Mr. Kipker, what exactly bothers you about the Encrochat proceedings?
I don’t want to talk about an ignorant attitude on the part of the courts and public prosecutors, but it does go in that direction. The court has a duty to clarify. So here is the question of how the Encrochat data was technically collected. The French invoke an alleged military secret in order not to have to disclose this. This is highly controversial, now also in France. And in our country, without taking this aspect into account, convictions are being sought with very significant threats of punishment.
You criticize the fact that it is neither comprehensible how the French police obtained the data, nor what happened to them on their way to the German courts? And you doubt the legality of the whole thing?
German investigators would not have had the authority to tap the Encrochat data in the first place. French authorities have been monitoring the communications of thousands of people for months. Of course, that includes potential criminals. But constitutionally, every German citizen has a basic right to confidential digital communications.
You mean the „shot in the dark“ often cited by defense lawyers without any concrete initial suspicion?
Exactly. That is inadmissible in our country. The German Code of Criminal Procedure does not provide for such mass surveillance. If German authorities then use foreign investigations, they are operating outside the rule of law and their legal options.
Now, however, this data does not come from any rogue states, but from France. Can we not trust the investigative authorities there?
You mention the principle of mutual recognition. This means that each member state of the European Union recognizes the law of another member state as equivalent. What is lawful in one member state is therefore also lawful in every other member state and is not reviewed again on the basis of the member state’s own standards. Of course, one can argue in this way. But this ends at the point of the constitutional principle of separation at the latest.
The strict separation between police and constitutional protection in Germany?
Correct. In France, intelligence agencies were probably involved that would not have been allowed to do so under German law. You can’t say we’re getting around that because we trust the good work of other authorities.
But isn’t this discussion very theoretical? Would you release the drug and gun dealers who have now been convicted?
That’s a separate question. This is first about a fair trial and the rule of law. In Germany, the presumption of innocence applies. Everyone is considered not guilty until proven guilty. You have to look at these legal considerations separately from the defendants and the offenses that Encrochat is about. It could affect any other citizen in the future. It’s about abstract constitutional issues.
So beyond the Encrochat cases?
It’s generally about how digital evidence can be used in criminal proceedings now and in the future. If we go and say that any data from abroad, of which we don’t know exactly where it came from, who processed it in the meantime, and whether everything was legal, is sufficient to open criminal proceedings against anyone, then we have a significant problem with the rule of law.
Nevertheless, the question remains as to how we deal with Encrochat cases.
Actually, it’s quite simple. There will be court rulings, but they will probably be overturned sooner or later, insofar as these rulings are based exclusively on Encrochat data. Because their use is simply inadmissible. Courts and authorities can already prepare themselves for this.
So ultimately the Federal Constitutional Court will decide?
I am very sure that it will. The Federal Constitutional Court will very likely set limits. And then it will have to be examined whether or not these limits were observed in the Encrochat cases. If not, the entire cases will have to be reopened.
Does that mean that, for the sake of principle, I have to let all these people go?
For the sake of principle, yes. And that’s what we’re talking about here, which has been largely ignored so far. But this debate is not new. Think back to the 1970s, to the Schleyer kidnapping. When the ban on torture was discussed. Or the question of whether the police may force a kidnapper to make certain statements beyond the law by using force or the threat of physical violence. Only what the laws allow is permissible. If we allow the state to operate beyond the law in certain exceptional cases because it is generally felt to be good for the common good, then we no longer need a legal basis or a rule of law.
But is it not also necessary to maintain general legal peace? Who is to understand that all these drug dealers get away with it?
As I said, this is not about general legal peace. If the state is not able to prove crimes with its means, there can be no conviction. Nor is it the case that the state has no digital investigative powers whatsoever. On the contrary, a lot has been added in recent years. But these powers must remain within constitutional limits, otherwise we will only harm legal peace more than we help it.