Did you know that your private conversations could be used against you, even if you haven’t committed any crime? This is what has happened to thousands of people following the EncroChat system hack. Discover if EncroChat evidence is legal in Spain and how you can defend yourself
What is EncroChat?
EncroChat was software designed to guarantee total privacy, accessible only through specialized devices.
Origin of EncroChat
EncroChat was presented as a revolutionary solution to protect user privacy. It was ideal for businesses and individuals concerned about the security of their communications.
How EncroChat became a tool for organized crime
However, this absolute privacy caught the attention of criminal organizations that sought to avoid detection by police. EncroChat became the preferred system for coordinating criminal activities, including drug trafficking, money laundering and other serious crimes.
The result? Thousands of users, legitimate and otherwise, have seen their conversations end up in police hands
The police operation dismantled EncroChat
In 2020, a coalition led by Europol, in collaboration with French and Dutch authorities, managed to hack the EncroChat system.
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Impact of EncroChat in Europe
The EncroChat intervention represented a radical change in the fight against organized crime. For the first time, authorities had direct access to private communications that revealed details of illicit operations in real time. In countries like France, Germany and the United Kingdom, this information led to:
- Thousands of arrests.
- The seizure of large quantities of drugs, weapons and money.
- The dismantling of transnational criminal networks.
However, this police success has its counterpart. European courts, including the Court of Justice of the European Union (CJEU), have begun to question whether these measures respected the rights of the accused, setting precedents that directly affect criminal proceedings in Spain.
Is evidence obtained through EncroChat valid?
The Court of Justice of the European Union (CJEU) ruled on April 30, 2024 in case C-670/22, known as the M.N. (EncroChat) case.
In this judgment, the CJEU addressed the legality of evidence obtained through the interception of the encrypted messaging service EncroChat by French authorities and its subsequent use in proceedings
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What does Spanish Justice say about EncroChat?
In Spain, so far EncroChat data has been key in proceedings related to drug trafficking and organized crime. The National Court has endorsed evidence obtained through EncroChat arguing that it does not violate fundamental rights of the accused provided it has been obtained in compliance with international regulations and through European investigation orders (EIO).
However, some proceedings have questioned the validity of EncroChat, arguing that intercepted communications could violate the right to secrecy of communications and the principle of proportionality. Despite this, the most recent judgments have confirmed its admissibility by considering that the data obtained respected the principle of international cooperation and did not constitute a prospective investigation. All of this is pending evaluation by the Supreme Court and the Court of Justice of the European Union (CJEU). For now, a first Supreme Court judgment has deemed it valid but leaves many gaps that you can read here.
When is evidence obtained through EncroChat valid for Spanish courts?
Spanish courts, especially the National Court, have recognized in recent judgments that for EncroChat evidence to be valid, it must meet these requirements:
- Respect fundamental rights such as secrecy of communications (Article 18 of the Spanish Constitution).
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EncroChat cases in other European Union countries
What do German courts say about EncroChat?
Recently, the 25th Criminal Chamber of the Berlin Regional Court acquitted the defendant of a drug trafficking offense in the judgment of case 525 KLs 8/22, 279 Js 30/22, dated December 19, 2024 because the prosecution was based exclusively on intercepted EncroChat messages obtained by French authorities and transferred to German police authorities in spring 2020.
The German court declared inadmissible the evidence obtained by French authorities and Europol, stating that the interception would have been unacceptable under German law due to its lack of proportionality. It determined that the interception would not have been permitted under German legislation, as the existing degree of suspicion did not justify a measure of such scope.
Furthermore, it emphasized that, although France and Germany may have different legal standards, the principle of European cooperation does not aim to standardize intervention criteria between states, but to facilitate collaboration while respecting national systems for protecting fundamental rights, including secrecy of communications.
How could this decision affect Spain?
The EncroChat case highlights the influence of German Criminal Law on the dogmatic construction of Spanish Criminal Law. Both jurisdictions share a key principle: investigations must focus on specific crimes, avoiding prospective or indi
Abogado penalista en Madrid (Graduado en Derecho y ADE con Máster de Acceso a la Abogacía), experto en procedimientos complejos y técnicos en Derecho Penal. Cuenta con títulos como el Curso de DerechoPenal Avanzado impartido por magistrados del Tribunal Supremo en el Iltre. Colegio de Abogacía de Madrid.