Two petitioners (I and II) were convicted by the Antwerp Court of Appeal in a case concerning the importation of cocaine through the Port of Antwerp and involvement in a criminal organisation. The evidence rested largely on intercepted SKY ECC communications obtained through a Joint Investigation Team (JIT) with Belgium, the Netherlands and France. Petitioner I (a port employee/security officer) allegedly gave prior assistance for the "extraction" of containers containing narcotics. Central legal debates concerned access to the mother case and the French investigation file, the applicability of the e-Privacy Directive to SKY ECC, the regularity of the evidence used and the classification of petitioner I's acts as participation.
⚠️ [TRANSLATOR'S NOTE] "GOT" (gemeenschappelijk onderzoeksteam) is rendered as "Joint Investigation Team (JIT)", the standard English term used in EU law.
Grounds of Appeal, Alleged Violations and the Court's Response
First ground of appeal — First limb:
Alleged violation: Article 6 ECHR, disregard of the right to adversarial proceedings.
Reasoning: The judgment allegedly wrongly treated the principle of mutual trust as absolute, thereby preventing any further examination of the regularity of evidence-gathering in France. Due to missing documents, the petitioner was unable to fulfil his obligation to raise the issue.
Court's response:
Lacks factual basis. The judgment had not based the rejection of the joinder request exclusively on the principle of mutual trust, but on a set of other reasons that the limb does not challenge (including: sufficient documents already added, no plausible irregularity, no evidence that the prosecution withheld documents). For the remainder, inadmissible on account of factual assessment.
First ground of appeal — Second limb:
Alleged violation: Article 6 ECHR, disregard of the right to adversarial proceedings.
Reasoning: The judgment allegedly wrongly invoked the privacy of third parties and the secrecy of the investigation as grounds for refusing to add the mother case and the derived federal criminal investigation.
Court's response:
Fails to the extent it proceeds from a different interpretation of the law. The Court clarifies that the defence has no unlimited right to the addition of documents from another file merely to check whether that file contains an irregularity — for that purpose, the defendant must render the irregularity somewhat plausible. The court decides in a manner not open to review and may take into account the privacy of third parties and the secrecy of ongoing investigations. On the basis of the extensive reasons of the judgment (privacy violation if access to complete dataset, loyalty of prosecution not rebutted, all relevant documents already added), the judgment could lawfully decide that addition of the complete mother case was not required. For the remainder, inadmissible.
First ground of appeal — Third limb:
Alleged violation: Article 6 ECHR, disregard of the right of defence.
Reasoning: The petitioner was entitled to information about the filtering process and the filtering criteria used by investigators when selecting relevant SKY ECC communications.
Court's response:
Fails in law to the extent it posits an absolute right. The Court clarifies that where the prosecution is faced with a mass of data and makes a selection, the defendant in principle has the right to know what criteria were used — but this right is not absolute and the court decides in a manner not open to review. The judgment had adequately clarified how the petitioner's identification had been carried out and that the only selection consisted of adding all communications linked to the facts. Inadmissible for the remainder.
First ground of appeal — Fourth limb:
Alleged violation: Article 6 ECHR, disregard of the right to adversarial proceedings.
Reasoning: The judgment allegedly wrongly refused to add all orders under Articles 46bis and 88bis CCP from the mother case, while not all orders had been added.
Court's response:
Not upheld. The judgment had established that all 36 orders under Article 88bis CCP had already been added and that the referral and regularity could be adequately examined. Foreign legislation is, moreover, publicly accessible. The judgment justifies the decision in accordance with the law.
First ground of appeal — Fifth limb:
Alleged violation: Article 6(1) ECHR and Article 32 of the Preliminary Title of the CCP, disregard of the right to a fair trial.
Reasoning: The telecommunications data had been retained on the basis of Article 126 of the Electronic Communications Act, which was found to be incompatible with EU law by both the CJEU and the Constitutional Court. The evidence derived therefrom should have been excluded, and the authorities had acted intentionally or through inexcusable negligence.
⚠️ [TRANSLATOR'S NOTE] "Antigoon-benadering" refers to the Antigoon doctrine (named after Hof van Cassatie 14 October 2003), the Belgian standard for assessing whether unlawfully obtained evidence must be excluded. The equivalent in English-language comparative law is sometimes called the "Belgian exclusionary rule test" or simply the "Antigoon test".
Court's response:
Fails to the extent it proceeds from a different interpretation of the law. The Court confirms the Antigoon approach as refined in light of CJEU case-law: it is exclusively for national law to determine the rules on the admissibility of evidence (the principles of equivalence and effectiveness). At the time of the orders, there was an apmother legal basis (Article 126 of the Electronic Communications Act), so there was no intentional or inexcusable fault. The communications data were, moreover, not decisive for the conviction. The judgment could lawfully hold that exclusion was not required.
First ground of appeal — Sixth limb:
Alleged violation: Article 6(1) ECHR, disregard of the right to a fair trial.
Reasoning: The judgment wrongly refused to appoint a technical expert to examine the reliability of the technical evidence-gathering process, while certain messages were missing.
Court's response:
Fails in law. The court is not required to order an expert examination merely because a defendant raises questions about the reliability of electronic evidence. The court decides in a manner not open to review on the necessity thereof, subject to compliance with its duty to state reasons. The judgment had adequately reasoned why the appointment was not necessary (no plausible unreliability, loyal conduct of investigators, full adversarial proceedings possible).
Second ground of appeal — First limb:
Alleged violation: Article 10, §3, 1°, of the International Mutual Legal Assistance Act and Articles 2 and 9(1) of the JIT agreement.
Reasoning: The judgment allegedly wrongly held that no express consent of all JIT partners was required, given that the team's objective related solely to unmasking SKY ECC itself as a criminal organisation, not to the prosecution of users.
Court's response:
Fails in law. A JIT agreement is not a statute within the meaning of Article 608 of the Judicial Code whose violation can be submitted to the Court. The judgment had, moreover, established as a matter of fact that the founding agreement expressly stated that the identification of users and the mapping of criminal organisations were also among the objectives. That is a finding of fact not open to review.
Second ground of appeal — Second limb:
Alleged violation: Article 3 of the e-Privacy Directive.
Reasoning: The judgment allegedly wrongly held that SKY ECC is not a public provider and that the Directive is therefore not applicable. The only relevant criterion would be whether publicly available electronic communications services were offered via the network.
Court's response:
Lacks factual basis. The judgment had established as a matter of fact that SKY ECC did not offer its services to the public but exclusively to a defined target group (criminal organisations and persons wishing to commit offences). That is a finding of fact not open to review.