Five petitioners (I through V) were convicted by the Antwerp Court of Appeal in a case involving a criminal organisation active in international drug trafficking from Antwerp. The core of the case concerns the abduction and hostage-taking of a victim in Portugal (Lisbon), where the victim was tied up, beaten and blindfolded, allegedly with the aim of recovering stolen funds and cocaine. The evidence relied to a significant extent on intercepted communications via the encrypted SKY ECC network, as well as on statements from the victim and witnesses.
Grounds of Appeal, Alleged Violations and the Court's Response
Petitioner III — First ground of appeal:
Alleged violation: Articles 149 of the Constitution and 780 of the Judicial Code.
Reasoning: The judgment allegedly failed to respond to the position of petitioner III that the storage of SKY ECC data also violates Articles 7 and 8 of the EU Charter of Fundamental Rights, as interpreted by the CJEU (judgment in Digital Rights Ireland), beyond the mere applicability of the e-Privacy Directive.

Court's response:
Article 780 of the Judicial Code does not apply in criminal proceedings — to that extent the ground fails in law. For the remainder it is not upheld: the judgment had expressly held that SKY ECC was not a public provider, so neither the e-Privacy Directive nor Articles 7 and 8 of the Charter (nor the CJEU case-law based thereon) were applicable to the intercepted communications. The defence argument was thereby rejected.
Petitioner III — Second ground of appeal:
Alleged violation: Articles 6(1) and 8 ECHR and Articles 7 and 8 of the Charter, disregard of the right of defence.
Reasoning: The judgment allegedly wrongly held that SKY ECC was not a public provider, and the collection of all communications of all users would in any event constitute a violation of Articles 7 and 8 of the Charter in accordance with the Digital Rights Ireland judgment.
Court's response:
Lacks factual basis to the extent that the judgment is misread (the judgment had in fact considered the communications via SKY ECC as irregular for other providers, but not for the SKY network itself). For the remainder, the ground fails in law: the e-Privacy Directive and Articles 7 and 8 of the Charter are not applicable to communication data obtained via a direct interception measure on a private communications network.
Petitioner III — Third ground of appeal:
Alleged violation: Articles 6(1) and 8 ECHR and Articles 7 and 8 of the Charter, disregard of the right of defence.
Reasoning: Even if certain telecommunications data were irregularly retained, the judgment wrongly refused to exclude them from the evidence. In accordance with the effectiveness principle (CJEU), evidence must be excluded if the defendant cannot effectively comment on it, especially since the data are technical and complex and the identification of petitioner III entirely depends on them.
Court's response:
Partly fails in law. The Court clarifies: the effectiveness principle does not oblige the court to exclude evidence if the data are not decisive for the conviction, the defendant was not prevented from conducting adversarial proceedings and the requirements of Article 32 of the Preliminary Title of the CCP are met. Retrospective traffic and location data are, moreover, not so technical as to be necessarily beyond judicial knowledge. The Court of Appeal had correctly established that guilt rested primarily on the SKY ECC communications themselves, that the defence had ample opportunity for adversarial proceedings and that the limited data retention data obtained were not decisive.
Petitioner III — Fourth ground of appeal:
Alleged violation: Article 6(1) ECHR and Article 13 of the International Mutual Legal Assistance Act, disregard of the right of defence.
Reasoning: The judgment wrongly rejected the request to add the complete mother case. A defendant should not first have to render an irregularity plausible in order to request documents enabling him to contest foreign evidence in concreto.
Court's response:
Not upheld. The Court confirms that a defendant is entitled, under Article 13 of the International Mutual Legal Assistance Act, to request information showing that foreign evidence meets the conditions for lawfulness, without first having to render an irregularity plausible. However, for the addition of the entire foreign case file, the defendant must render an irregularity plausible in at least one relevant piece of evidence. The judgment had identified sufficient documents enabling petitioner III to contest the regularity in concreto (including all 36 orders under Article 88bis CCP and all French warrants), so the right of defence was respected.