J.H., a Belgian lawyer, was convicted by the Antwerp Court of Appeal for breach of professional secrecy (counts B.3 and B.4). The evidence rested on intercepted SKY ECC communications that had been intercepted by the French authorities within the framework of the JIT (Belgium, Netherlands, France, signed on 13 December 2019) and transmitted "in bulk" — in encrypted form — to the Belgian investigators. Only after decryption in Belgium did it emerge that part of the communications originated from or were directed to a lawyer (J.H.). The Belgian procedure (notification of the Bar President, separation of the conversations) was correctly followed once this was established.
Grounds of Appeal, Alleged Violations and the Court's Response
First ground of appeal — First limb:
Alleged violation: Articles 100, 100-1 and 100-3 to 100-8 of the French Code of Criminal Procedure and Article 13 of the International Mutual Legal Assistance Act.
Reasoning: The judgment allegedly wrongly held that French legislation had not been violated. The conditions of Article 100 of the French CCP (suspicion of an offence by the lawyer as a precondition for intercepting his line) and Article 100-7 of the French CCP (mandatory prior notification of the Bar President on pain of nullity) would not have been complied with. The fact that the conversations were received in bulk and in encrypted form does not alter this.
⚠️ [TRANSLATOR'S NOTE] "Stafhouder" is the President (or Dean) of the Bar Association. Standard English equivalents: "Bar President", "Head of the Bar", "Bâtonnier" (French term also used in Belgian legal discourse).
Court's response:
Fails in law. The Court formulates an important new rule: the Belgian court is not required to order the nullification and exclusion of communications of lawyers intercepted abroad on pain of nullity pursuant to requirements prescribed by foreign law, where it establishes that the foreign court that ordered the interception measure did not know and could not reasonably have known at the time of its decision that a lawyer was involved — which is the case where the communications were encrypted and only the Belgian court had the technical capability to decrypt them. In that case, the Belgian court may lawfully hold that the evidence remains regular, provided it establishes that the ratio legis of the foreign provision has been satisfied in an adequate manner. The judgment had established as a matter of fact that the encryption made it impossible to know that lawyer communications had been intercepted, that the Belgian procedure had been correctly followed and that the petitioner himself had acknowledged that the established Belgian procedure had been adhered to. The limb cannot be upheld.
First ground of appeal — Second limb:
Alleged violation: Articles 100, 100-1 and 100-3 to 100-8 of the French CCP, Article 13 of the International Mutual Legal Assistance Act and Article 8 ECHR.
Reasoning: The judgment allegedly wrongly used the fact that the French authorities could not have known that lawyer communications were being intercepted to the detriment of the suspect. If the legal basis is inadequate, this cannot be turned against the suspect.
Court's response:
Fails in law. Article 8 ECHR does not always oblige the court to declare null and void communications involving a lawyer where it only emerges after the interception has been ordered and carried out that a lawyer was involved. For the remainder, the limb has the same scope as the first limb.