result, the silence of the written reasons on this matter cannot amount to a special circumstance that would justify the conclusion that the Regional Court did not consider this submission made by the complainant. This is not changed by the fact that the question of the admissibility of the EncroChat data, explicitly raised by the complainant’s defence counsel, played a significant role in the proceedings before the Regional Court.

64

(cc) Even if it were to be assumed that the complainant’s objections to the admissibility had been disregarded, the complainant also does not indicate in what way the judgment of the Regional Court would be based on this fact. Based on the arguments made in the constitutional complaint, it is not evident that the Regional Court incorrectly assumed that the EncroChat transcripts were admissible. Rather, the Federal Court of Justice affirmed the admissibility of the transcripts as evidence just as the Regional Court had done; for the reasons outlined above, the constitutional objections raised by the complainant are not valid.

65

(dd) Lastly, even if a violation of the right to be heard on the part of the Regional Court were to be assumed, it would have been remedied by the Federal Court of Justice during the proceedings on the appeal on points of law.

66

In the case at hand, a remediation during the proceedings on the appeal on points of law was possible, as the Federal Court of Justice was able to consider both the factual submissions made by the complainant with regard to the modalities of collecting the EncroChat Data, i.e., the facts relevant to the question of admissibility, as well as his legal arguments regarding this matter. This is because the court deciding the appeal on points of law makes its own decision both with regard to the legal question of the admissibility of evidence and the determination of the facts relevant for this question. These facts are established through the free consideration of evidence, meaning that the court is not restricted by the strict procedural rules which apply to evidence used to establish a defendant’s criminal liability and sentencing (Freibeweisverfahren) (cf. Federal Court of Justice, Judgment of 8 August 2018 - 2 StR 131/18 -, juris, para. 19). It is the view of the court deciding the appeal on points of law alone which is decisive; any determinations made by the court of first instance – which are not obligatory – are not binding on the court deciding the appeal (cf. Federal Court of Justice, Judgment of 8 August 2018 - 2 StR 131/18 -, juris, para. 19).

67

In its order challenged here, the Federal Court of Justice conducted a comprehensive analysis of the submissions and objections of the complainant and provided a detailed explanation as to why no legal point of view could lead to an inadmissibility of the evidence. Thus, even if a violation of the right to be heard by the Regional Court were to be assumed, it would have been remedied.

68

(b) If – what need not be decided here – the complainant’s assertion of a violation of the right to be heard must (also) be understood in the way that he asserts that he was prevented from making any further submissions during the proceedings before the Regional Court or in his grounds for appeal, because he was not given a (timely) indication by the Regional Court or because of a lack of detail in the written reasons for the judgment, he also did not conclusively demonstrate a violation of the right to be heard that was significant for the decision in the case. The complainant does not indicate what he would have presented additionally or differently, had he been provided with the desired information by the Regional Court or had the court given the desired reasons for the decision. On the contrary, he argues in the constitutional complaint that he had already comprehensively challenged the admissibility of the evidence in the proceedings before the ordinary courts. In any case, this does not show that the challenged decisions are based on the alleged violation of the right to be heard.

69

c) The complainant also does not conclusively demonstrate a violation of the right to his lawful judge under Art. 101(1) second sentence of the Basic Law relevant for the decision in the present case.

70

aa) A person seeking justice can be deprived of the right to their lawful judge if a court disregards its obligation to refer the case to another court for a preliminary ruling (cf. BVerfGE 3, 359 <363>; 9, 213 <215 f.>). This can also be the case if a court fails to request a preliminary ruling in accordance with Art. 267 of the Treaty on the Functioning of the European Union (TFEU) (cf. BVerfGE 73, 339 <366 ff.>; 75, 223 <233 f.>; 82, 159 <195 ff.>; 135, 155 <230 f. para. 177>). The unity of EU law is threatened if its laws are applied differently in different Member States. This is why Art. 267 TFEU functionally integrates the CJEU into the court systems of the Member States in those cases where the CJEU is tasked with the interpretation and application of EU law for the sake of legal certainty and uniform application of the law (cf. BVerfGE 73, 339 <368>).

71

However, not every failure to comply with the duty of referral amounts to a violation of Art. 101(1) second sentence of the Basic Law (cf. BVerfGE 29, 198 <207>; 82, 159 <194>; 126, 286 <315>; 135, 155 <231 f. para. 180>; 147, 364 <380 para. 40>). A simple error of the court regarding its own jurisdiction (error in procedendo) does not deprive anyone of their lawful judge (cf. BVerfGE 3, 359 <365>; 138, 64 <87 para. 71>). The Federal Constitutional Court limits its review to whether the allocation of jurisdiction set out in Art. 267(3) TFEU is interpreted and applied in a manner that does not seem comprehensible and must be considered manifestly untenable when critically appraising the Basic Law’s central notions (standard of arbitrariness; cf. BVerfGE 82, 159 <194 f.>; 126, 286 <315>; 128, 157 <187>; 135, 155 <231 para. 179 f.>; 147, 364 <380 para. 40>). This limited review by the Federal Constitutional Court grants the ordinary courts a margin of appreciation and assessment when interpreting and applying EU law. The Federal Constitutional Court only ensures that the limits of this margin of appreciation are observed (cf. BVerfGE 126, 286 <316>; 135, 155 <232 para. 180>; 147, 364 <380 para. 40>).

72

In particular, the duty of referral under Art. 267(3) TFEU is handled in a manifestly untenable manner when – in the view of the court of last instance in the underlying proceedings – an issue of EU law is relevant to the proceedings, and yet the court does not even consider making a referral despite having doubts as to the correct resolution of the issue in question (fundamental disregard of the duty of referral). The same applies when a court of last instance in the underlying proceedings reaches a conclusion that deliberately deviates from the case-law of the CJEU on relevant issues, but nevertheless chooses not to request a (new) preliminary ruling (deliberate deviation without willingness to refer). If an issue of EU law that is relevant for a court decision has not yet been addressed in the case-law of the Court of Justice, if it appears possible that the existing case-law does not exhaustively address the relevant issue, or if further development of the jurisprudence by the Court of Justice is more than just a remote possibility, a violation of Art. 101(1) second sentence of the Basic Law can only be found if the competent court of last instance in the underlying proceedings untenably exceeds the margin of assessment that it must be afforded in such cases (incomplete case-law). This applies, in any case, if the ordinary courts arbitrarily assume the existence of an ‘acte clair’ or an ‘acte éclairé’ (cf. BVerfGE 135, 155 <232 f. para. 181 ff.>; 147, 364 <380 f. para. 41 ff.>; each with further references).

73

In this respect, it is incumbent upon the court to sufficiently research the relevant substantive EU law. Where case-law of the CJEU is applicable to the case at hand, it must be analysed and reflected in the decision rendered by the court (cf. BVerfGE 82, 159 <196>; 128, 157 <189>). On this basis, in applying and interpreting the relevant substantive EU law (cf. BVerfGE 75, 223 <234>; 128, 157 <187>; 129, 78 <107>), the ordinary court must reach the reasonable conclusion that the applicable legal standards are either clear from the outset (‘acte clair’) or clarified beyond reasonable doubt in the case-law of the CJEU (‘acte éclairé’; cf. BVerfGE 129, 78 <107>). If the issue has not yet been fully resolved in the CJEU’s case-law, Art. 267(3) TFEU is applied in an untenable manner particularly if the competent ordinary court concludes that the legal situation is clear from the outset or clarified beyond reasonable doubt without providing objective reasons supporting this conclusion (cf. BVerfGE 135, 155 <233 para. 185>; 147, 364 <381 f. para. 43>).

74

Similarly, in the context of the right to one’s lawful judge under Art. 101(1) second sentence of the Basic Law, a court decision may only be reversed if the challenged decision is based on the procedural violation, meaning that it appears possible that the procedural violation impacted the content of the decision (cf. BVerfGE 4, 412 <417>; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 4 December 2023 - 2 BvR 1699/22 -, para. 72 with further references). If the procedural violation impacted the composition of the court called upon to render the decision, the possibility that the content of the decision was impacted, generally, cannot be ruled out (cf. BVerfGE 4, 412 <418>; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 4 December 2023 - 2 BvR 1699/22 -, para. 72 with further references). However, if the violation of Art. 101(1) second sentence of the Basic Law only consists of the failure to comply with the duty of referral under Art. 267(3) TFEU, this is not the case as long as it can – even retrospectively – be ruled out that the CJEU would have answered the question withheld from it in a way that is different from that of the national court in the challenged decision or that the CJEU would have answered the question in a way that would have caused the national court to ultimately reach a different decision.

75

bb) By these standards, the complainant’s submissions do not make a relevant violation of the right to one’s lawful judge appear possible.

76

(1) Insofar as the complainant claims that his right to his lawful judge was already violated by the fact that the Regional Court failed to refer the case to the CJEU, this overlooks the fact that although the CJEU generally is a ‘lawful judge’ within the meaning of Art. 101(1) second sentence of the Basic Law (cf. BVerfGE 73, 339 <366>; 135, 155 <230 para. 177>; established case-law), a violation of that provision can only be considered if a court is obliged to request a preliminary ruling in accordance with Art. 267(3) TFEU (cf. BVerfGE 73, 339 <368 f.>; 82, 159 <192 f.>, each regarding the provision previously included in Art. 177 of the Treaty establishing the European Community; 135, 155 <231 f. para. 177>). In the case at hand, these preconditions are not met: Because the Regional Court was not the national court of last instance, it was only permitted to make a referral in accordance with Art. 267(2) TFEU, but not obliged to do so under Art. 267(3) TFEU.

77

(2) The complainant’s claim that the Federal Court of Justice violated his right to his lawful judge by failing to make a referral to the CJEU with regard to legal questions relevant to the decision in the case at hand cannot be successful either.

78

(a) However, the complainant is correct in assuming that the Federal Court of Justice did err, at least with regard to Art. 267(3) TFEU, in finding that the case raised no questions of EU law because the admissibility of evidence is governed by national law and therefore remains unaffected by the EIO Directive.

79

While the CJEU also assumes that the question of admissibility of evidence in national criminal proceedings is a question of national law (cf. Judgment of 30 April 2024, M.N. <EncroChat>, C-670/22, EU:C:2024:372, para. 128), this does not allow the conclusion drawn by the Federal Court of Justice, that the case at hand does not raise any questions of EU law within the meaning of Art. 267 TFEU that would require clarification. This is because a case may raise a question of EU law which requires clarification – because it is decisive for the underlying case – even if it is only a preliminary question that arises with regard to the application of national law and only concerns one of a number of aspects to be considered in the underlying case. In this regard, whether the question is relevant for the underlying case depends on whether the answer to the potential preliminary question could affect the outcome of the decision to be made under national law. If this is possible, the preliminary question is relevant for deciding the underlying proceedings. In this case the national court of last instance is obligated to refer the question to the CJEU in accordance with Art. 267(3) TFEU. Insofar as the Federal Court of Justice also based its decision on the admissibility of the EncroChat transcripts on the assumption that their collection and transmission did not violate provisions of EU law protecting the complainant, a referral would have had to be considered and may even have been required regardless of the fact that at the end of the day, the question of the admissibility of the findings in German criminal proceedings is a question which must be answered by applying national law.

80

However, whether this incorrect approach of the Federal Court of Justice can amount to a violation of Art. 101(1) second sentence of the Basic Law under the circumstances stated ultimately does not need to be decided.

81

(b) This is because, in any case, the complainant failed to meet his obligation to keep the constitutional complaint up to date in light of changes in the factual or legal situation relevant for the decision and to add to the constitutional complaint at a later stage if necessary. Following a referral by the Regional Court of Berlin, the CJEU issued a preliminary ruling (Judgment of 30 April 2024, N. <EncroChat>, C-670/22, EU:C:2024:372), which concerned questions regarding the interpretation of the EIO Directive in connection with the EIO of the Frankfurt am Main Land Public Prosecutor General, which also forms the basis for the present constitutional complaint, and the EncroChat data which was transferred on its basis. In light of this preliminary ruling, the complainant would have been required to show that in due consideration of that decision, too, there was a violation of the right to his lawful judge on which the decision in the present case was based. The complainant did not meet this requirement. It does not suffice to merely submit an essay making this argument that was published in a law journal.

82

(c) Materially, too, a violation of the duty of referral with regard to the questions addressed by the complainant in the constitutional complaint cannot (or can no longer) be established.

83

(aa) The complainant raised as the (or a) reason for the obligation to refer the question whether the information transmitted via a spontaneous data exchange could be legitimised retrospectively through an EIO and which conditions must be met for this to happen. It is not clear how this question would have been significant for the Federal Court of Justice’s decision in this case. The complainant bases his constitutional claim on factual findings which differ from the facts of the case as determined by the Federal Court of Justice in the challenged order. When relying on the facts of the case as determined by the Federal Court of Justice, this question does not arise.

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(bb) Furthermore, the complainant challenges the decision not to refer the question to the CJEU whether Art. 6(1) letter b of the EIO Directive must be applied by way of analogy to an EIO in accordance with Art. 1(1) second sentence of the EIO Directive, which only concerns the transmission of evidence that is already in the possession of the competent authorities of the executing state. This would mean that such EIOs could only be rendered if, in a comparable case under national law, the measure on which the data collection is based could have been ordered under the same conditions. In practical terms, this would require the application of the German provisions on obtaining evidence on the measures taken by French authorities which resulted in the collection of the relevant evidence. In the challenged order, the Federal Court of Justice – without referring the question to the CJEU – took the view that Art. 6(1) letter b of the EIO Directive is not applicable to an EIO within the meaning of Art. 1(1) second sentence of the EIO Directive – i.e., an EIO for the transmission of data that is already in the possession of the competent authorities of the executing state.

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It is not necessary to determine whether the Federal Court of Justice was entitled to reach this conclusion without prior referral to the CJEU. This is because, in any case, the decision of the Federal Court of Justice is not based on this failure to refer. In its judgment of 30 April 2024 (M.N. <EncroChat>, C-670/22, EU:C:2024:372, paras. 91, 106), the CJEU answers the question on the applicability of Art. 6(1) letter b of the EIO Directive to an EIO for the transmission of data that is already in the possession of the competent authorities of the executing state differently from the Federal Court of Justice. The CJEU held that Art. 6(1) letter b of the EIO Directive is applicable to an EIO for the transmission of evidence that is already in the possession of the competent authorities of the executing state in such a way that this transmission must be permissible under the same conditions in a comparable case under national law. However, this discrepancy does not call into question the decision of the Federal Court of Justice in the case at hand. This is because, substantively, the Federal Court of Justice also considered whether the transmission of data would have been permissible under the same conditions in a comparable case under national law. As a comparable measure in national law, the Federal Court of Justice considers, in a constitutionally unobjectionable manner, covert remote searches of IT-systems in accordance with § 100b of the Code of Criminal Procedure. Findings obtained under this provision are subject to the most restrictive limitations on the use of evidence in criminal procedural law, which are laid down in § 100e(6) of the Code of Criminal Procedure. On this basis, the Federal Court of Justice reaches the conclusion that the use of EncroChat data in the criminal proceedings against the complainant was permissible. Thus, the Federal Court of Justice already applied the test that would also have resulted from the application of Art. 6(1) letter b of the EIO Directive on the data transmission process, as demanded by the CJEU. Ultimately, it is of no consequence that this test was undertaken not by applying Art. 6(1) letter b of the EIO Directive accordingly, which corresponds to the legal view of the CJEU, but, as practised by the Federal Court of Justice, by taking direct recourse to § 100e(6) of the Code of Criminal Procedure.

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(cc) The complainant also asserts that the Federal Court of Justice was required to refer to the CJEU the question whether the measure of collecting all communication conducted via a specific server – approved and carried out by French courts and authorities – which itself is not governed by the EIO Directive, could form the subject of an EIO. However, the challenged decision in the appeal on points of law is also not based on the fact that the Federal Court of Justice refrained from referring to the CJEU in this regard. Substantively, the CJEU confirmed the legal view of the Federal Court of Justice in its judgment of 30 April 2024 (cf. N. <EncroChat>, C-670/22, EU:C:2024:372). Thus, it can be ruled out that the Federal Court of Justice would have reached a different decision if it had conducted the referral proceedings.

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(dd) If the constitutional complaint is to be understood in a way that the complainant also objects to the Federal Court of Justice not requesting a preliminary ruling from the CJEU on the question whether Art. 31 of the EIO Directive is applicable, this, too, does not lead to a violation of the obligation to refer that was significant for the decision in the case at hand.

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In its decision challenged here, the Federal Court of Justice, notwithstanding the question whether the collection of data even amounted to a measure of telecommunications surveillance in accordance with that provision – which it left unanswered – decided that the notification obligation under Art. 31 of the EIO Directive only provides individual protection insofar as it relates to the use of evidence in another country. The CJEU takes a different view in its judgment of 30 April 2024: It not only held that the investigation measures conducted by the French authorities in the context of EncroChat amount to an interception of telecommunication in accordance with Art. 31(1) of the EIO Directive (M.N. <EncroChat>, C-670/22, EU:C:2024:372, para. 119), but it also determined that the aim of Art. 31 of the EIO Directive was to protect the targeted individual, and that this aim also extends to the use of data in the notified Member State – in this case Germany (M.N. <EncroChat>, C-670/22, EU:C:2024:372, para. 124).

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The assumption of an obligation to refer on the part of the Federal Court of Justice is nevertheless precluded by the fact that in its view – which is relevant here – the questions on points of law raised with regard to Art. 31 of the EIO Directive were not relevant to the decision in this case. The Federal Court of Justice stated that even if the provision of Art. 31 of the EIO Directive, contrary to the view taken by the court, provided individual protection in the sense of protection from the use of such evidence in Germany, the necessary balancing of interests would still result in the evidence being found to be admissible.

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d) The violations of fundamental rights alleged by the complainant (general right of personality, Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, as well as the rights under Art. 10 of the Basic Law and Art. 7 and 8 of the Charter of Fundamental Rights) do not meet the substantiation requirements of § 23(1) second sentence, § 92 of the Federal Constitutional Court Act. The constitutional complaint already lacks sufficient substantiation of the standards developed by the Federal Constitutional Court in this regard. The constitutional complaint therefore does not include an application of these standards to the case at hand.

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3. Aside from this, the Chamber wishes to point out that, on the basis of the facts of the case as determined by the Federal Court of Justice – which, as shown above, are the relevant facts for the assessment of this constitutional complaint – there is no indication that fundamental rights of the complainant have been violated. In this regard, the following must be noted in particular:

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a) The judgment of the Hamburg Regional Court and the order of the Federal Court of Justice form the direct subject of review of this constitutional complaint. The constitutional complaint challenges the use of the EncroChat data provided by French authorities insofar as they relate to the complainant. Questions on the permissibility of the use of evidence obtained via mutual legal assistance must be answered by national law (cf. CJEU, Judgment of 6 October 2020, La Quadrature du Neta., C-511/18, C-512/18, C-520/18, EU:C:2020:791, para. 222; Judgment of 30 April 2024, M.N. <EncroChat>, C-670/22, EU:C:2024:372, para. 128) This also applies to findings obtained through an EIO (cf. CJEU, Judgment of 30 April 2024, M.N. <EncroChat>, C-670/22, EU:C:2024:372, para. 128). First and foremost, the fundamental rights of the Basic Law therefore form the standard of the assessment. This is because the application of national law, which is not fully determined by EU law, is assessed by the Federal Constitutional Court primarily with reference to the standard set out in the Basic Law (cf. BVerfGE 152, 152 <169 para. 42 f.> – Right to be forgotten I).

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b) A violation of the complainant’s general right of personality in accordance with Art. 2(1) in conjunction with Art. 1(1) of the Basic Law can be ruled out.

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aa) (1) The use of personal data in a court decision interferes with the general right of personality (cf. BVerfGE 34, 238 <245>; 80, 367 <376, 379 f.>; 106, 28 <39, 44>; 130, 1 <35>; BVerfGK 14, 20 <23>). The general right of personality guaranteed under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law encompasses in its specific manifestations, inter alia, the right to one's own speech, the right to one's own image and the right to informational self-determination (cf. BVerfGE 35, 202 <220>; 54, 148 <153 f.>; 106, 28 <39>; 118, 168 <183 ff.>; 130, 1 <35>). Depending on the type of information used in a decision by a criminal court, this can amount to an interference with the right to one’s own image (cf. § 267(1) third sentence of the Code of Criminal Procedure) or the right to one’s own speech (through the reproduction of statements) (cf. BVerfGE 106, 28 <44>; 130, 1 <35>). If no specific manifestation of the general right of personality is affected, the use of personal information at least amounts to an interference with the right to informational self-determination. In principle, this right guarantees the authority of the individual to decide themselves on the disclosure and use of their personal data (cf. BVerfGE 65, 1 <41 f.>; 78, 77 <84>; 80, 367 <373>; 113, 29 <45 f.>; 115, 166 <187 f.>; 115, 320 <341>).

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However, as provided for in Art. 2(1) of the Basic Law, the general right of personality is not guaranteed without limitation. Limitations to the general right of personality are permissible for the protection of interests of the general public which outweigh the individual interest in that right, if they occur through or on the basis of a law that outlines the prerequisites and the extent of the limitation in a way that is both sufficiently clear and compatible with the principle of proportionality (cf. BVerfGE 65, 1 <44, 54>; 67, 100 <143>; 78, 77 <85>; 84, 239 <279 f.>; 92, 191 <197>; 115, 320 <344 f.>; 130, 1 <36>). However, a justification of that interference is not possible if information is used that forms part of the core of private life. Data that forms part of the core of private life is protected by an absolute inadmissibility as evidence in criminal proceedings that follows from Art. 1(1) of the Basic Law (cf. BVerfGE 109, 279 <324, 331 f.>; 120, 274 <337>).

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(2) The legal basis for the use of evidence in criminal proceedings, which is itself compatible with constitutional law, is § 261 of the Code of Criminal Procedure (cf. BVerfGE 130, 1 <29 ff.>; the same was held previously without closer justification in Federal Constitutional Court, Second Chamber of the First Senate BVerfGK 17, 311 <314>). Generally, the same applies to the use of evidence that was sourced abroad and introduced into German criminal proceedings. Information that was either obtained legally or introduced into the criminal proceedings in accordance with the constitutional requirements is generally admissible on the basis of § 261 of the Code of Criminal Procedure (cf. BVerfGE 130, 1 <36 ff.>). If the information was obtained illegally, there is no general constitutional principle that states that the use of information gathered in such a way is always inadmissible (cf. BVerfGK 9, 174 <196>; 18, 193 <202 f.> with further references to the established case-law developed through Chamber Decisions of the Federal Constitutional Court).

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Assessing the consequences of a violation of law in the process of obtaining information or bringing it into the criminal proceedings and deciding whether such a violation leads to an inadmissibility of evidence is primarily the task of the competent ordinary courts (cf. BVerfGE 130, 1 <31>; BVerfGK 4, 283 <285>; 9, 174 <196>; 14, 107 <111>; 18, 193 <203>). In practice, it is the established case-law of the criminal courts that there is no fundamental principle in criminal procedural law which stipulates that every violation of the law on obtaining evidence automatically leads to an inadmissibility of such evidence in the context of criminal procedure. Consequently, the question whether a violation leads to an inadmissibility of the evidence must be answered on a case-by-case basis, taking into account the specific circumstances, especially the nature of the violation and its weight in a balancing of the relevant conflicting interests (cf. BVerfGK 14, 107 <111>; BGHSt 38, 214 <219 f.>; 44, 243 <249>; 51, 285 <289 f. para. 20>; […]). An inadmissibility of evidence is the exception, not the rule, as it can only be assumed on the basis of an explicit legal rule or due to overarching, important reasons in an individual case (cf. BGHSt 40, 211 <217>; 44, 243 <249>; 51, 285 <290 para. 20>).

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This is not objectionable under constitutional law (cf. BVerfGK 9, 174 <196>; 16, 22 <27>; BVerfG, Order of the Third Chamber of the Second Senate of 1 March 2000 - 2 BvR 2017/94, 2 BvR 2039/94 -, para. 10 f.; Order of the Third Chamber of the Second Senate of 30 June 2005 - 2 BvR 1502/04 -, para. 8). Although criminal procedural law does not demand that the truth be found ‘at all costs’, an inadmissibility of evidence curtails a fundamental principle of criminal procedural law, namely the idea that the court must investigate the truth and must therefore, ex officio, collect evidence on all relevant facts and with all available means (cf. BVerfGK 18, 193 <203>). The rule of law can only be achieved if there are sufficient safeguards to ensure that criminals are prosecuted and sentenced in accordance with the applicable law and that they receive just punishment (cf. BVerfGE 33, 367 <383>; 46, 214 <222>; 122, 248 <272 f.>; established case-law). Yet, an inadmissibility of evidence is compulsory under constitutional law in case of severe, deliberate or arbitrary procedural violations, which disregard fundamental rights guaranteed in a methodical and systematic way (cf. BVerfGE 113, 29 <61>; BVerfGK 18, 444 <449>; BVerfG, Order of the Second Chamber of the Second Senate of 15 July 1998 - 2 BvR 446/98 -, para. 14; Order of the First Chamber of the Second Senate of 16 March 2006 - 2 BvR 954/02 -, para. 26 f.). An absolute inadmissibility of evidence based directly on fundamental rights was only recognised by the Federal Constitutional Court in cases where the core of private life was affected (cf. BVerfGE 34, 238 <245 f.>; 80, 367 <374 f.>; 109, 279 <324>).

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bb) The assessment of the Federal Court of Justice in the challenged order, that the EncroChat data is not inadmissible as evidence due to procedural errors, is unobjectionable under constitutional law according to these standards. The judgment of the Regional Court did not make use of any information that forms part of the core of private life. The Federal Court of Justice, according to its balancing of the relevant conflicting interests, makes the use of information – collected abroad in a way that does not violate the fundamental principles of the rule of law that form part of the national or European ordre public ([...]) – dependent on the requirements of § 100e(6), § 100b(2) no. 5 letter b of the Code of Criminal Procedure. This is unobjectionable under constitutional law, although these provisions are not directly applicable, as is the fact that the Federal Court of Justice considers the time of use of the information to be the relevant time for the assessment of the provisions. In doing so, the Federal Court of Justice does not, in any case, fall short of the constitutional requirements with regard to the principle of proportionality. Likewise, the assumption of the Federal Court of Justice, that the collection of evidence conducted by the French authorities did not violate fundamental principles of the rule of law that form part of the national or European ordre public, is constitutionally unobjectionable on the basis of the facts of the case as it found them to be.

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In accordance with § 93d(1) third sentence of the Federal Constitutional Court Act, no further reasons are given.

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This decision cannot be appealed.