EncroChat and SkyECC hacks: Germany latest EU country to question legality of evidence

Article by Fair Trials

Germany has become the latest country to question the legality of evidence obtained from the EncroChat hack. A judge at the Berlin Regional Court has lodged a preliminary reference request with the Court of Justice of the European Union (CJEU) to verify whether the sharing and use of the evidence complies with EU law. Courts in a number of other countries have recently raised similar questions about the admissibility of evidence from the EncroChat and SkyECC hacks. Fair Trials welcomes this scrutiny and urges countries to ensure that all evidence can be effectively examined and challenged.

Fair Trials has previously denounced the lack of transparency and oversight surrounding the EncroChat hack. Data was obtained by French authorities and transferred to other European countries via Europol, resulting in thousands of people being arrested, detained and prosecuted across Europe. However, details about how the network was infiltrated and what underlying data was retrieved have been suppressed by the French authorities on the grounds of ‘defence secrecy’. In February 2022, Fair Trials and lawyers from seven European countries called for a moratorium on prosecutions based on data from the hack until the evidence is duly and fully disclosed.

Laure Baudrihaye-Gérard, Legal Director (Europe) of Fair Trials said:

“It is impossible to have a fair trial if you cannot access or challenge the evidence against you. The right to a fair trial is a fundamental right that must be upheld for all people.

“Data was passed between countries through Europol with no scrutiny of its reliability or legality. Data that would then be used to deprive thousands of people of liberty: the harshest measure a state can take against a person. In a system based on the rule of law, law enforcement authorities do not have free rein to do whatever they like. They are rightly required to operate within the law. Exposing whether authorities have exceeded their legal powers is a fundamental function of a fair and open criminal justice system. This is essential to uphold the rule of law and ensure the right to a fair trial.

“We ask all States using evidence from the EncroChat hack: will you continue turning a blind eye to the erosion of the rule of law, or will you commit to fair and transparent criminal justice systems?”

The Berlin Court’s request to the CJEU comes after courts in other countries have demonstrated increased demands for more information from law enforcement authorities to enable them to duly scrutinise the evidence obtained from the EncroChat hack. In October, questions regarding the admissibility of EncroChat evidence were heard by the French Supreme Court (Cour de cassation). A few weeks earlier, the UK’s Investigatory Powers Tribunal (IPT) heard that the National Crime Agency (NCA) “deliberately concealed” information when obtaining a warrant to access data from the EncroChat hack. The IPT heard that the NCA had failed to give a full explanation of its understanding of how the French authorities hacked the network, reports Computer Weekly.

The Italian Supreme Court also ruled earlier this year that prosecutors must disclose how messages were obtained from the Sky ECC infiltration. Like the EncroChat hack, it has not been disclosed how police in Belgium, France and the Netherlands infiltrated the Sky ECC network, despite the evidence being used for hundreds of arrests and prosecutions across Europe. A court in the Netherlands also recently ruled that the evidence against an individual – messages from the Sky ECC network – was not fully disclosed and therefore could not be effectively tested.

Read our legal analysis of the German request to the CJEU here.