ECtHR begins considering cryptophone evidence cases: EncroChat & ANOM
The European Court of Human Rights (ECtHR) has recently heard arguments in the first cases concerning European states’ prosecutions based on communications extracted from encrypted communications systems, including the EncroChat, Sky ECC and the ANOM system involved in the FBI’s Operation Trojan Shield. In each of these scenarios, encrypted communications of the whole user base were decrypted and collected by one state and parts of that shared with other states (where the user had been) to found criminal prosecutions.
These operations have produced many convictions worldwide for serious criminality, but there have been concerns in the European legal community as to compliance with rule of law and fair trial standards, due to the opacity around how the data capture was authorised and carried out (especially for ANOM) and the use at trial of curated evidential products received via mutual legal assistance without the raw data being available.
These cases have given rise to many cases before higher national courts, notably the German Federal Constitutional Court and Italian Court of Cassation, and the Court of Justice of the EU. The ECtHR has now recently communicated the cases of Silgir (No 2) v Germany (concerning EncroChat) and Raal & Reudolph v Estonia (concerning ANOM).
Alex Tinsley was instructed, in cooperation with several European colleagues, on behalf of the third parties Fair Trials (in both cases) and the European Criminal Bar Association (ECBA) (in Raal & Reudolph) to advance observations in the public interest.
Overarching themes of these interventions include: (1) common issues faced by practitioners in European jurisdictions; (2) European judicial trends, including recent national court decisions noted for their balanced approach; (3) the application of Article 8 legality principles to a state importing the fruits of a data capture carried out by another state; (4) the application of Article 6 fair trial principles in the Grand Chamber’s Article ruling in Yüksel Yalçinkaya v Türkiye in relation to undisclosed data; (5) the dangers of excessive reliance ‘mutual trust’ in foreign authorities in European criminal courts.
