Expert Report: EncroChat and the „Chain of Custody“ – Digital Investigations as a Test for a Right to a Fair Trial?

Facts and content of the study:

Criminal proceedings are currently being pursued in numerous German cities on the basis of an analysis of EncroChat datasets from France. Although the legality of obtaining the data records and their usability have been discussed for quite some time and are partly questioned, the EncroChat information has so far been taken over by courts and public prosecutors largely unchecked. This study presents the technical background of the EncroChat hack and explains, on the basis of the so-called „chain of custody,“ the considerable constitutional weaknesses of the current investigation procedures and what must change in the future, also in terms of legal policy beyond EncroChat, if digital investigation procedures are to be operated in conformity with the constitution.

Key Findings:

  • Crime courts are required to satisfy themselves of the admissibility of data processing in encro-chat procedures. This includes all processing steps and also the raw data sets that are currently kept secret.
  • The right to a fair trial under the rule of law requires that the defense be granted comprehensive access. This also includes those documents that were created for the purpose of the investigation but were not taken into the file. A blanket refusal to allow access on the grounds of „jeopardizing ongoing investigations“ is not a permissible argument. This is the only way to ensure transparency of information between the state and its citizens. The current investigations therefore do not represent such a fair and constitutional procedure.
  • In terms of legal policy, it is necessary to demand that the standards for constitutional proceedings in the case of evidence collected by government agencies be set higher than they have been to date, especially for the use of digital investigative tools. Preventive protection of fundamental rights requires that investigating authorities make it possible to exercise the rights of the defense at a later stage, even in the case of infiltration of technical systems or other targeted data collection for the purposes of criminal prosecution. This necessarily means that the entire chain of custody must be transparently logged and accessible.

Link to download the whole expert report:

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