Supreme Court validates convictions based on Encrochat evidence for the first time
The Supreme Court has endorsed in plenary session of the Criminal Chamber the use of messages extracted from Encrochat as valid evidence in a drug trafficking case with eight convicted persons.
The Supreme Court backs Encrochat evidence in a drug trafficking case
The Supreme Court has approved for the first time a conviction sentence based on communications obtained from Encrochat, the encrypted messaging platform seized by France in 2020 and widely used by criminal organisations. According to El País, the decision was adopted in plenary session of the Criminal Chamber and represents the first definitive endorsement by Spanish justice of this type of evidence.
The case examined by the high court originated in a conviction imposed by the National Audience on eight persons for drug trafficking within a criminal organisation. Sentences range between five and fourteen years in prison, and a fine of 14 million euros is also imposed. The Encrochat communications were incorporated into the proceedings through a European investigation order (OEI) issued by the Spanish authorities.
Five of the convicted persons appealed the sentence arguing that the main evidence violated the right to confidentiality of communications, as it stemmed from an action they considered prospective and not authorised judicially in Spain. The Supreme Court rejects these appeals.
Interpretation of the European directive and the role of the CJEU
The judges recall that the Court of Justice of the European Union (CJEU) had already given the green light, in generic terms, to the evidentiary use of conversations extracted from Encrochat. The Supreme Court analyses specifically a sentence from the CJEU of April last year, relating to a 2014 European directive on the European investigation order, which establishes that the examination of the lawfulness of an OEI must focus on the specific measure which is the object of said order.
In this case, that measure consisted of incorporating into a Spanish judicial proceeding information obtained in the context of a foreign investigation, a possibility expressly set out in the Criminal Procedure Law. The purpose of the OEI issued by Spain, the sentence states, "was not seeking an interception, but rather acquiring the documented results of investigative activities that the foreign authority had already carried out, with full autonomy, in compliance with its legislation".
The rapporteur of the sentence is judge Ana Ferrer. The court concludes that the interception of the material and its incorporation into the judicial proceedings complied with "sufficient standards" to rule out that it was "a prospective measure and one that violated fundamental rights".
Massive interference, but not prospective
The Supreme Court acknowledges that the measure executed in France operated over a very broad scope. "So much so that we could speak of massive interference, which does not mean prospective", the sentence warns. The judges emphasise that the interception of communications was backed by prior evidence of serious crimes, gathered in earlier investigations, and was assessed as "necessary, to the exclusion of any other less serious measure".
The chamber also rules out that the OEI issued was an attempt to circumvent Spanish internal law, both in the collection and transmission of the data. The court furthermore highlights that the very issuance of a European investigation order constitutes an additional guarantee against other alternative mechanisms, such as the direct exchange of information between police services.
Evidentiary value will depend on each case
Despite the general approval, the Supreme Court warns that the evidentiary value of messages obtained from Encrochat "will depend on the specific case". "Generalised patterns cannot be established", the chamber states, which lists the different roles that this data can play: as an indication that justifies an investigative measure, as an element corroborating other evidence, as part of circumstantial evidence, or even, in the "most remote but not rejectable" scenarios, as evidence in itself.
With this ruling, the Supreme Court sets a reference criterion for Spanish courts on the admissibility of evidence from encrypted platforms seized abroad, although without closing the door to challenges in cases with different circumstances.
Source: El País