EncroChat and Fair Trial Rights - An International Perspective
Five years have passed since the joint investigation team between French and Dutch authorities, with Europol’s assistance, successfully infiltrated EncroChat servers and intercepted millions of encrypted messages.[1] BSQ Partner and international criminal law specialist Roger Sahota together with litigation assistant Pragya Sinha Kumar examine how various international courts across Europe have approached challenges to the use of Encrochat evidence in criminal investigations and proceedings subsequently.
As a result of the Encrochat operation, 746 arrests were made in the UK alone in 2020.[2] EncroChat permanently shut down its services in the same year.
A more slow-moving process has been the establishment of judicial guidelines about the how EncroChat evidence affects a suspects’ rights to fair trial. Lawyers across Europe have raised serious concerns about authorities relying on such evidence without disclosing details about how it was obtained. In France, the interception tool used in the 2020 investigation has been classified as a national defence secret.
The present blog post focuses on what may be gleaned so far from the limited occasions on which Europe’s senior-most courts, the European Court of Human Rights (“ECtHR”) and the Court of Justice of the European Union (“CJEU”), have dealt with the fallout of infiltrating EncroChat and similar networks.
Yalçinkaya v. Türkiye (App No. 15669/20) [GC] - 26 September 2023
The Grand Chamber of the ECtHR had been tasked with determining whether an applicant’s conviction based on ByLock evidence breached Article 6 of the European Convention of Human Rights (“the Convention”). ByLock was an encrypted messaging application which Türkiye claimed had been created for and used exclusively by the Gülen movement, a designated terrorist organisation in Türkiye. The ECtHR found that the use of the ByLock evidence in the applicant’s case did indeed violate his right to fair trial under Article 6 of the Convention.
The ECtHR acknowledged that evidence of an individual using an encrypted messaging service can be important when fighting organised crime (§312). However, it also noted specific issues with such evidence. These included that it was particularly vulnerable to destruction or manipulation, and that it was difficult for judges to establish its authenticity.
The ECtHR reasoned that the right to fair trial was violated by the lack of sufficient procedural safeguards to balance against the applicant’s inability to access the ByLock data against him.
1. Firstly, the applicant should have had the opportunity to challenge his lack of access. However, he was deprived of this opportunity as the domestic courts did not explain why the data was kept from him (§331).
2. Secondly, the domestic courts should have responded properly to his request that the ByLock data be independently examined. This was because there was nothing on the case file suggesting the data had ever been verified for its contents and integrity (§332-333).
3. Thirdly, the domestic courts should have scrutinised more thoroughly the reliability of the ByLock evidence, because the applicant had no direct access to it (§334).
4. Fourthly, the applicant’s lack of opportunity to become familiar with any of the ByLock material against him adversely affected his right of defence (§336).
5. Fifthly, the domestic courts should have dealt with the argument that the applicant needed access to refute the argument that Bylock was only used by members of the Gulen movement. This was especially because it was an important part of his case (§337).
At the time the case was considered, the ECtHR had two pending cases concerning EncroChat data. Therefore, while it was hoped that the ECtHR would lay down broad guidance about decrypted digital evidence and the right to fair trial, it instead took a more cautious approach.[3] These cases are discussed below.
Staatsanwaltschaft Berlin v. M.N. (EncroChat) (Case C-670/22) – 30 April 2024
The CJEU was similarly tasked with determining whether German courts had legally gathered and used EncroChat evidence. The CJEU avoided dealing directly with the admissibility of EncroChat evidence and fair trial. Instead, it decided the case based on unlawful use of a European Investigation Order (“EIO”) during the proceedings. An EIO is a judicial order for another EU state to share evidence.
However, the CJEU did give general guidance about whether using EncroChat evidence would violate fair trial rights under EU law (Article 47 EU Charter of Fundamental Rights, “the Charter”). Similarly to the ECtHR, the CJEU reiterated that a fair trial requires a defendant be able to “comment effectively” on evidence against them, especially where this evidence is determinative. There is a breach of a fair trial right where the defendant cannot comment effectively. The evidence should be excluded to prevent such a breach.
A.L. and E.J. v. France (App Nos. 44715/20 and 47930/21) – 17 October 2024
The issue decrypted digital evidence returned to the ECtHR through the cases that had been pending during Yalçinkaya. The applicants were prosecuted in the UK on the basis of EncroChat data transferred by the French authorities following the 2020 investigation.
Ultimately, their fair trial challenge was deemed inadmissible. The ECtHR held the applicants failed to pursue other avenues available to them. This included challenging the transfer of EncroChat data from the French to the UK authorities by applying for exclusion of the evidence before the French courts. The latter decision serves as a cautionary tale for practitioners to ensure all possible domestic remedies are exhausted in these cases.
Conclusion
Overall, the ECtHR and CJEU have been reluctant to comment directly on whether admitting decrypted messaging data is itself a violation of fair trial rights. The CJEU avoided comment by focusing on the transfer of data from French authorities. This is a common issue with the use of EncroChat data. While French and Dutch authorities collected the evidence, the same data has led to the arrest of 6,558 suspects worldwide.
However, looking beyond the issue of transfer, the decisions show that certain procedural safeguards must be in place to protect the right to fair trial. While these safeguards do not necessarily involve full access either to the data itself or to information about how it was collected, they should represent a real attempt to balance out the consequent shortcomings.
BSQ has extensive experience in handling serious and organized crime cases, with a proven track record of successful outcomes for our clients. Please call our London offices on 0203 858 0851 if you require further support and would like advice from leading criminal defence solicitors.
Our specialist Encrochat lawyers would be happy to discuss your case.
[1] https://www.europarl.europa.eu/RegData/etudes/ATAG/2022/739268/EPRS_ATA(2022)739268_EN.pdf
[2] https://www.nationalcrimeagency.gov.uk/news/operation-venetic?highlight=WyJiIl0=
[3] https://strasbourgobservers.com/2023/10/13/article-7-shockwaves-bylock-and-beyond-unpacking-the-grand-chambers-yalcinkaya-judgment/