By Alexis Anagnostakis.
The French authorities, in collaboration with Dutch experts and under the authorization of a French court, successfully infiltrated the EncroChat service. This service, which was predominantly used on encrypted mobile devices, facilitated illegal drug trafficking on a global scale. Initially, the Bundeskriminalamt (Federal Criminal Police Office, Germany), utilizing a server of the European Union Agency for Law Enforcement Cooperation (Europol), retrieved intercepted data pertaining to EncroChat users located in Germany. Acting upon European Investigation Orders (EIOs) issued by the German prosecutor, the French court sanctioned the transmission and utilization of this data in criminal proceedings within Germany. Subsequently, several other countries sought access to data relevant to their citizens of interest.
The successful infiltration of the EncroChat network signifies a monumental achievement for law enforcement agencies in their relentless battle against organized crime. The apprehension of numerous criminals involved in large-scale cocaine trafficking and other illicit activities underscores its operational success. However, the potential repercussions for fundamental legal principles raise profound concerns, indicating that this victory could translate into a broader defeat for the rule of law.
The utilisation of data intercepted from servers of SkyECC and EncroChat will soon be at the forefront of legal and ethical debates in Greece. Over the past two years, Greek authorities have periodically obtained data from their counterparts in France, Belgium, and Europol to aid in investigating severe criminal cases.
A significant milestone was reached recently when the Greek Police secured comprehensive digital data related to Greece from these intercepts. This data, pivotal to understanding the criminal network’s machinations, was accessed via the European Investigation Order (EIO).
This trove includes 4,500 audio files, 28 million text messages, and 250,000 photos, forming an extensive digital repository under scrutiny. However, the path from raw data to actionable evidence in court remains fraught with legal challenges.
One pressing concern is the admissibility of such evidence within the stringent evidential framework of Greek law. Article 177 § 2 of the Greek Penal Procedure Code unequivocally states that evidence obtained through illegal acts is inadmissible in criminal proceedings. This is reinforced by Article 19 § 3 of the Greek Constitution, which prohibits the use of illegally obtained evidence. The legal doctrine is clear: evidence obtained by illegal means is absolutely barred from court proceedings. The only exception, allowing the use of such evidence, arises when the accused insists on its examination, particularly if it is the sole evidence that might exonerate them.
Another crucial aspect pertains to the authenticity of electronic evidence. The defense has the right to challenge the authenticity of such evidence, necessitating its validation through expert testimonies before it can be deemed admissible. EncroChat and SkyECC’s operations, enveloped in secrecy due to national security concerns, complicate this further. Despite the French Supreme Court’s ruling on the legality of the evidence collection from EncroChat, jurisdictions across Europe, including Greece, are likely to rigorously scrutinize both the methodology and the authenticity of this evidence.
The Greek courts face a formidable task in authenticating this evidence without transparency from the French authorities regarding their collection techniques. Should the defense question the legitimacy of the intercepted data, proving its authenticity might become an insurmountable hurdle unless corroborated by new, legally obtained evidence – a necessity that remains tenuous.
The Court of Justice of the European Union (CJEU), on April 30, 2024, delineated clear parameters for the transmission and utilization of evidence in cross-border criminal cases. Crucially, the court emphasized the necessity of safeguarding fundamental rights during such proceedings. Surveillance conducted by one Member State in another must involve timely notifications, empowering the latter to halt any interceptions deemed illegal under its laws.
Unlawfully obtained evidence is generally inadmissible unless the affected party is not granted an opportunity to present their observations, and the evidence is pivotal in ascertaining the factual matrix of the case. This directive underscores the necessity for Member States to ensure systematic compliance with fundamental rights, even when prosecuting grave offenses.
In summary, while the operational success of operations like EncroChat is undeniable, their long-term implications on the rule of law and fundamental rights remain convoluted. The legal systems must rigorously validate the legality and authenticity of such evidence to uphold defendants’ rights to fair trials and effective defense. The lack of timely notifications and legality checks potentially hampers justice, disproportionately impacting not just criminals but also innocent individuals caught in this broad dragnet.
This operational duality – victories in law enforcement versus potential erosions of legal principles – mandates a cautious examination before replication. The lessons learned from the EncroChat saga must be prudently assessed to ensure that future operations uphold the sanctity of fundamental rights, laying the groundwork for a just legal paradigm. Until then, such unprecedented interventions should serve as case studies, guiding future methodologies rather than epitomizing current best practices.
