The use of data from the messenger app ANOM — obtained from the USA through mutual legal assistance and introduced as evidence in German criminal proceedings — raises no constitutional concerns in principle. The constitutional complaint was not admitted for decision because it failed to set out a violation of fundamental rights with sufficient particularity.
Significance for extradition and mutual-assistance practice
The case itself is not an extradition proceeding: it concerns a narcotics conviction handed down by the Mannheim Regional Court, whose evidentiary basis — chat data from the messenger app ANOM — had reached Germany from the USA through classic mutual legal assistance. Even so, the order is of direct interest for extradition practice, because the BVerfG expressly borrows its central standard of review from extradition dealings: evidence obtained abroad is governed by the same principle of mutual trust that also underlies the granting of extraditions. Anyone arguing in extradition detention matters, or over the admissibility of Interpol or EAW supporting documents, will find here a current, directly relevant leading decision of the BVerfG on the reach of this trust principle.
The trust principle: a bridge between mutual legal assistance and extradition law
The BVerfG made clear that evidence obtained through mutual legal assistance is governed by the principle of mutual trust — expressly by analogy with extradition dealings. Compliance with minimum rule-of-law standards in the foreign state may be presumed as long as no contrary facts undermine that presumption. This transposition is instructive for extradition practice: the same presumption of trust that applies when a European or international arrest warrant is granted now also shapes the constitutional review of evidence obtained abroad. According to the Chamber, a prohibition on using the evidence may come into play where the foreign collection of evidence infringes the indispensable protection of fundamental rights under Art. 79(3) GG in conjunction with Art. 1 and Art. 20(3) GG, or where the minimum standards of public international law under Art. 25 GG have not been observed — the very same grounds that can undermine that presumption of trust and be raised against granting an extradition where the requesting state risks rule-of-law shortfalls.
ANOM: developed by the FBI, distributed worldwide
ANOM was a messenger app developed by the FBI and covertly distributed to criminal networks. The software installed on the ANOM devices ensured that, without the user's knowledge, an encrypted copy of every message sent was transmitted to a so-called iBot server. There it was decrypted by the FBI, stored again in encrypted form and forwarded to a transfer server. An EU member state that remains unknown to this day provided the server and forwarded the data to the USA without evaluating it itself. From there the data reached Germany through mutual legal assistance. The case differs from EncroChat and Sky ECC in that here the investigating authority itself operated the communications infrastructure — which raises the question of state-induced entrapment and of the requirement of a statutory basis, an issue that also recurs regularly along international mutual-assistance and extradition chains.
The BVerfG's decision: inadmissible, but with pointers
The BVerfG did not admit the constitutional complaint for decision because it was inadmissible: the complainant had not coherently set out the possibility of a violation of fundamental rights. On the basis of his own submissions, the essential circumstances of the data collection were known, so that the objection that "practically nothing" was known about how the evidence had been obtained contradicted itself. For extradition practice, this procedural standard is just as relevant as the substantive holding: there too, the BVerfG regularly demands a concrete, case-specific showing of why the presumption of trust in the requesting or assisting state should be considered undermined — generalized doubts do not suffice in either setting.
Duty to refer to the ECJ: standard made specific
The complainant had also argued that the BGH had violated its duty to refer under Art. 267(3) TFEU. The BVerfG made the standard of review more specific: the duty to refer is handled in an untenable manner where the court of last instance does not even consider a referral despite the question being decisive for the outcome (fundamental disregard), or where, in cases of existing ECJ case law, the outcome-relevant question may not yet have been answered exhaustively and the court exceeds the scope of its assessment in an indefensible way (incompleteness of the case law). In the specific case, the Chamber considered that the BGH had stayed within its scope of assessment. The same duty-to-refer doctrine applies whenever questions of EU-law interpretation arise in connection with a European Arrest Warrant — for instance on framework-decision-compliant handling of grounds for refusal.
Significance for extradition detention and mutual-assistance cases
The decision does not close the door entirely. The BVerfG expressly emphasized that "so far" it has no findings that would in principle support a prohibition on the use of evidence — wording that leaves room for future developments. For extradition proceedings this means: where a requesting state bases an extradition (also) on evidence that was itself obtained through international mutual legal assistance or via Interpol channels, the trust principle confirmed here by the highest court can be specifically challenged, provided concrete facts are put forward that call into question minimum rule-of-law standards in the state where the data was originally collected. The legal literature discusses, among other things, breaches of the core area of private life, state-induced entrapment as "structural unfairness", and the impossibility of subsequently reviewing how the evidence was obtained — lines of argument that can be transposed to the review of granting an EAW or to extradition dealings with third states. The BVerfG's high requirements for substantiation are a reminder to build the corresponding factual submissions carefully already at the extradition-granting or extradition-detention stage — including the question whether a referral to the ECJ under Art. 267(3) TFEU should be suggested.