CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 janvier 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 3 February 2025   SECOND SECTION Application no. 27618/21 Murat SILGIR against Germany lodged on 10 May 2021 communicated on 16 January 2025 SUBJECT MATTER OF THE CASE The application concerns the applicant’s pre-trial detention and the use of EncroChat user data by the German courts to establish a suspicion for drug trafficking as a member of a gang. From 2018 onwards the French authorities investigated EncroChat, an encrypted mobile-phone telecommunications tool which operated as a closed network. The investigation culminated in the remote retrieval of EncroChat user data, including text messages, by the French authorities from 1 April to 2 June 2020 (for further details regarding the French investigation see A.L.   and E.J. v. France (dec.), nos. 44715/20 and 47930/21, §§ 4-34, 24   September 2024). Pursuant to a European Investigation Order issued by the Frankfurt am Main Chief Public Prosecutor’s Office the French authorities transferred the data to the prosecutor’s office via the German Federal Office for Criminal Investigation, in so far as they concerned criminal acts committed in Germany. German investigative authorities decrypted and sifted through the transferred data and conducted further investigative measures to identify the senders and recipients of the text messages exchanged over EncroChat. On 16 September 2020 the applicant was arrested under an arrest warrant issued by the Bremen District Court. By decision of 3 November 2020 the Regional Court and by decision of 18 December 2020 the Court of Appeal upheld the arrest warrant. The Court of Appeal confirmed that there was a strong suspicion that the applicant had trafficked in cocaine and marihuana. This suspicion had been established by multiple text messages exchanged over EncroChat, which could be attributed to the applicant. The use of the EncroChat data by the German authorities had been permitted by the European Investigation Order. On 11 February 2021 the Federal Constitutional Court declined to admit the applicant’s constitutional complaint for adjudication. Invoking Articles 5 and 8 of the Convention, the applicant complained that the German courts had used the illegally obtained private communication data as sole justification for his pre-trial detention. QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s right to respect for his private life or correspondence, within the meaning of Article   8 §   1 of the Convention (compare Big Brother Watch and Others v. the United Kingdom [GC], nos. 58170/13 and 2 others, §§ 495-496, 25 May 2021;   Van Vondel v.   the   Netherlands , no. 38258/03, § 49, 25 October 2007; Copland v.   the   United Kingdom , no. 62617/00, § 43, ECHR 2007-I; and Malone v.   the   United Kingdom , 2 August 1984, § 64, Series A no. 82)?   In particular, did the use of the EncroChat data by the German courts and authorities in the pre-trial detention proceedings constitute an interference with the applicant’s right to respect for his private life or correspondence?   If so, was that interference in accordance with the law and necessary in terms of Article   8 §   2 of the Convention?   2. Was the applicant deprived of his liberty in breach of Article   5 of the Convention?   Was the applicant’s pre-trial detention “lawful” and ordered “in accordance with a procedure prescribed by law” (see for the general principles Saadi v. the United Kingdom [GC], no. 13229/03, §§ 67-70, ECHR   2008)?   Was there a reasonable suspicion of the applicant having committed an offence (compare, for the relevant principles, Selahattin   Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 314-315, 22   December 2020; and Ibrahimov and Mammadov v. Azerbaijan , nos.   63571/16 and 5   others, §§ 113-131, 13   February 2020)?