The appeals in cassation are directed against a judgment of the Antwerp Court of Appeal (criminal division) of 13 October 2023. Two defendants (E. and T.) are prosecuted in the context of the SKY ECC investigation.
Grounds of Appeal, Alleged Violations and the Court's Response
Fourth ground of appeal of petitioner I:
Alleged violation: Articles 6(1) and 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, as well as disregard of the right of defence.
Reasoning: The petitioner argued that the intercepted SKY ECC communications were not subject to data retention legislation because SKY ECC is not a public provider or public communications network within the meaning of the e-Privacy Directive (2002/58/EC). The Court of Appeal wrongly held that these data did not constitute unlawfully obtained evidence. The CJEU case-law would, however, indicate that data retention legislation also applies to SKY ECC communications.
Court's response:
The Court holds that the e-Privacy Directive applies only to the processing of personal data in connection with the provision of publicly available electronic communications services over public networks. SKY ECC is not a public provider and the data were not obtained via a public provider but through a direct interception measure on a private communications network, ordered by an investigating judge. There is therefore no processing of personal data by a publicly available electronic communications service, so the e-Privacy Directive and the CJEU case-law based thereon are not applicable. The Court of Appeal also ruled on that basis. The ground fails in law and cannot be upheld.
Fifth ground of appeal of petitioner I:
Alleged violation: Articles 6(1) and 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, as well as disregard of the right of defence.
Reasoning: The judgment wrongly held that irregularly obtained telecommunications data (traffic and cell-site data requested from telecom operators) did not have to be excluded from the proceedings pursuant to Article 32 of the Preliminary Title of the Code of Criminal Procedure. The petitioner argued that the effectiveness criterion of the CJEU (judgment in La Quadrature du Net and Others) was met because these telecommunications data were decisive for his conviction. The judgment furthermore disregarded the complexity and technical nature of these data.
⚠️ [TRANSLATOR'S NOTE] "Doeltreffendheidcriterium" is translated as "effectiveness criterion". This refers to the CJEU principle that national courts must disregard evidence where the accused cannot effectively comment on it and the data could have a decisive influence on the assessment of the facts.
Court's response:
The Court clarifies the effectiveness criterion: it obliges the national criminal court to disregard information and evidence obtained through general and indiscriminate retention of traffic and location data incompatible with EU law, where the person concerned was unable to comment effectively on that information and those data could have a decisive influence on the assessment of the facts. However, this criterion does not require exclusion of data that merely set investigators on the trail but are otherwise not decisive for the conviction, provided the person was not hindered in his ability to challenge them by adversarial proceedings. Retrospective traffic and location data are, moreover, not so technical as to be beyond the court's knowledge or to prevent a defendant from conducting a meaningful defence. The Court of Appeal found that the telecommunications data were not in the present case decisive for the conviction and that the defendant was able freely to contest them. The ground fails in law and cannot be upheld.
Sixth ground of appeal of petitioner I:
Alleged violation: Article 6(1) ECHR and Article 13 of the International Mutual Legal Assistance Act, as well as disregard of the right of defence.
Reasoning: The judgment wrongly held that the evidence obtained from the French mother case did not have to be excluded from the proceedings. The documents from the mother case added to the criminal file did not make it possible to verify the lawfulness of the investigative acts performed in France, nor that the foreign evidence satisfied the conditions for lawfulness applicable abroad.
Court's response:
Where a conviction rests on evidence obtained abroad and transmitted pursuant to a Belgian request for international mutual legal assistance, a defendant may, pursuant to Article 13 of the International Mutual Legal Assistance Act, request the production of a document showing that the evidence satisfies the conditions for lawfulness under foreign law. The right of defence requires that the defendant be able to contest in concreto the evidence obtained abroad. The judgment, however, held that the documents from the mother case added to the criminal file make it possible to examine the regularity of the foreign judicial decisions to intercept the SKY communications. The ground does not challenge those reasons and therefore cannot lead to quashing; it is inadmissible.
Third ground of appeal of petitioner II:
Alleged violation: Article 8 ECHR, Article 22 of the Constitution and Article 195 CCP.
Reasoning: Investigating Judge Van Linthout allegedly proceeded to decrypt a mobile device in circumstances where it was not established that offences had been committed with it or that petitioner II was its owner. This would have violated his right to respect for private and family life.
Court's response:
The ground is inadmissible insofar as it is directed not against the judgment but against the conduct of the investigating judge. On the merits, the Court of Appeal established that it was not the Belgian investigating judge but rather the French authorities who intercepted the inbound and outbound data on the SKY ECC servers at OVH in Roubaix, after which those data were subsequently rendered readable. All of this took place within the legal framework, with judicial authorisation, under judicial supervision and targeting a defined dataset. The judgment thus rejects the petitioner's defence in a regular and lawful manner. The ground cannot be upheld.