top of page

The EncroChat hack

What about the legality of EncroChate evidence?

French authorities had established in 2017 that suspects used crypto mobile phones of the provider ‘EncroChat’ in the commission of offences related to narcotics. In Spring 2020, a Joint Investigation Team (JIT) in cooperation with Dutch experts developed a Trojan software which was installed with authorization of the criminal court in Lille through a simulated update on the devices of nearly half of the 66.134 registered users, located in 122 countries (including 380 users in France and approximately 4.600 users in Germany).

 

The Trojan software allowed to obtain the device identifiers (IMEIs) of the end devices, email addresses, the date and time of the communication, the location data, the texts and images transmitted in the ongoing chats, as well as content of not yet deleted device memories. In relation to end devices located abroad, the gained data were transmitted to national investigative authorities, including the German Bundeskriminalamt, the German Federal Criminal Police Office, via a Europol server. In June 2020, the General Public Prosecutor’s Office of Frankfurt am Main issued an EIO requesting the French authorities to be able to use the EncroChat data in criminal proceedings without restriction—authorization for this was granted by the criminal court in Lille.

 

In October 2022, a court in Berlin has lodged a reference for preliminary ruling with the CJEU inquiring whether the transfer from one MS to another of data gained through the hack in question is in line with EU law. Considering that under German law, only a judge could have ordered the investigative measures through which the requested data were obtained and that in a similar domestic case such measures would not have been allowed with respect to users that were not concerned by specific suspicions, the German court asked the CJEU for clarifications on the required degree of judicial control in the issuing state, the required necessity and proportionality checks, the respect of the principle of equivalence, and the necessity to exclude evidence gathered in violation of EU law.

Join our mailing list for updates on publications and events

Thanks for submitting!

© 2022 by MEIOR

logo_ce-en-rvb-hr.jpg

Funded by the

Justice Programme (JUST) (2021-2027)

of the European Union

Project ID: 101046446

bottom of page