Ausgabejahr 2025
Erscheinungsdatum 13.02.2026

Nr. 002/2025

Judgment of 9 January 2025 – 1 StR 54/24

The First Criminal Panel of the Federal Court of Justice dismissed large parts of the defendant’s appeal on points of law (Revision) against the judgment handed down by Tübingen Regional Court on 20 October 2023. A retrial is already necessary in respect of the sentence imposed owing to the entry into force of the Act on the Controlled Use of Cannabis and Amending other Provisions (Gesetz zum kontrollierten Umgang mit Cannabis und zur Änderung weiterer Vorschriften) of 27 March 2024 and in all other respects owing to the incomplete findings concerning asset recovery.

The Regional Court sentenced the defendant to an aggregate term of seven years and six months’ imprisonment for 35 serious criminal offences of trafficking in narcotics in not insignificant quantities and ordered the confiscation of proceeds of more than 500,000 euros. The key evidence in nine of the cases comprised messages sent by the defendant in the course of organising his drug trafficking via the ANOM app hidden in the calculator function on his smartphone. In his appeal on points of law the defendant raised the complaint that the data obtained via the United States (U.S.) Department of Justice should not have been used in evidence in his criminal proceedings.

The Federal Court of Justice deemed this complaint not to be vigorous. It ruled that the data transmitted by the United States may be used in evidence if, as in this case, they serve the investigation of serious criminal offences.

1. Facts and circumstances on which the Federal Court of Justice’s ruling are based

a) According to the extensive documents submitted by the defendant in his appeal on points of law, the United States authorities were investigating a company which sold crypto phones exclusively to members of criminal organisations for the purpose of encrypted communication. After instituting criminal proceedings against those responsible in this company, the Federal Bureau of Investigation (FBI) had “ANOM” crypto phones developed specifically so they could be sold to criminal organisations. Even though each ANOM device was end-to-end encrypted, the FBI was, unbeknownst to users, in possession of the codes enabling each sent message to be decrypted. According to information provided by the U.S. Department of Justice, the server to which a copy of each message was sent had since the summer of 2019 been located in a Member State of the European Union (EU) whose identity the FBI did not reveal at that Member State’s request; it is not known why this third country requested secrecy in this matter. A court order was, according to the FBI, at any rate issued in the third country in October 2019 which enabled a copy of the server to be made and its content to be received.

b) The EU Member State forwarded the ANOM server data to the FBI by way of mutual legal assistance. According to the court order, the recovery and transmission of the data was restricted to 7 June 2021. The German Federal Criminal Police Office (BKA) was given access, for information purposes, to the decrypted content data with a link to Germany via an internet-based analysis platform. On 31 March 2021 Frankfurt am Main Chief Public Prosecutor’s Office initiated proceedings against the users of ANOM crypto phones; on 21 April 2021 it submitted a request for mutual legal assistance to the U.S. Department of Justice, which consented to the use of the transmitted data by letter dated 3 June 2021.

2. Legal considerations on which the Federal Court of Justice’s ruling was based

a) Section 261 of the Code of Criminal Procedure (Strafprozeßordnung) provides the constitutional legal basis for the use of evidence in criminal proceedings. It also applies to data obtained by way of mutual legal assistance. There is no explicit provision under German law according to which such evidence may only be used in a restricted manner.

b) There are no legal considerations which underpin the inadmissibility of improperly obtained evidence as asserted in the appeal on points of law.

aa) The question of whether improperly obtained evidence is inadmissible is to be answered solely on the basis of German law. The foreign investigatory measures were not to be assessed against the yardstick of foreign legislation. Nor is it decisive whether the German investigating authorities would have been permitted to proceed accordingly.

bb) There has been no violation of fundamental values of human rights or of fundamental rule-of-law requirements in the sense of the “ordre public” to be examined in the context of mutual legal assistance because a restriction was imposed on the interference with the privacy of telecommunications. The measures were directed solely against persons in respect of whom there were factual indications of involvement in offences of organised crime, specifically in the field of narcotics and weapons trafficking. In light of the high costs and the fact that the sales channels were limited to criminal circles (“designed by criminals for criminals”), the purchase of an ANOM crypto phone already raised the suspicion that the user was using the device to plan and commit serious offences of organised crime. Nor does the fact that the defendant was not able to directly challenge the orders issued in the third country and that the German criminal justice system was only aware of the existence and content of those orders by hearsay lead to the overall assessment that there has been a violation of the principle of a fair trial.

Lower Court:
Lower Regional Court Tübingen – judgment of 20 October 2023 – 2 KLs 42 Js 27225/22.

Karlsruhe, 9 January 2025