The appeals in cassation are directed against a judgment of the Antwerp Court of Appeal (criminal division) of 14 June 2023. Two defendants (G.K.B.F. and G.C.G.F.) were prosecuted in the context of a criminal case split off from a so-called "mother case". The case centres on communication intercepted via SKY ECC, whereby in the mother case the French authorities transmitted PCAP files (intercepted network traffic) to the Belgian investigating judge. These were subsequently decrypted and used as evidence in the split-off criminal case.
Grounds of Appeal, Alleged Violations and the Court's Response
First ground of appeal (petitioner II):
Alleged violation: Article 6 ECHR and Article 55 of the Code of Criminal Procedure, as well as disregard of the general legal principle of the right to a fair trial and the right to adversarial proceedings.
Reasoning: The petitioner argued that the referral (saisine) of the investigating judge in the mother case was not regular and that he was unable to verify this because the underlying documents (such as the initial report) had not been added to the present criminal file. The judgment based its finding on the regularity of the referral on documents drawn up after the orders for judicial investigation, which would be unlawful because the scope of the referral is determined by the original orders and the underlying documents.
⚠️ [TRANSLATOR'S NOTE] "Saisine" is retained in Belgian legal usage; it refers to the formal act by which an investigating judge is seized of a case. Alternative translations: "referral", "seizure of jurisdiction".
Court's response:
The Court finds that the ground rests on an incomplete reading of the impugned judgment. The Court of Appeal's judgment did not rule exclusively as the ground suggests: it provided, among other things, an extensive overview of the procedural and factual information already included in the criminal file and rejected the request to add further documents on multiple independent grounds (privacy, loyalty of the public prosecutor's office, absence of any plausible irregularity). In doing so, the Court clarified the applicable legal standard:
Where data from another criminal file have been added, the right of defence admittedly requires access to all relevant elements both inculpatory and exculpatory, but this does not imply that the defence is entitled as of right to the addition of all documents it wishes to consult in order to satisfy itself as to the absence of irregularities. It is required that the defence renders the alleged irregularity and its relevance to the case somewhat plausible; mere speculation does not suffice.
If the irregularity and its relevance are rendered plausible, the court will as a rule order the addition, unless it finds in a manner not open to review that addition is not required, having regard to interests such as privacy, the secrecy of ongoing investigations and the protection of investigative techniques.
Since the petitioner had not rendered the alleged irregularity somewhat plausible, the judgment could lawfully hold that addition was not required. The ground fails in law and cannot be upheld.
Second ground of appeal (petitioner II):
Alleged violation: Article 90ter of the Code of Criminal Procedure.
Reasoning: The petitioner argued that a separate order pursuant to Article 90ter CCP was required to proceed with the decryption of already intercepted and seized communications. Both the acquisition of non-public communications and their decryption would be objectives of Article 90ter, so that a separate order would be required for decryption.
Court's response:
The Court rejects this ground. Article 90ter CCP concerns the covert interception of communications not accessible to the public from a computer system. However, the provision does not apply when communication data have already been lawfully intercepted and seized abroad and subsequently transmitted to a Belgian investigating judge through international mutual legal assistance. After transmission, these data no longer form part of a computer system within the meaning of Article 90ter, paragraph 3. Decryption is then merely a further step in the investigation, separate from the interception itself. A separate order was therefore not required. The ground fails in law and cannot be upheld.
Third ground of appeal (petitioner II):
Alleged violation: Article 6 ECHR and Article 149 of the Constitution, as well as disregard of the duty to state reasons.
Reasoning: The judgment established that no results were used from a wiretap measure on a server other than the physical servers of SKY ECC at OVH in Roubaix. The petitioner argued that the judgment thereby failed to respond to his defence that no wiretap orders had been produced for the virtual servers, each of which has a separate IP address. The mere finding that only the results of the wiretap measure on the physical OVH servers were shared with Belgium did not suffice as a response, since the virtual servers were likewise located at OVH in France.
⚠️ [TRANSLATOR'S NOTE] "Tapmaatregel" is translated as "wiretap measure" or "interception measure". Belgian law uses "tapping order" (tapbeschikking) as the formal judicial authorisation.
Court's response:
The Court finds that Article 6 ECHR is irrelevant to a grievance that concerns exclusively a failure to respond to a defence argument, so the ground fails in law to that extent. For the remainder, the Court holds that the impugned judgment, by expressly establishing that interceptions were carried out only on the external IP addresses of the physical servers at OVH and that only the results thereof were shared with Belgium, thereby excludes interception on the separate IP addresses of virtual servers and thus responds to the petitioner's defence. The judgment was not required to address each argument separately. The ground cannot be upheld.