EncroChat and (K)CanG
Introduction
In a recent decision by the Mannheim Regional Court, a case was heard that shows how far-reaching legal changes can have a direct impact on ongoing criminal proceedings. The core issue revolved around the usability of evidence obtained through encrypted messages on the EncroChat platform and how this was influenced by the new Cannabis Act that came into force.
Background to the case
A 36-year-old man was accused of smuggling around 450 kilograms of marijuana from Spain to Germany via France. The investigation against the man began after the analysis of encrypted chat messages on EncroChat, a platform frequently used by criminals. The evidence seemed overwhelming, but the legal framework changed significantly during the proceedings.
The role of the new Cannabis Act (CanG)
The recently passed Cannabis Act (CanG) has removed cannabis from the list of prohibited narcotics. This had a direct impact on the present case, as the defendant's actions fell under the new law, which was not yet in force at the time of the alleged offenses. At the main hearing, the Regional Court found that the evidence obtained through EncroChat could no longer be used in accordance with the previous strict provisions of the Narcotics Act (BtMG).
The decision of the Mannheim Regional Court
The 5th Grand Criminal Chamber of the Regional Court acquitted the defendant of the charges and gave the following reasons:
Usability of the EncroChat data: Due to the Cannabis Act, which has been in force since April 1, 2024, and the case law of the Federal Court of Justice, there is no longer a sufficient basis for the usability of the findings from the seized communication. The court emphasized that the amendments to Section 100b StPO and the new regulations in the KCanG have caused a fundamental shift in the assessment of criminal liability with regard to cannabis products.
Quality of the evidence: A confessional statement made by the defendant at the main hearing, which was then withdrawn, was not considered to be sufficiently qualified by the court and therefore did not provide a sufficient basis for conviction.
Lack of further usable evidence: Without the EncroChat data and the lack of confession, the court saw no other usable evidence that would justify a conviction.
The Chamber pointed out that, in accordance with Section 100e (6) No. 1 StPO and the specific requirements of Section 100b (2) No. 5a StPO, which only apply in certain serious cases, the data could not be used because the specific requirements did not apply in the defendant's case.
Charged or convicted according to § 29a para. 1 no. 2 BtMG: Recommended measures
Persons who have been charged or convicted pursuant to Section 29a (1) no. 2 of the Narcotics Act (BtMG) and are in pre-trial detention during appeal proceedings should immediately file an application for a detention review and seek to have the arrest warrant revoked. This could lead to their release from custody.
For defendants in ongoing proceedings, it is advisable to hire a criminal defense lawyer to ensure a comprehensive presentation of the factual and legal situation and to use the best possible defense strategies.
