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#Encrochat Legal Expert Advice : Lawfulness and fair use of the Encrochat evidence



The procedural and material scope of Art. 6 ECHR includes preliminary investigations6 and cross-border cooperation for evidence collection7 such as the Encrochat operation.


However, the nature of the Encrochat operation and its full scope are not entirely clear. At the EU level criminal investigation is defined as measures by a competent law enforcement authority for “establishing and identifying facts, suspects, and circumstances regarding one or several identified concrete criminal acts”.


It is unclear if the police had identified criminal acts before the Encrochat evidence gathering, but considering the large amount of suspects and data collection, it is more likely that the operation can be classified as a criminal intelligence operation “to collect, process and analyse information about crime or criminal activities with a view to establishing whether concrete criminal acts have been committed or may be committed in the future”.


The authorities in Encrochatacted at least with respect to some users proactively, they targeted the Encrochat organization, and prosecution cannot be the only objective of the operation since Europol commented that one of the objectives was to analyse the extent and operations of organized crime networks (Eurojust-Europol, 2020).


The operation, therefore, has an element of targeted intelligence surveillance and a coordinated cooperation for preliminary investigation and digital evidence collection, which requires an examination whether and to what extent such operations fall within the scope of Art. 6 ECHR and when fair trial safeguards are invoked.


 

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