''Dutch police have done it again'', stated the police chief of the National Police Unit. The collection of chat messages via the Anom communication app fits into the series of previous actions around cryptocommunication. For example, Encrochat and Sky were previously hacked, allowing investigative agencies to 'live' read along with users' conversations, among other things. A different modus operandi was used with Anom than in the hacking of Encrochat and Sky. Crypto phones with the app Anom were offered by a civilian infiltrator. However, the app was managed by government agencies. This allowed the police to read and eavesdrop on all communications via the app from the outset. 

Key role for the Netherlands 

According to the police chief of the National Police Unit, the Netherlands played a major role in the international operation. A software was developed by the Dutch police, through which messages were automatically analysed and users identified. That software was made available to Europol by the Netherlands. Europol eventually shared the data again with other countries.

Conditions civilian infiltrator 

Under Section 126v of the Code of Criminal Procedure, the police can use a citizen infiltrator. The police speak to a person - who is not an investigating officer -

agree that this person will assist in the systematic collection of information about that suspect. Use of this power requires:

•  a suspicion of a criminal offence
• or that there is reasonable suspicion that that person is involved in the organised planning or commission of crimes
•  the infiltration is in the interest of the investigation

The moment a civilian infiltrator sells crypto phones with the Anom app, the question is whether the conditions of art. 126v Sv are met. What matters is whether a suspect - arrested as a result of Anom - was already suspected of a criminal offence. If this is not the case, it should be considered whether a reasonable suspicion already existed that the suspect would commit crimes in an organised context. 

This then raises the question of whether the infiltration was in the interest of the investigation and whether lighter means of investigation would not have sufficed. 

Terms and conditions of wiretap

The same questions also arise when tapping through the Anom app. Indeed, under Section 126m of the Code of Criminal Procedure, tapping is only allowed if there is:

• A suspicion of a criminal offence
• Which, given its nature or connection with other crimes committed by the accused, constitutes a serious breach of the rule of law
• Where the investigation urgently demands the use of the interception power

Unlawfully obtained evidence

If it turns out that the use of the citizen infiltrator and/or the wiretap was unlawful, the defence will argue that a consequence should be attached to the procedural violation. This could include inadmissibility of the prosecution, exclusion of evidence or reduction of sentence.

In Encrochat cases, lawyers frequently argue that the prosecution should be declared inadmissible or that the instant messages should be excluded from evidence. This is because the chat messages may have been obtained unlawfully. The prosecution is hiding behind international cooperation in this - and other cases, such as the hack at Sky, for example. Initially, the prosecution proudly declared the key role of the Netherlands in international investigations. Now that the legality of the hack is increasingly being questioned, the Public Prosecution is backtracking. 

It cannot be ruled out that in the Anom cases, too, the public prosecutor's office will start trying to put the responsibility of the action outside itself. After all, this would avoid the need for openness and uncovering any illegalities. But given the current statements about the Netherlands' role in the Anom action, it will be difficult to argue that the public prosecutor cannot be held accountable for any illegalities. After all, the software was developed by the Netherlands.

It is also significant here that the Supreme Court and the legislature also recognise that countries will increasingly cooperate. In a recent Supreme Court ruling, it was considered that if an established procedural error outside the preliminary investigation had a decisive influence on the course of the investigation into and/or prosecution of the suspect, legal consequences should be attached to it. This also applies to cases in which investigation results, which may have a determining influence, were collected abroad.

On 17 June, in a case also handled by our firm, the Utrecht District Court, particular that permissions issued in another investigation should be added to the file. In doing so, the court recognises that formal omissions in one investigation, may carry over into another investigation. 

If it turns out that the evidence in the Anom cases was illegally obtained, the courts may start drawing far-reaching consequences. In any case, the last word has not yet been said on this.