Fair Trials and ECBA Intervention in the First ECtHR Case on ANOM Evidence: Upholding Core Principles when States Work across Borders

The European Court of Human Rights (ECtHR) should uphold core privacy and fair trial principles when considering prosecutions based on hacked communications that have been exchanged across borders. This is the core message of Fair Trials and the European Criminal Bar Association (ECBA) in their joint intervention in Raal & Reudolph v Estonia. 

The case relates to the use in a criminal trial of evidence derived from ‘ANOM’ cryptophone devices. ANOM was a communications system developed and promoted within criminal networks by the Federal Bureau of Investigation (FBI) – which held the keys necessary for decryption and would be able to access communications through it. The FBI enlisted Lithuanian authorities to gather the data of the entire user base of the system (27 million messages, from 11,800 devices) on their territory and send it to the US on a regular basis under mutual legal assistance (MLA). The US then shared the evidence with other states via MLA while withholding important information, e.g. the identify of the server state (Lithuania) and the judicial authorisations there. Some 800 arrests followed around the world, followed by numerous prosecutions for serious offences.

There has been significant concern within the European legal community that these operations, though undoubtedly valuable in tackling serious criminality, have come at the expense of core rule of law standards. In their intervention, noting that international law developments indicate much more of these operations to come, Fair Trials and the ECBA have advocated for two core principles to be upheld in this context.

The privacy dimension

Fair Trials and the ECBA have argued that when a trial state imports the fruit of an overseas surveillance operation to its criminal process via MLA, it must be able to verify at a high level whether the originating operation abroad was done compatibly with core Article 8 norms – i.e. if it complied with the rule of law and honoured the core distinction between ‘reasonable suspicion’ and an impermissible generalised exploratory search.

In this context, Fair Trials and the ECBA noted revelations in the recent article of Mr Christian Lödden, suggesting that material information as to the states’ active roles was withheld from the Lithuanian courts which authorised the interception in Lithuania. The interveners also emphasised that encryption is widely used for legitimate purposes (including expression and association) and called for caution where reliance is placed on the fact of advanced encryption to place suspicion upon an entire user base of a system.

The fair trial dimension

Fair Trials and the ECBA also defended the principle that where such data is imported to a criminal process, in order to ensure quality of arms, defence and court must have access to sufficient information as to the origin story of the data and access to the underlying data to enable effective scrutiny. ‘Mutual trust’ applicable in mutual legal assistance relations should not come to act as a trump card justifying the use of a finished evidential product in court with minimal information as to how it was produced and none of the underlying data. The brief draws attention to significant decisions of national courts in Europe which have bucked the general trend on admissibility of ANOM and similar data and point toward a more balanced approach.

Broader context

This intervention, and Fair Trials’ earlier intervention in Silgir (No 2) v Germany (concerning the related topic of EncroChat evidence) seek to assist the ECtHR in setting core standards in an emerging model of transnational law enforcement operations.

At UN level, through the UN Convention on Cybercrime, states have recently set up strong powers to access communications systems and share them under MLA arrangements, creating significant concern in civil society. At EU level, the European Commission has recently brought forward proposals to amend the European Investigation Order Directive, the basis by which EncroChat and Sky ECC evidence was shared between EU countries.

Principles established by the ECtHR in these and other cases will be significant in laying down fundamental rights guardrails as cooperation frameworks continue to develop for the cross-border exchange of electronic communications evidence.

Read our joint intervention with the European Criminal Bar Association (ECBA) here.