According to the Frankfurt Regional Court, decrypted messages from the crypto service Anom, which is secretly operated by the FBI, can be used as evidence.
The 17th major criminal chamber announced a corresponding decision on Tuesday in a case against the alleged operators of three cannabis plantations.
"According to a preliminary assessment," said the presiding judge, there was no ban on the use of evidence.
David Klaubert
Editor in the department "Germany and the World".
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The crimes the accused are accused of, namely dealing with narcotics in a gang, are so serious that surveillance measures can also be ordered in Germany if there is a suspicion of this.
The use of communication data from foreign criminal proceedings is generally permitted.
There is also no fundamental obligation to check the legality of data collection abroad.
Anom secretly operated for almost three years
The presiding judge referred to a decision by the Frankfurt Higher Regional Court in November, which had argued in a similar procedure as part of a detention review that bans on the use of evidence only applied in exceptional cases, for example if fundamental rights were violated when evidence was collected abroad or the general principles of the rule of law were violated had been.
The defense had objected to the collection and use of evidence of the Anom chats and justified their request, among other things, by saying that it was not possible to check where and on what legal basis the data had been collected. According to the FBI, it had marketed Anom itself and operated it secretly for almost three years in order to trap and monitor criminal organizations around the world. The data was therefore collected via a server in an unspecified “third country”, from where it landed first in the USA and then in Germany via legal assistance (a detailed article on the covert operation of the FBI and the Frankfurt case can be found here ).
As an official from the Federal Criminal Police Office confirmed as a witness in court, the German authorities were only informed about the background to the operation after they had been working together for several months. On the German side, this was perceived as "a bit of a breach of trust," said the BKA official. He also does not know which country the “third country” is.
On Monday, the Hanau district court had sentenced a man to four years and four months in prison for drug trafficking, who had also been caught by German investigators through Anom.
The accused had made a confession and named his supplier and the buyers of his drugs.
The question of the usability of the decrypted Anom messages therefore only played a subordinate role.
The Federal Court of Justice still has to decide on this anyway, said the presiding judge when the verdict was announced.