FACT : it cannot be assumed that the surveillance of such a large number of potential suspects was based on facts in each individual case. It is unclear if the French authorities complied with the ECtHR requirement of judicial oversight and notification throughout the entire surveillance operation – not only when it was first ordered, but also while it was being carried out or after it had been terminated.
There is no information as to whether the surveillance was carried out by competent experts as required by Article 706-102-1 CCP and if there was an authorization for exploitation of the dataset.
Allegedly, the French authorities refused to disclose information on the interception technology or to provide a prosecution witness to be questioned in regard to this matter (Gardiner and Sommer, 2021). It was reported that the information exchange of the JIT seized data sets was facilitated by Europol's system Siena. However, there is no information on how the integrity of the initially seized, raw data from the interception device was preserved. There is no audit trial of the procedure observed to further examine, use, and store the Encrochat-data. It was also unclear if the data set was modified or filtered before it was exchanged with Europol and other countries.
Considering, that some of the Encro-users were using the service for legitimate purposes and to protect their privacy, the JIT would be supposed to have employed a procedure for erasure and destruction of such data, as the ECtHR requires a data destruction procedure where an accused has been discharged by an investigating judge or acquitted by a court.
It becomes apparent that contemporary investigations like Encrochat have the methods and technology to identify suspects ab initio and collect digital evidence in real-time, which does not fit well with traditional lawfulness requirements for reasonable suspicion and identification of concrete crime.
Considering the lack of documentation of the procedure, it cannot, at least in theory, be excluded that the bulk computer surveillance of the Encrochat network could be in violation of Art. 8 (2) ECHR. However, even if the Encrochat evidence was potentially unlawfully obtained, this does not automatically yield a violation of Art. 6 ECHR. Therefore, further considerations must evaluate if the use of such evidence could affect the overall fairness of the criminal proceedings.
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