SkyECC: European Investigation Order and regularity of foreign evidence assessed under foreign law
On 11 September 2024 the Belgian Court of Cassation largely upheld convictions by the Liège Court of Appeal in a large cocaine case based on SkyECC data obtained through the Belgian-Dutch-French joint investigation team. Directive 2014/41/EU does not prevent authorities from opening an investigation when a group of persons uses encrypted communications without apparent legitimate reason. The regularity of evidence gathered abroad is assessed under the foreign law, and a party criticising it must make an irregularity plausible. The appeal court had excluded SkyECC data that lacked an exploitation report and a translation in order to protect the fairness of the trial. The Court declined to refer four proposed questions to the CJEU and quashed the judgment only on confiscation, part of the civil claims and one sentence.
Detailed analysis
Six defendants were convicted by the Liège Court of Appeal for acts in the context of a large-scale criminal organisation involved in the importation, transport and processing of cocaine. The evidence rested largely on data obtained through a Joint Investigation Team (JIT) Belgium-Netherlands-France and on intercepted SkyECC communications. Various defendants challenged the conviction, the sentence and the confiscation.
Grounds of Appeal, Alleged Violations and the Court's Response
Fifth ground of appeal:
Alleged violation: Directive 2014/41/EU (European Investigation Order, EIO) and disregard of the right of defence.
Reasoning: The collection and processing of evidence within the JIT framework would not have been regular (fishing expedition, impossibility of counter-expertise, violation of data retention rules, fewer rights than in a domestic procedure).
Court's response:
Partly inadmissible (criticism of the investigation rather than of the judgment), partly fails in law, partly inadmissible for lack of precision. The Court confirms that no provision of Directive 2014/41/EU prohibits the authorities, when they establish that a group of persons is using encrypted communications without any clear legitimate motive, from opening an investigation. The regularity of evidence obtained abroad is assessed according to foreign law, not Belgian law. The judgment had adequately established that the interceptions were regular under French law, that the conditions of Article 8 ECHR were met and that there was no hacking. Four proposed preliminary reference questions are not referred: the first two do not concern questions of interpretation, and the third and fourth concern JIT matters falling outside the scope of the Directive.