EncroChat hack: Fair Trials denounces decision of French Court

Article by Fair Trials

Fair Trials has denounced today’s decision by the French Constitutional Court. The decision stated that the defence secrecy surrounding the EncroChat hack is constitutional, despite clear violations of fair trial rights.

Fair Trials has previously raised serious concerns about the use of evidence obtained from the EncroChat hack. After the secure communications network was infiltrated by French police authorities, data was transferred to law enforcement agencies in other EU countries via Europol. However, the French authorities used the grounds of ‘defence secrecy’ to suppress information about how the network was infiltrated and what data was retrieved.

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

“Today’s decision weakens fair trial rights not just in France but across Europe. Thousands of people in Europe have been detained and prosecuted based on evidence from the EncroChat infiltration, but it is impossible to have a fair trial if you cannot access or challenge the evidence against you. We send a strong reminder to all EU Member States that human rights must be upheld for all people, and we continue to denounce the secrecy surrounding the evidence obtained from the hack.”

In an open letter published in February 2022, Fair Trials and lawyers from seven European countries called for a moratorium on prosecutions based on information from the hack in all concerned EU Member States. The letter also urged the EU to investigate Europol’s role in facilitating the exchange of information between police authorities across Europe following the hack.

Baudrihaye-Gérard added:

“Europol – the EU’s own law enforcement agency – is being used as a smokescreen to bring in data as evidence without oversight or judicial processes that would apply in national proceedings. The agency’s data processing powers are continually increasing, but there is no effective independent oversight or accountability for rights infringements.

This is exactly what we saw in the EncroChat case: data was passed between Member States and no-one stopped to ask how the data had been obtained or how reliable it is. The EU must instil a sense of accountability in EU policing.”