Octopus Conference 2026: The Budapest Convention at 25 and the Defence Perspective on Cross-Border Digital Evidence
Twenty-five years after the Convention on Cybercrime (Budapest Convention) was opened for signature, international cooperation against cybercrime is routine. What remains open is how states cooperate and where the limits of that cooperation lie.
From 14 to 16 October 2026, five members of the Joint Defense Team took part in the Council of Europe's Octopus Conference 2026 in Strasbourg, held this year to mark the Convention's anniversary. Around 500 experts from more than 100 countries met at the Palais de l'Europe: prosecutors, investigators, judges, service providers, academics and policymakers.
Dominique Jud (Switzerland), Bojana Franovic Kovacevic (Montenegro), Christian Lödden (Germany), Justus Reisinger (Netherlands) and Louis R. De Groote (Belgium) brought the perspective of the defence to these discussions. We believe it belongs there.
Cooperation and Fundamental Rights Belong Together
We support international cooperation. Cybercrime does not stop at borders, and victims and society depend on states working together effectively. We advocate for that cooperation as firmly as we advocate for fundamental rights, because neither lasts without the other. Evidence gathered with respect for those rights holds up in court and keeps public trust.
The Budapest Convention builds this link into its own text. Under Article 15, every Party must subject the Convention's investigative powers to conditions and safeguards under domestic law that protect human rights, including those under the European Convention on Human Rights, and that respect the principle of proportionality. Depending on the measure, these include judicial or other independent supervision, grounds justifying the measure and limits on its scope and duration.
Faster Access to Cross-Border Digital Evidence: the Second Additional Protocol and the EU e-Evidence Package
One main session dealt with two instruments that make cross-border access to data faster and more direct. The Second Additional Protocol to the Budapest Convention (CETS No. 224), opened for signature on 12 May 2022, allows authorities to request subscriber information directly from service providers in other Parties and adds emergency cooperation and joint investigation teams. By April 2026, four States had ratified it.
Within the EU, Regulation (EU) 2023/1543 has applied since 18 August 2026, together with Directive (EU) 2023/1544. An authority in one Member State can now send a European Production Order directly to a service provider established or represented in another Member State. The provider must hand over the data within ten days, or within eight hours in an emergency.
Both instruments move service providers to the centre of evidence gathering. Judicial scrutiny concentrates in the issuing State, and the State where the provider is located is notified only of certain orders, mainly those concerning traffic and content data.
The Regulation also contains provisions the defence should use. A suspect or accused person, or a lawyer on their behalf, may request that a European Production Order be issued within the framework of national defence rights. This matters when exculpatory data are held by a provider abroad. Article 18 grants persons whose data are requested an effective remedy against the order and requires that the rights of the defence and the fairness of the proceedings be respected when the evidence is assessed.
Whether that remedy works in practice depends on what the defence can find out. In every case involving data obtained abroad, we ask:
which authority issued the order, and on what legal basis,
whether a court in any of the States involved reviewed it,
whether the data produced are complete and unaltered,
how automated or AI-assisted analysis produced the results presented in court,
where, and within which deadline, the person concerned can challenge the measure.
EncroChat, SkyECC and ANOM: Why Mutual Trust Cannot Replace Judicial Review
The encrypted-communications cases show what happens when mutual trust between states takes the place of judicial review. In the EncroChat and SkyECC proceedings, courts across Europe admitted data collected in France and transmitted by European Investigation Order, while key details of how the data were obtained remained classified. Several of these questions are now before the European courts:
In Prudniez (C-625/25), the CJEU must decide whether Article 14 of Directive 2014/41/EU and Article 47 of the EU Charter require France to give persons prosecuted in other Member States a remedy against SkyECC evidence it transmitted. JDT co-founders Christian Lödden, Justus Reisinger and Guillaume Martine are taking part in the proceedings. The Advocate General's Opinion is due on 19 November 2026.
Before the ECtHR, applications such as Silgir v. Germany (EncroChat) and Isha and Emmen v. Norway (SkyECC) concern the use of such evidence under Articles 6 and 8 ECHR.
On ANOM, research by Christian Lödden and Dr Johannes Makepeace (StV 2026, 441–448) concludes that the courts authorising the data collection were misled by a decrypt/encrypt substitution in mutual legal assistance requests.
The new instruments will raise the same questions at higher volume. The faster data move between States, the more it matters that a court reviews the order and that the defence can test the result.
Transnational Repression, Virtual Assets and AI: Where Safeguards Are Tested Next
A workshop on transnational repression, with former ECtHR judge Carlo Ranzoni, the UN Special Rapporteur on freedom of opinion and expression and Citizen Lab among the speakers, examined how to prevent cybercrime and e-evidence tools from being misused in ways that undermine human rights. Defence lawyers who handle extradition and mutual legal assistance know the practical side: whether a request is politically motivated or disproportionate has to be raised in the requested State, often within days.
A workshop on virtual asset service providers (VASPs) covered tracing, preserving, freezing and seizing crypto-assets, drawing on the T-CY's recent mapping study on virtual assets. On the first conference day, the Council of Europe opened the Additional Protocol on asset recovery to the Warsaw Convention (CETS No. 198) for signature. Seizure of virtual assets often starts long before any charge, and blockchain tracing reports rest on attribution methods the defence must be able to examine.
The main session on cybercrime-as-a-service and AI focused on how criminals use generative tools. The investigative side deserves the same attention. When authorities use automated or AI-assisted tools to sort and interpret large datasets, courts need to know how a result was produced before they rely on it.
Why Defence Lawyers Must Be Connected Across Borders
Institutions alone do not uphold the rule of law. It also depends on someone who tests the evidence, questions the process and insists that rights apply in every case, including the difficult ones. That is the task of defence lawyers. Our opponent is not the authorities; it is any violation of fundamental rights.
Investigations now routinely span several States, while the defence is often organised nationally. The Joint Defense Team brings together criminal defence lawyers from Belgium, France, Germany, Italy, Montenegro, the Netherlands and Switzerland to coordinate the defence in cases where cross-border digital evidence is gathered in one State and used in another.
Our delegation in Strasbourg reflected both regimes discussed at the conference. Three of us practise in EU Member States, where the e-evidence Regulation now applies. Two practise in Switzerland and Montenegro, where cooperation with EU authorities runs through the Budapest Convention and classic mutual legal assistance.
From Strasbourg to the Courtroom
We left Strasbourg encouraged that safeguards remain on the agenda, and committed to helping them reach the courtroom. The next date is 19 November 2026, when the Advocate General delivers the Opinion in C-625/25.
We thank the Council of Europe and the Presidency of Monaco of the Committee of Ministers for an excellent conference.
