ANOM before the Dutch Supreme Court (Hoge Raad): A Misled Lithuanian Judge and the Limits of Mutual Trust
The Supreme Court of the Netherlands (Hoge Raad) now has before it a criminal case built in part on ANOM evidence, and with it the question of what follows when the foreign court order behind the evidence was obtained by misleading the judge who issued it. Neither the district court nor the court of appeal knew which EU state had hosted the FBI's ANOM server. It has since emerged that Lithuanian police presented the FBI-built platform to a judge in Vilnius as a service set up by criminals.
The case puts the Dutch interstate principle of trust (interstatelijk vertrouwensbeginsel) to the test. Under that principle, Dutch courts presume that evidence gathered abroad was obtained lawfully and do not review the foreign procedure themselves. The deception at the centre of the appeal is documented in the Lithuanian files that Joint Defense Team (JDT) Co-Founder Christian Lödden obtained and analysed with Dr Johannes Makepeace (Strafverteidiger, StV 2026, 441–448). The cassation appeal is argued by JDT member Justus Reisinger. Dutch newspapers NRC and AD have reported on the case.
ANOM in the Netherlands: 530 Devices and Data Delivered Three Times a Week
ANOM (also written AN0M or ANØM) was an encrypted phone service that the FBI developed and distributed through undercover channels under Operation Trojan Shield, with Europol coordinating the European side through its Operational Task Force Greenlight. Users believed their messages were end-to-end encrypted. In fact, a copy of every message was routed to a server used by the investigators.
When the operation was made public on 8 June 2021, more than 800 arrests were reported worldwide, 49 of them in the Netherlands. A judgment of the District Court of Oost-Brabant of 23 June 2025 (ECLI:NL:RBOBR:2025:3538) gives a more detailed picture of the Dutch side:
there were 530 ANOM devices in the Netherlands,
on 23 March 2021 the US authorities assured their Dutch counterparts, through a liaison officer, that the data had been obtained lawfully,
from 26 March 2021 US agencies supplied ANOM datasets to the Dutch Public Prosecution Service (Openbaar Ministerie) three times a week,
according to an answer of the European Commission of 3 August 2023 (E-001692/2023), Dutch representatives sat in the FBI-led Operational Task Force Greenlight.
The Public Prosecution Service stated in February 2022 that Dutch authorities had not cooperated with the US authorities on Trojan Shield.
What the Dutch Courts Were Not Told: The "Third Country" Was Lithuania
US law did not allow the FBI to run the interception from US soil, so the operation needed a third state to host the server and formally carry out the collection. For years Dutch courts worked with that anonymous "third country". In May 2022 the FBI told the Dutch prosecution only that it was an EU member state. The District Court of Oost-Brabant, in its judgment of 18 July 2024 (ECLI:NL:RBOBR:2024:3404), treated that state's role as mere technical assistance.
Investigative reporting identified the state as Lithuania, first 404 Media in 2023 and then the Frankfurter Allgemeine Zeitung in September 2025, which also reported that the Lithuanian judge had been misled. Lödden and Makepeace went on to analyse the original court orders, mutual legal assistance requests and correspondence between the FBI, US prosecutors and the Lithuanian authorities (summary on Legal Tribune Online, 7 July 2026). The documents show that:
the FBI, US prosecutors and Lithuanian police and prosecutors agreed to present ANOM as a criminal network already operating in Lithuania,
the US mutual legal assistance request omitted that the Lithuanian server still had to be rented and set up,
in the operative passage the word "decrypt" was replaced with "encrypt", and every reference to the FBI having built the platform and modified the devices was removed,
on the basis of a request of 30 September 2019, an investigating judge in Vilnius authorised the covert copying of the server on 3 October 2019, and later extensions repeated the same account,
in April 2026 the US Department of Justice indirectly confirmed the authenticity of these documents in a "Motion for Inquiry Regarding Violations of Protective Orders".
The defence in the Dutch proceedings adds two points. Lithuanian law does not permit a honeypot operation of this kind, not least because of the risk of entrapment. And the police chose the criminal-platform account because they expected problems with the judge if the FBI's role became known.
Part of the preparation took place in The Hague. At a Europol coordination meeting there in February 2019, investigators and prosecutors from Norway, Lithuania, Spain, England, Belgium and Germany were briefed on the operation.
Can the Interstate Principle of Trust Survive a Deceived Court?
The Dutch framework comes from the Hoge Raad's preliminary ruling on EncroChat and SkyECC of 13 June 2023 (ECLI:NL:HR:2023:913). Dutch courts must respect the decisions of the foreign authorities and presume the foreign investigation lawful. That presumption falls away only where it has been definitively established in the foreign state that the investigation breached the applicable rules. The reliability of the results is likewise presumed unless there are concrete indications to the contrary, and the manner in which evidence was obtained abroad matters only insofar as it affects the fairness of the trial.
The District Court of Oost-Brabant applied this framework to ANOM in the same way in its 2024 judgment. It held that it was not for the Dutch criminal court to review the foreign investigation and that no authorisation from the investigating judge (rechter-commissaris) was needed to process the ANOM data.
The Lithuanian documents expose a gap in that test. It assumes that a foreign court reviewed the measure and could later declare it unlawful. Here the foreign court was the target of the deception. The Lithuanian orders were issued in secret, and, as far as is known, no Lithuanian court has examined how they were obtained. A presumption that can only be rebutted by the very system that was misled leaves the defendant no realistic way to rebut it.
German courts face the same question. The Federal Court of Justice (BGH) held ANOM data admissible on 9 January 2025 (1 StR 54/24), relying on mutual trust, and the Federal Constitutional Court (BVerfG) followed on 23 September 2025 (2 BvR 625/25). Both decisions predate the publication of the Lithuanian documents.
A Court of Cassation Confronted with New Facts
The Hoge Raad reviews points of law on the facts established by the lower courts and does not re-examine the evidence. The facts about the Lithuanian authorisation were not before the district court or the court of appeal in this case. Reisinger describes the situation as unique and worrying, and argues that the principle of trust must now be redefined.
Its reasoning rests on the role of the criminal judge. Supervising compliance with the law is the core task of the criminal court, whether the conduct in question is that of citizens, the state's own investigative services or foreign ones. Courts that accept foreign evidence on blind trust cannot detect when democratically enacted rules are circumvented, or when a judge abroad has been misled. On this view, the Hoge Raad has to ensure that the judge's supervisory role over criminal investigations keeps its meaning.
Entrapment and the Right to a Fair Trial under Article 6 ECHR
The deception concealed who operated ANOM, and with it the question of state-induced crime. In Ramanauskas v. Lithuania (Grand Chamber, 5 February 2008, no. 74420/01) the European Court of Human Rights held that once a defendant's allegation of entrapment is not wholly improbable, the prosecution must prove that there was no incitement. The defence can only make that allegation if it has access to the material showing how the operation was designed and authorised.
Article 6(1) ECHR and Article 47(2) of the EU Charter of Fundamental Rights bind the Netherlands as they bind every other state in which ANOM evidence is used. Equality of arms requires that the defence can test the Lithuanian authorisation, the mutual legal assistance requests and the instructions for distributing the devices through undercover officers.
What This Means for ANOM Defendants in the Netherlands and Across Europe
For defence teams, the Lithuanian documents are concrete indications of the kind the Hoge Raad's 2023 framework requires. In practice:
in pending proceedings, the defence can request disclosure of the Lithuanian court orders and the US mutual legal assistance requests and contest the presumptions of lawfulness and reliability on the basis of the documented facts,
for final convictions, revision (herziening) under Article 457(1)(c) of the Dutch Code of Criminal Procedure requires a fact unknown to the trial court that raises a serious suspicion of a more favourable outcome, such as an acquittal or a declaration that the prosecution is inadmissible; whether the Lithuanian deception meets that threshold will depend on the individual case,
in Germany and other states that admitted ANOM data on the basis of mutual trust, the same documents call the factual premise of those decisions into question.
JDT works on these questions across borders. Christian Lödden obtained the Lithuanian court orders, the US mutual legal assistance requests and more than 400 pages of correspondence between the FBI and the Lithuanian authorities, and has introduced them in German proceedings. JDT members Justus Reisinger (Netherlands), Guillaume Martine (France) and Christian Lödden conducted the proceedings before the French Cour de cassation that led to the SkyECC reference to the Court of Justice of the European Union in Prudniez (C-625/25); the Advocate General's opinion is scheduled for 19 November 2026.
Ubi Iudicia Deficiunt: The Role of the Hoge Raad
The façade of the Hoge Raad in The Hague carries a maxim drawn from Hugo Grotius: ubi iudicia deficiunt, incipit bellum, where judicial process fails, war begins. The Lithuanian judge was meant to be the judicial check on Operation Trojan Shield. The Dutch courts relied on that check without knowing it had been circumvented.
The Hoge Raad can now decide how much trust a Dutch court owes to a foreign authorisation obtained by misleading the judge who granted it. Its answer will matter for every ANOM case still pending in the Netherlands and is likely to be read closely in the other jurisdictions where ANOM evidence is used.
Frequently Asked Questions
What is ANOM?
ANOM was an encrypted phone service secretly developed and distributed by the FBI under Operation Trojan Shield. Copies of all messages were sent to a server in Lithuania, and the operation was made public on 8 June 2021.
Which country hosted the ANOM server?
Lithuania. An investigating judge in Vilnius authorised the covert copying of the server on 3 October 2019, on the basis of a request that presented ANOM as a service run by criminals.
Is ANOM evidence admissible in the Netherlands?
Dutch district courts have admitted ANOM evidence in published judgments under the interstate principle of trust, for example the District Court of Oost-Brabant on 18 July 2024. The pending cassation case gives the Hoge Raad the opportunity to rule on the issue.
What is the interstatelijk vertrouwensbeginsel?
It is the Dutch interstate principle of trust, under which Dutch courts presume foreign investigative acts lawful unless it has been definitively established in the foreign state that they breached the applicable rules (Hoge Raad, 13 June 2023, ECLI:NL:HR:2023:913).
