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Cybercrime Criminal Defense

EUGH: Prohibition of exploitation in case of insufficient possibility of defense

In the course of the current rulings on data retention, the EU Court of Justice (C-339/20 and C-397/20) has ruled in a further case on a certain handling in France. What appears on the surface to be a pure data retention issue turns out, on closer inspection, to be a potentially landmark decision for the German criminal justice system.

Overview: EUGH sees ban on exploitation

Thereby, the line I have pointed out here is not new, already in “La Quadrature du Net” (EUGH; C-511/18, C-512/18 and C-520/18, there para. 226 and 227) it caught the eye and was then formulated in EUGH, C-746/18, quite generally as a – at that time already quite disregarded – principle:

Whether it is necessary to exclude information and evidence obtained in breach of Union law must be assessed, in particular, in the light of the risk posed by the admissibility of such information and evidence to the preservation of the principle of the adversarial process and thus to the right to a fair trial.

If a court concludes that a party is unable to comment properly on evidence that originates from an area in which the court does not have expertise and that is capable of significantly influencing the assessment of the facts, it must find a violation of the right to a fair trial and exclude that evidence in order to prevent such a violation.

EUGH, C‑746/18

This principle is again emphasized in concrete terms in the current decision:

The principle of effectiveness requires a national criminal court to exclude, in the context of criminal proceedings against persons suspected of having committed criminal offences, information and evidence obtained through general and indiscriminate retention of traffic and location data which is incompatible with Union law or through access by the competent authority to the data in question in breach of Union law, exclude persons who are not in a position to comment properly on the information and evidence, who have a background in which the court does not have expertise and who are likely to influence the assessment of the facts to a significant extent

EUGH, C-339/20 und C-397/20

German balancing doctrine put to the test

The weighing doctrine practiced in Germany (there is no general prohibition of exploitation, but the seriousness of the violation in the collection of evidence and the significance of the crime are to be weighed against each other!) – in combination with the form of the free judicial evaluation of evidence practiced in our country, which for example in Encrochat proceedings led to the uncontrolled transfer of “evidence” from abroad on demand – is difficult to reconcile with this in our opinion. Even if, as a rule, the EU Court of Justice does not necessarily prohibit the use of evidence:

However, this objective [prevention of undue prejudice] can be achieved in national law not only by prohibiting the use of such information and evidence, but also by national rules and practices for the assessment and weighting of the information and evidence or by taking into account their illegality in the context of sentencing (judgment of 6  October 2020, La Quadrature du Net and Others, C-511/18, C-512/18 and C-520/18, EU:C:2020:791, para. 225).

EUGH, C‑746/18

However, the EU Court of Justice takes a two-step approach to blatant cases, if the decisions cited here very briefly are placed in an overall context: First, it must be examined whether the collection of evidence is already contrary to EU law; in this case, the issue was data retention.

If there is evidence that has been collected in violation of EU law, the EU Court of Justice expressly states that there is an absolute prohibition on the use of such evidence if the party to a proceeding has

(…) is not in a position to comment properly on [this] evidence, which originates from an area in which the court does not have expertise and which is capable of significantly influencing the assessment of the facts

It is difficult not to think of Encrochat or Sky-ECC with this formulation. And there is the risk that the results of the investigation, which were very carefully waved through by the Federal Court of Justice and the Higher Regional Court, could be viewed extremely critically at the European level. Quite incidentally, the principle formulated here in the meantime in several ECJ decisions – sometimes abstract, sometimes concrete – that it must be critical if a court cannot assess evidence from its own sphere and the party (the defendant) cannot comment on it, is just as self-evident as an open declaration of war on the balancing doctrine.

Certainly not in the short term, but at least in the medium term, courts in Germany should get used to the idea that – long overdue – changes are rolling towards German criminal trials. In recent years, legislators have increasingly gutted the formalized criminal process under the guise of a supposed increase in efficiency. The modern enemy image of defense lawyers, who only delay trials, was often used, ignoring the fact that political austerity has caused courts to be overburdened, and that a lack of modern design still does not allow public prosecutors to work economically, for example in the case of dismissals. The ECJ now makes it clear that traditional principles are not set in stone forever – if politics and higher court jurisprudence do not react soon, a rude awakening may threaten.

German Lawyer Jens Ferner (Criminal Defense & IT-Law)
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