The appeal in cassation is directed against a judgment of the Antwerp Court of Appeal (criminal division) of 8 May 2024. The defendant Y.E.B. is prosecuted in the context of the SKY ECC investigation. He raises three grounds of appeal with several limbs. The case essentially concerns the identification of the petitioner as the user of certain SKY ECC PINs (CTU0YM, 490101, QBTDKG and ED6ZRE), the availability of metadata and source data, and the refusal to hear investigators as witnesses.
Grounds of Appeal, Alleged Violations and the Court's Response
First ground of appeal — First limb:
Alleged violation: Article 149 of the Constitution and the duty to state reasons.
Reasoning: The judgment allegedly failed to respond to the petitioner's defence in which he contested the first-instance court's findings regarding his identification as the user of the relevant PINs.
Court's response:
The Court of Appeal listed several substantive data (contacts with the brother, stay in Dubai, identical voice in voice messages, Antwerp origin of the user) and thereby adequately rejected the petitioner's defence. The judges on appeal were not required to address each argument separately where it did not constitute an independent line of defence. The limb cannot be upheld.
Second ground of appeal — Second limb:
Alleged violation: Article 6(1) ECHR and Article 149 of the Constitution, as well as the right to adversarial proceedings.
Reasoning: The judgment allegedly failed to respond to the petitioner's request to be able to consult the original source data (PCAP files) that were originally transmitted by the French authorities.
Court's response:
The Court formulates the applicable legal standard: a defendant in principle has the right to all data required for the proper exercise of his right of defence, including source files. However, this right is not absolute: the defendant must, on the basis of concrete elements, render it somewhat plausible that the addition of those data is required, for example by demonstrating that the data are unreliable or that there is an irregularity. General observations or speculation do not suffice where there are serious reasons for refusing the addition. The court weighs the request against reasons such as the secrecy of an ongoing investigation, the privacy of third parties and the protection of investigative techniques, and must always provide compensating safeguards. In the present case, the judges on appeal established that the reliability of the link between SKY PINs and IMEI numbers had been demonstrated on the basis of purchased and seized devices and confirmed by the content of the communications, so that adequate compensating safeguards were in place. The limb cannot be upheld.
⚠️ [TRANSLATOR'S NOTE] "BOM" (bijzondere opsporingsmethoden) refers to Special Investigation Methods under Belgian law (Articles 47bis et seq. CCP). "GOT" = JIT. "PCAP" = Packet Capture files.
Second ground of appeal — Third limb:
Alleged violation: Articles 6(1) and 6(3)(d) ECHR and Article 149 of the Constitution, as well as the right to adversarial proceedings.
Reasoning: The judgment wrongly refused to disclose which specific protocols were used for the identification of the petitioner as the user of the SKY ECC devices. Furthermore, the judges on appeal refused to hear three investigators as prosecution witnesses, thereby disregarding the right to adversarial proceedings.
Court's response:
The Court nuances the scope of Article 6(3)(d) ECHR: the three criteria of the ECtHR (impossibility of hearing the witness, decisive character of the statement, compensating factors) apply only to a witness who, during the preliminary investigation, made inculpatory statements about the guilt of the defendant. Where a defendant wishes to hear an investigating officer solely about the manner of evidence-gathering (such as automated techniques), the court decides in a manner not open to review whether that examination is necessary. The refusal can be justified where the defendant does not render somewhat plausible that there is a serious ground for contesting the evidence-gathering, or where that evidence-gathering cannot have a decisive influence on the outcome. In the present case, the investigators sought to be heard were not prosecution witnesses and the petitioner did not render any serious ground for challenge plausible. As to the non-disclosure of the specific protocols: the working method had been transmotherly and comprehensibly explained in the reports and was susceptible to review, while the further details are covered by the secrecy of the investigation. The decision is justified in accordance with the law. The limb cannot be upheld.
Third ground of appeal:
Alleged violation: Article 6 ECHR and Articles 189ter and 235quater CCP, as well as the right to adversarial proceedings.
Reasoning: The judges on appeal referred to a judgment of the Indictment Division (kamer van inbeschuldigingstelling) of 24 March 2022 (which conducted a preliminary review of Special Investigation Methods) as an argument that the petitioner had not rendered any irregularity plausible. This would confer on that judgment a binding force which, pursuant to Article 235quater CCP, it does not have, and would hold against the petitioner that he was unable to participate in adversarial proceedings during that preliminary review.
⚠️ [TRANSLATOR'S NOTE] "Kamer van inbeschuldigingstelling" is the Indictment Division (or Chamber of Indictment) of the Court of Appeal, which exercises judicial oversight over preliminary investigations. Sometimes translated as "Chamber of Indictment" or "Committal Chamber".
Court's response:
The ground rests on an incorrect reading of the judgment. The judges on appeal referred to the judgment of 24 March 2022 not as a binding decision but as an argument supporting their finding that the petitioner had not rendered any irregularity plausible. In addition, the judgment independently held that the purchase of SKY ECC devices by undercover agents in the mother case has no bearing on the present criminal proceedings, is not used as evidence and does not constitute infiltration within the meaning of the Special Investigation Methods legislation, so that no review of Special Investigation Methods was required. The ground lacks factual basis.