Court of Justice
In addition to the European Court of Human Rights (ECtHR) based in Strasbourg, France, which mainly handles complaints about human rights violations, the European Union has an equally important body and that is the Court of Justice (ECJ), based in Luxembourg. The ECJ was created to ensure respect for the law and unity of interpretation in the application of the European treaties. The Court's task is to prevent differences between Member States in the interpretation and application of Community law.
Prejudicial reference
In the interests of effective and coherent application of Community law, national courts must ask the Court of Justice for clarification of, for example, an EU directive, if doubts about its correct application arise during the proceedings. Such a question is referred to the Court in a preliminary reference procedure. The Court answers in a decision after which it is up to the court to decide the case in accordance with this decision. This decision is also binding on other national courts where a similar issue arises.
Prejudicial question in Encro chat case
On 30 April, the Court issued a decision following a preliminary reference from the Landgericht Berlin. What was the case: the German prosecutor wanted to use data that the French police, in cooperation with Dutch experts, had extracted after infiltration in the EncroChat case. To this end, it issued a European Investigation Order (EIO) which led to France transferring the EncroChat data.
The Berlin regional court questioned the usefulness of the evidence. Partly because the EPOs had not been tested by a German court. It therefore put a number of preliminary questions to the ECJ.
According to the court, it was permissible that the EPOs had not been subject to prior judicial review. The fact that the evidence had been gathered by the French from persons on German soil did not alter this. The Court did rule that if terminal equipment is infiltrated in order to obtain traffic and communication data of individuals, while that terminal equipment is located in another Member State, the relevant Member State must be notified of the hack. The competent authority of that Member State is then entitled to indicate that the interception of telecommunications should not take place or should be terminated, if it would not have been allowed in a similar domestic case.
The court also stressed that a court that has to assess an objection to the EPO should be allowed to examine whether the fundamental rights of the person concerned have been safeguarded.
Furthermore, the Court makes it clear that national criminal courts are obliged to disregard evidence where the person is not in a position to comment on that evidence and the said evidence is likely to have a predominant influence on the factual findings What does the ruling mean for proceedings in the Netherlands? The above shows that the Court of Justice attaches great importance to respect for the sovereignty of the Member States, but also to the protection of the fundamental rights of the persons concerned. Investigative authorities should therefore not infiltrate indiscriminately across borders into computerised works containing information about data subjects. Importantly, the Court also stressed that a data subject should have the opportunity to effectively test or challenge the lawfulness of an EPO. Evidence should also be excluded if the data subject cannot adequately respond to the (decisive) evidence. Now it is the Landgericht Berlin's turn again to determine whether the EncroChat evidence may be used in that case. This court ruling will certainly be cited in pending PGP cases in the Netherlands. Although there was no EPO in the Dutch EncroChat cases, this ruling may nevertheless make it clear that it is not a foregone conclusion that evidence gathered abroad, will be used in a Dutch criminal case against a person involved. Indeed, this may therefore lead to exclusion of evidence in certain cases. D.M. Penn