Europol, Shadow Data and the Rule of Law: Why Secret Surveillance Must Face Judicial Control

Europol Headquarter in The Hague, Netherlands

Europol’s Expanding Role in European Criminal Investigations

It is exactly what the Grand Chamber of the European Court of Human Rights warned for back in 2021 in the decision in the case of Big Brother Watch (and others) versus the United Kingdom: “a system of secret surveillance set up to protect national security (and other essential national interests) may undermine or even destroy the proper functioning of democratic processes under the cloak of defending them”. Therefore, the Court ruled, there must be “adequate and effective guarantees against abuse.”

Shadow Data Repositories and the Risk to Fair Trial Rights

A collective of investigative journalists has published findings about the way Europol is using a “shadow data repository containing vast amounts of sensitive personal information and used it for years beyond its lawful scope, according to internal documents and whistleblower accounts”. This magnificent piece of investigative research is showing what multiple academics, NGO’s, human rights activists, lawyers and journalists were already warning for since a long time. Europol’s role is shifting into a real and above all independent functioning police force within the European Union, while their work is at the same time their work is being shield from the public and, thus, (public and judicial) scrutiny.

Big Brother Watch and the Minimum Standard of Judicial Control

On the one side, the shifting role is not a problem in itself, as it can be a well-considered, democratic choice. On the other hand, it will be a problem if there is no judge to check whether the adequate and effective guarantees against abuse are met. As the Grand Chamber of the European Court of Human Rights stated in the Big Brother Watch-decision, and this case law is considered to be the bare minimum within the European Union: judicial control should make it possible to review “the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law.”

Why Sky ECC, EncroChat and ANOM Cases Need Transnational Scrutiny

For us, as a collective of criminal defence lawyers, it illustrates once we need judges to review investigative measures executed on a transnational level, with support of Europol – for example in the cases before the European Court of Justice in the cases against Europol in the context of the interception of the Sky ECC and EncroChat telecommunication providers.

Evidence, Transparency and the Integrity of Criminal Proceedings

After all, as it is stated in the article on the recent discoveries: “the integrity of our justice system depends on evidence being gathered, handled and governed lawfully at every stage” and “failure to track data access could also raise questions about the reliability of evidence used in criminal prosecutions”.

The Joint Defense Team’s Position: No Justice Without Oversight

Therefore, and whatever one may think on ‘big brother-like’ investigations, transparency is key to enable independent, judicial scrutiny. And as Joint Defense Team, we will fight for that!