EncroChat hack: Fair Trials denounces lack of transparency and oversight

Article by Fair Trials

Fair Trials has joined lawyers from seven European countries to denounce the use of evidence obtained from the infiltration of the secure communications network ‘EncroChat’. In an open letter to the European Commission and the European Parliament, we call out the lack of oversight and transparency surrounding the investigation, which poses serious risks for fundamental rights and the rule of law.

Thousands of people across Europe have been arrested, detained and prosecuted based on evidence obtained during the hack of EncroChat. The data obtained by the French police authorities was sent to Europol, which transferred the data to law enforcement agencies in other EU countries. 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’.

“This has made it impossible for those accused of crimes to check the accuracy, authenticity, reliability and even the legality of the evidence used against them. (…) More troublingly, judges are forced to make decisions about complex technical matters based on inference (…),” states the letter.

Laure Baudrihaye-Gérard, Legal Director (Europe) of Fair Trials commented: 
“Fundamental rights must be upheld for all people, but the secrecy surrounding the EncroChat hack seriously undermines these rights. How can you prepare a defence if you cannot access the evidence against you? How can you challenge evidence that is inaccurate or illegal if you do not know how it was obtained? It is not possible.

“The EU must take responsibility for these violations, particularly as Europol played such a fundamental role in facilitating the police action following the hack. It must take urgent action to improve oversight, ensure transparency, and instil a sense of accountability in EU policing.” 

The hack demonstrates a worrying lack of oversight of police activity in the EU. National and international police agencies – including Europol – are operating without accountability, raising serious privacy concerns. “The likelihood is that the hack involved the fundamental rights of thousands of individual citizens of Member States (…), while an adequate review by an independent judicial authority is completely absent in this regard,” states the letter.

Fair Trials is calling on the European Commission and the European Parliament to:

  1. Ask all concerned Member States to impose a moratorium on (new) prosecutions based on information derived from the EncroChat hack until the evidence is duly and fully disclosed;
  2. Require Europol to provide explanations on its role in processing, analysing, and sharing the data;
  3. Set up an inquiry committee to look into breaches of EU law in the context of the EncroChat investigation;
  4. Adopt appropriate safeguards to ensure that data processed and shared via EU police and judicial cooperation mechanisms cannot be subject to a blanket assertion of national defence secrecy as done by the French authorities.

Read the full letter here.