In the Dutch EncroChat cases, it proved difficult for the defence to obtain information about the way the evidence was collected and which investigatory powers were used. After unrelenting questions from criminal defence lawyers, more details finally became available through Dutch court decisions. These details, coupled with the official press releases about the operation, made it possible to reconstruct the EncroChat operation .
Keeping the operation secret challenges the right to a fair trial under article 6 echr, more specifically the principle of equality of arms. Part of the principle of equality of arms is transparency about the manner in which the evidence is gathered. At the same time, law enforcement authorities and the public prosecutor can have a legitimate interest in keeping information about the operation secret.
For example, for national security reasons, to keep certain police methods secret, or to protect the privacy of others. However, as the ECtHR explained in case law, keeping this information secret is allowed only insofar as it is strictly necessary. In order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.
We believe that – to a certain extent – information about how evidence was collected and which investigatory powers were applied should be available to the defence. This enables the defence to challenge the legality of the operation and thereby challenge possible abuse of power by law enforcement authorities. In addition, judges should be able to decide on the method of acquisition and reliability of the evidence.
This is especially important in the context of EncroChat, in which (complex) software is used to collect the data. The use of software challenges the confidentiality, integrity and availability (cia-triad) of data and can have a major influence on the reliability of evidence.
So far, there are no details available about the software that was used in the EncroChat investigation.Dutch defence lawyers frequently question the integrity of EncroChat data that is used as evidence in criminal proceedings.
The main argument is that the data shared by French law enforcement authorities is processed and different from the original data stored on EncroChat phones. In Dutch case law, it is reported that the Netherlands Forensic Institute conducted an investigation and found that the messages obtained from French law enforcement authorities were not different from the messages later found and decrypted on five seized EncroChat phones. However, they did find that the hacking and interception software did not operate continuously, not all messages on EncroChat phones were intercepted during the operation, and there had been instances of a mix-up in outgoing and incoming calls from EncroChat phones.
Each time, the defence failed to establish in which respect the data that is used as evidence is unreliable or why it tainted all EncroChat data used as evidence. Moreover, often times, there were multiple sources of evidence (besides EncroChat data) available in these criminal proceedings. Therefore, it has never been successfully argued by Dutch lawyers that the data from the EncroChat operation used as evidence is not reliable. As a result, no data from the EncroChat operation used as evidence has ever been excluded in Dutch criminal cases.
In sum, the defence can argue that the defence and judiciary must have sufficient details of the evidence gathering activities and the (further) processing of EncroChat data in order to have a fair trial in accordance Article 6 echr. In Dutch case law, this ultimately provided more details about the EncroChat operation and presented the opportunity to test the reliability of the evidence derived from collected EncroChat data.
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