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  • Writer's pictureThe DigitalBank Vault

The #Encrochat Right to Fair Trial is absent : the court interferes with the right to privacy, data protection, and telecommunication secrecy


Computer surveillance is a very intrusive investigation measure because it interferes with the right to privacy, data protection, and telecommunication secrecy and in addition may interrupt the security of the computer systems. While the first two interferences are well documented in ECtHR case law, the impact of law enforcement actions on the security of computer systems is rarely discussed.


Given the secrecy of surveillance operations, the ECtHR held that applicants have a claim, even without factual proof, as long as the Court is satisfied that “there is a reasonable likelihood that some such measures have been applied”.


Arguably, computer surveillance encompasses very specific and intrusive investigative methods which require specific regulation with scope and safeguards distinct from interception given the reasons stated above. However, legislation is still underdeveloped or non-specific, which results in discrepancies between the legal categorization of the act and its technical features.


This analysis advances the argument that the operation was in fact computer surveillance, but for the sake of aligning it with its official legal categorization as computer (phone) interception, those terms are used interchangeably.


The lawfulness and fair use of the Encro-phone evidence is evaluated first with respect to the requirements for quality of law and procedure in Art. 6 ECHR in conjunction with Art. 8 (2) ECHR and the procedural safeguards in Art. 6 ECHR for intrusive investigative measures. Further, the fair trial requirements are examined in the context of cross-border cooperation and in respect to the European mutual-trust-based investigative instruments.


The analysis takes into consideration legislative evaluation and ECtHR case law in regard to both computer surveillance and interception.


 

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