According to lawyers of people accused on the base of Encrochat information, it is impossible to verify the evidence.
Fair Trials, a global criminal justice watchdog, is worried about the lack of transparency and oversight and 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.
Lawyers of the accused have sent an open letter to the European Commission and the European Parliament, including the Dutch lawyers J.C. Reisinger, R.D.A. van Boom, Y. Quint, R. Poppelaars & B. Janssen. They write that the right to a fair trial is endangered (highlighting by me):
The manner of the infiltration has been suppressed under the shroud of a claim of national defence secrecy by the French authorities. 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. Each of our countries’ legal systems has specific, robust and world-leading procedures for dealing with sensitive information, and yet there has been a refusal by the French authorities to reveal its technique. This is unprecedented in our collective experience; it breaches EU standards on procedural safeguards; European Court of Human Rights caselaw; and international best practice guidance. It has generated a huge amount of otherwise avoidable litigation and driven a surge in prison populations through recourse to pre-trial detention. More troublingly, judges are forced to make decisions about complex technical matters based on inference as opposed to being provided with the complete, unadulterated evidence, to which they are entitled.
Further they point out there is lack of transparency, that there are extraterritorial effects and that data protection rights of decent citizens are violated.
It shows that with digital discovery there should also be mature digital legal protection.
- Fair Trials, article: EncroChat hack: Fair Trials denounces lack of transparency and oversight, 18 February 2022.
- Letter of concern regarding evidence obtained from EncroChat hack (pdf).
- Information on Fair Trials.