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On a Thursday in April, lawyer Matthias Wisbar tries to make it clear to the judges that fundamental rights are in danger.

"What happened here would be completely unthinkable under German criminal law," says the lawyer briskly and appeals: "Recognize the limits of state criminal prosecution!"

There is a simple reason why the defense attorney in Room 338 of the Hamburg Regional Court is so clear: It looks bad for Wisbar's client R., who is said to have sold kilos of cocaine and marijuana according to the indictment.

The lawyer now argues that the investigators had played unfairly.

It's about EncroChats, the synonym for the greatest European success in the past decades.

The provider sold converted cell phones, the encryption of which is considered insurmountable.

In 2020, however, the French gendarmerie hijacked the server that was in France and infiltrated the 32,000 crypto cell phones across Europe with a Trojan.

So the investigators could read along with all users - whether they were criminals or not.

Then they gave the data to the police authorities of the federal states via Europol.

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Thousands of dealers and gun dealers are now in custody, 40 cases based on EncroChat files are pending at the Hamburg district court alone - and defense lawyers are raging in pleadings and in courtrooms against digital fishing.

The lawyers accept legal defeats

"We see here how public prosecutors and police investigate without the rule of law," says the renowned Hamburg criminal defense attorney Thomas Bliwier.

He too has clients who have been exposed through EncroChat data.

According to Bliwier, the unproven claim that most of the users are criminals was enough for the authorities to eavesdrop on all cell phones, including those of innocent citizens.

"This is rightly forbidden in Germany, because with this argument any communication via a news service such as Threema or Signal can be monitored," said Bliwier.

The drug deal exchanges recorded in court documents

Source: WORLD

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But the lawyers accept one legal defeat after the other.

The Federal Constitutional Court has not accepted two complaints for decision and the higher regional courts in Hamburg, Bremen and most recently Rostock have approved the investigations.

The justifications really get the lawyers' pulse racing.

Even if something had been determined bypassing the law, there was a threat from the judiciary's point of view

namely no danger to the procedure.

The Hamburg Higher Regional Court found that evidence may also be used if the French authorities' actions were in some cases “no longer acceptable and contrary to the rule of law”.

The Federal Constitutional Court, in turn, did not accept two complaints on the matter for decision.

A final determination is still pending.

The Kiel lawyer Friedrich Fülscher criticizes “state zeal for persecution”, as he describes it.

In the opinion of the highest Hamburg judges, the end should apparently justify every means.

Fülscher, 36, is sitting in his office in an old town house in the elegant Düsternbrook district, the walls are adorned with legal caricatures by the French artist Honoré Daumier.

The lawyer is a specialist in hard cases, defending members of organized crime and the alleged murderer of Madeleine McCann, who disappeared in Portugal in 2007.

Fülscher tries to find out the truth about the Maddie McCann case

Source: Per Hinrichs

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Fülscher has just sent a complaint in which he attacks the previous jurisprudence.

“The Rostock Higher Regional Court demands that the accused provide proof of innocence.

But German criminal law does not provide that. ”If a complaint is successful, it will be painful for the prosecutor.

Dozens of criminals would have to be released, even though the burden of proof is overwhelming.

But Fülscher has no illusions: "They defend their prey by all means."

Based on the judgments passed so far, investigators are confident that they will be able to continue using the EncroChat files.

"The chats are so clear that the defense lawyers have little choice but to take action against the exploitation of the data and publicly give the impression that the French colleagues have broken the law," says Sebastian Fiedler, Chairman of the Association of German Criminal Investigators.

"I have the impression that many still do not want to admit how great the threats posed by organized crime really are."