Sky-ECC incidental findings in court: Freiburg ruling clarifies admissibility of evidence
The Freiburg Regional Court has definitively established when incidental findings from Sky-ECC chats are admissible as evidence. Identical chat protocols can be assessed differently depending on the specific charge.
Sky-ECC chat data as evidence: Freiburg Regional Court sets standards
The Freiburg Regional Court has clarified in a final judgment (case number: 45/24 7 NBs 610 Js 30788/23) under what conditions so-called incidental findings from the encrypted communication service Sky ECC are admissible in criminal proceedings. As heise online reports, the legal assessment of the same chat protocols can lead to different outcomes depending on the specific charge.
Background: European Investigation Order and buyer in focus
The starting point of the proceedings was a case from 2021. The defendant had purchased 1.5 kilograms of marijuana from the main offenders and resold the drugs for profit. The basis of the charge was formed by chats that French authorities had transmitted within the scope of a European Investigation Order (EIO) against the dealers. Only when this communication was being evaluated did the defendant come into focus as a buyer for the investigators.
The District Court of Freiburg initially acquitted him. The public prosecutor's appeal was only partially successful.
Decisive factor: timing of evidence use and the "State Trojan II" ruling
The Regional Court made clear that data transmitted from abroad, which identifies previously uninvolved persons, are to be classified as incidental findings. Their admissibility is not governed by the rules of the EIO, but by the Code of Criminal Procedure (StPO). The decisive factor here is the timing of evidence use. In this context, the Federal Constitutional Court's "State Trojan II" ruling also had to be considered.
According to this ruling, covert telecommunications monitoring may only be used to investigate serious crimes. A statutory maximum sentence of five years alone is insufficient. In addition to the sentence range, the concrete circumstances of the particular offence are decisive.
Same evidence material, different outcomes
These constitutional requirements led to contradictory assessments of identical evidence material:
In the case of completed trafficking, the second instance affirmed the required factual severity. Although the Cannabis Consumption Act provided only a moderate sentence range in this case, the quantity of marijuana, which exceeded the "not insignificant amount" threshold tenfold, highlighted the offence qualitatively. The chat protocols could therefore be used as evidence and led to a conviction for cannabis trafficking in a particularly serious case.
The assessment of the charge of aiding and abetting further marijuana trafficking turned out differently: due to the mandatory sentencing mitigation for accomplices, the sentence range was a maximum of three years' imprisonment. The threshold for a serious crime was therefore not reached. The Code of Criminal Procedure prohibits the use of corresponding incidental findings in this case, which is why the chats were disregarded to this extent and a partial acquittal was entered.
Suspended sentence and confiscation of approximately 8,000 euros
Despite conviction on the other count, the court limited itself to an admonition with suspended sentence and ordered confiscation of the sales proceeds of approximately 8,000 euros. In doing so, the court took particular account of the long time elapsed since the offence, the absence of previous convictions, the partial confession, a successfully completed gambling addiction therapy, and the partial decriminalisation of cannabis in the meantime.
Source: heise online