Order of 1 November 2024 - 2 BvR 684/22
In an order published today, the First Chamber of the Second Senate of the Federal Constitutional Court did not admit for decision a constitutional complaint challenging a criminal conviction. The complainant in the case challenged the use of evidence obtained by French authorities from the so-called EncroChat platform, which was provided to German authorities pursuant to a European Investigation Order (hereinafter: EIO).
The complainant, who had confessed to most of the acts at issue, was found guilty by judgment of the Regional Court (Landgericht) of ten counts of illicit trafficking of narcotic drugs in a significant amount and was sentenced to an aggregate prison term of five years. To 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. This data originated from investigations conducted by French authorities during the period of 1 April 2020 to 30 June 2020 and was transferred by Europol via the Chief Public Prosecution Office to regional public prosecution offices throughout Germany. The complainant’s appeal of the conviction on points of law was unsuccessful.
The constitutional complaint is inadmissible. Insofar as the complainant claims a violation of the right to be heard, a violation of the right to one’s lawful judge or a violation of fundamental rights that was relevant to the decision, the complaint does not satisfy the procedural requirements of substantiation. The Chamber further finds that based on the procedural history as determined by the Federal Court of Justice (Bundesgerichtshof), no violation of the complainant’s fundamental rights is ascertainable.
Facts of the case:
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. Consequently, 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 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 the Chief Public Prosecution Office 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.
Key considerations of the Chamber:
The constitutional complaint is inadmissible as it does not satisfy the procedural requirements of substantiation.
1. The complainant has not plausibly demonstrated a violation of the right to be heard that was determinative with regard to the judgment. The right to be heard under Art.103(1) of the Basic Law (Grundgesetz – GG) does include the obligation of courts to acknowledge the affected person’s arguments and take them into consideration. However, the absence of an express decision on a specific submission does not, absent exceptional circumstances, warrant the conclusion that the court did not consider the submission. A detailed discussion of the admissibility of EncroChat data in the written reasoning of the Regional Court was not to be expected, because according to the case-law of the Federal Court of Justice, there is in principle no obligation in the ordinary (non-constitutional) law to give reasons for the admissibility of evidence in the reasons for the judgment. Further, assuming any such violation of the right to be heard did occur at the level of the Regional Court, it was in any event cured at the appellate level by the Federal Court of Justice. In the challenged judgment, the Federal Court of Justice undertook an extensive review of the complainant’s submissions and the objections he raised on the issue of the admissibility of the EncroChat data and provided thorough reasoning as to why a prohibition against the use of this data as evidence was not justified under any legal point of view.
2. Nor has the complainant plausibly demonstrated a violation of the right to one’s lawful judge that was determinative with regard to the judgment. A denial of the right to one’s lawful judge can occur when a court fails to carry out its obligation to refer a question to another court. This may apply to the failure to institute a request for a preliminary ruling pursuant to Art. 267 of the Treaty on the Functioning of the European Union (TFEU).
a) As the Regional Court was not the national court of last instance, it was authorised to submit a request for a preliminary ruling (Art. 267(2) TFEU), but not obligated to do so (Art. 267(3) TFEU). The Federal Court of Justice also did not violate the right of the complainant to his lawful judge in a manner that was determinative by declining to request a preliminary ruling from the Court of Justice of the European Union (hereinafter: CJEU) based on the complainant’s submissions. The complainant does correctly assert that the Federal Court of Justice’s view that questions regarding the application of EU law do not require clarification because the question of the admissibility of evidence is governed by national law does not go far enough, at least with regard to Art. 267(3) TFEU. This is because a question of EU law can require clarification as a preliminary question because it is determinative for the decision. To the extent that the Federal Court of Justice also based its decision regarding the admissibility of EncroChat data on a finding that the collection and transfer of information did not violate any requirements of EU law that protected the complainant, a request for a preliminary ruling would have been possible, and possibly required, regardless of the fact that the relevant question at the end was the admissibility of the data in German criminal proceedings pursuant to national law.
b) However, the complainant did not satisfy his obligation to timely update his constitutional complaint when changes in the factual or legal situation occur that might be outcome determinative and to amend the reasoning for the complaint when necessary. On 30 April 2024, the CJEU issued a judgment (N. <EncroChat>, C-670/22, EU:C:2024:372) with regard to a request for preliminary ruling from the Berlin Regional Court on the question of the interpretation of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ EU No. L 130/1; hereinafter: EIO Directive) in connection with the same EIO and EncroChat data provided to the Chief Public Prosecution Office that is the subject of this constitutional complaint. The complainant would have had to show that, even taking this decision into account, there was a violation of the right to one’s lawful judge on which the challenged decision of the Federal Court of Justice was based. The complainant did not fulfil this obligation to substantiate his complaint.
c) Further, a violation of the obligation to request a preliminary ruling with regard to the issues raised by the complainant’s constitutional complaint is not (or no longer) apparent in this case. The challenged decision of the Federal Court of Justice is ultimately not based on the issues that would have constituted the request for a preliminary ruling. It is true that the CJEU, unlike the Federal Court of Justice, came to the conclusion that the transfer of evidence that is already in the possession of the competent authorities of the state executing the EIO is only possible when the authorities could have obtained the evidence under the same conditions in a similar domestic case. However, this does not call the decision of the Federal Court of Justice into question in this case, because the Federal Court of Justice in fact reviewed this very issue. The Federal Court of Justice’s comparison to a remote search of information technology systems available under domestic law pursuant to § 100b of the Code of Criminal Procedure (Strafprozessordnung – StPO), the product of which search is subject to the most restrictive limits under § 100e(6) of the Code of Criminal Procedure, was not constitutionally objectionable. On this basis, the Federal Court of Justice reached the conclusion that the EncroChat data could be used in the criminal proceedings against the complainant. The Federal Court of Justice therefore applied the test required by the CJEU.
d) To the extent that the complainant further argues that the Federal Court of Justice was required to submit to the CJEU the question of whether the measure authorised and carried out by the French authorities and courts, namely, extracting all communications traffic running over a server, which is not expressly included in the EIO Directive, can be the subject of an EIO, the challenged decision is also not based on this unreferred question. In its judgment of 30 April 2024, the CJEU effectively confirmed the conclusion of the Federal Court of Justice answering this question in the affirmative.
3. The complainant’s assertion of a violation of his general right of personality under Art. 2(1) in conjunction with Art.(1) of the Basic Law and his fundamental rights under Art. 7 and 8 of the Charter of Fundamental Rights of the European Union also does not satisfy substantiation requirements. The claim lacks a sufficient discussion of the standards developed by the Federal Constitutional Court with regard to these fundamental rights.
4. Independent of the foregoing, the Chamber further finds that based on the procedural history as determined by the Federal Court of Justice, which is decisive for the present constitutional complaint proceedings, no violation of the complainant’s fundamental rights is ascertainable; in particular, there is no indication of a violation of the general right of personality. The question of the admissibility of evidence obtained by mutual legal assistance is to be reviewed under domestic law. This also applies to information obtained through an EIO. The standard for review is first and foremost the fundamental rights in the Basic Law.
The use of personal information as the basis for a judicial decision constitutes an interference with the general right of personality. The right confers upon the individual to decide for oneself on the disclosure and use of one’s own personal data. However, the general right of personality is not guaranteed without reservation. Restrictions on the general right of personality for the protection of overriding public interests are permissible – to the extent that information from the core of private life is not used – when they are imposed either expressly by or on the basis of a law that sets out the requirements and scope of the restrictions sufficiently clearly and satisfies the principle of proportionality. The legal basis for the use of evidence in criminal proceedings in accordance with the Constitution is § 261 of the Code of Criminal Procedure. In principle, there are no special rules that apply with regard to the use of evidence received from outside Germany in German criminal proceedings. There is no general principle under constitutional law that the use of information as evidence is always impermissible if the information was unlawfully obtained. The established case-law of the criminal courts assumes that the question of whether a prohibition on the use of information as evidence applies is to be determined on the basis of the circumstances in the individual case. A presumption of a prohibition on the use of information as evidence is the exception. This is not objectionable under constitutional law.
According to these standards, the assessment of the Federal Court of Justice in the challenged order that the EncroChat data is not subject to a prohibition as to its use as evidence due to any procedural error is not objectionable under constitutional law. The judgment of the Regional Court did not rely on any information from the core of private life. The fact that the Federal Court of Justice made the use of the transferred information dependent upon whether the prerequisites of § 100e(6) and 100b(2) no. 5 letter b of the Code of Criminal Procedure – which were not directly applicable – were present, and thereby considered the issue from the point in time of the use of the information, does not raise constitutional concerns. In addition, on the basis of the facts of the case determined by the Federal Court of Justice, there are also no constitutional objections with regard to its assumption that the collection of the information carried out by the French authorities did not violate general principles of the rule of law in the sense of the domestic and European ordre public.