Supreme Court issues preliminary ruling in EncroChat and SkyECC cases

13 juni 2023

First use of preliminary ruling procedure in criminal proceedings

Does the ‘principle of mutual trust between member states’ also apply where there has been close cooperation between the Netherlands and France on a cross-border digital investigation in a joint investigation team? Can the Dutch courts assume that an investigative method has been used abroad lawfully and that the results of the investigation can be relied on, as long as the courts of the other state concerned have not issued a final ruling to the contrary? Under which conditions can investigation results obtained from authorities abroad and arising from large intercepted data files be used in the Netherlands? Is an authorisation from the examining magistrate required? These are a few of the first ever questions referred to the Supreme Court for a preliminary ruling in criminal proceedings. The referral was made by two district courts (‘Overijssel’ and ‘Noord-Nederland’). A total of eight questions were submitted and the Supreme Court has answered them on 13 June 2023.

The cases

In the criminal cases concerned, the Public Prosecution Service presented evidence in the form of intercepted and encrypted communications. This evidence consisted of messages sent between specially configured, highly secure phones (‘encrypted phones’). The cases concerned phones made available by the service providers EncroChat and SkyECC, both of which used servers located in France. There were criminal investigations targeting these service providers and their users in France and in the Netherlands. At a certain point the two countries’ authorities decided to cooperate and establish joint investigation teams (‘JITs’). Consequently, the servers used by EncroChat and SkyECC were hacked, enabling the French authorities to read along with communication between users of EncroChat and SkyECC phones in real time. France then shared the intercepted communications with the Netherlands.

Lawyers for the defendants in the Dutch criminal proceedings raised a number of questions, including whether the data intercepted in France had been obtained lawfully and had been presented in a reliable manner. The lawyers argued that the defence had not been given any insight into how the data was obtained, partly because the means of interception used in France were deemed to be a state secret. The Public Prosecution Service consistently argued that the ‘principle of mutual trust between states’, which is rooted in the general assumption of trust in the legal systems of other states, rendered further investigation unnecessary.

The two district courts then submitted questions for a preliminary ruling to the Supreme Court, asking whether the principle of mutual trust between states also applies in the cases being heard by them. In addition, one of the district courts posed questions concerning how the large data files sent by the French authorities should be handled in the Netherlands.

The preliminary ruling procedure

Since 1 October 2022, it has been possible for judges at the district courts and courts of appeal to refer questions to the Criminal Division of the Supreme Court for a preliminary ruling. In this first judgment in which it has made use of its power to issue a preliminary ruling in criminal proceedings, the Supreme Court makes a number of general comments regarding the requirements that apply to questions referred for a preliminary ruling. In essence these requirements entail that a ruling by the Supreme Court must be necessary in order to hand down a judgment on the case. Any question referred must also have implications that go beyond the case at hand, for instance because the answer will be of relevance to other legal proceedings.

The Supreme Court’s answers to the questions

The Supreme Court answered that the principle of mutual trust between states does apply in this context. First, this means that decisions by authorities abroad that form the basis for investigations conducted abroad must be respected by the Dutch courts in Dutch criminal proceedings. It should therefore be assumed that the relevant investigations by the authorities abroad have been conducted lawfully, in other words, in accordance with the laws of the foreign state concerned. A different conclusion can be drawn only if it has been definitively established abroad that the investigation conducted there did not comply with the applicable rules in that foreign state. The Dutch criminal courts only have to consider the manner in which the results of the investigation abroad were obtained if the manner of obtaining them is relevant in assessing whether the use of those results as evidence is compatible with the principle of a fair trial. Finally, the Dutch criminal courts must assume that the investigation abroad was conducted in such a way that its results can be relied on. The Dutch courts are obliged to give further consideration to the reliability of the results only if – whether as a consequence of the submissions of the defence or otherwise – there are specific indications to the contrary. The same applies if the investigation was conducted by a JIT.

In its answers to the questions, the Supreme Court also gave further consideration to the authorisations that the Public Prosecution Service sought from the examining magistrate in the cases at hand. The Supreme Court points out that applying for authorisations, even in cases where the law (the Code of Criminal Procedure) does not require it, establishes safeguards that are important to the manner in which data is selected from large data files, the scope for reviewing that selection process and the protection of the privacy of the persons concerned.

Finally, the Supreme Court articulated a number of principles that are relevant when compiling a criminal case file in cases involving large data files.

Next steps

Both district courts will now continue hearing the cases with due regard to the Supreme Court’s answers. These answers will also be relevant to other courts deciding on similar cases.

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