Ongoing Developments in international co-operation in the SkyECC investigation

Court of The Hague

Documents from various international criminal cases have once again revealed a different picture of international cooperation in the SkyECC investigation. A joint investigation team from France, the Netherlands and Belgium was involved in the operation surrounding the SkyECC crypto communication service. It was repeatedly stated, by the Dutch Public Prosecution Service among others, that the operation was actually carried out by France and in France and was not subject to review by a Dutch court (due to the international principle of trust). For example, it was indicated to Dutch judges that France not only obtained the data, but also decrypted it, using (French) legal powers.

However, it now appears that France provided another European country (Norway) with the decrypted communications and claims that France (spontaneously) received them from the Netherlands... This is yet another new development that demonstrates that international investigations do not function transparently and that prosecutors in different countries even take different, opposing positions.

The result is that the various individual suspects in these criminal cases can no longer know where they stand and where they should seek justice. After all, criminal court judges in different countries all point to the international principle of trust, after which the individual suspect is left empty-handed. That is one of the main reasons for our collective to join forces with criminal defence lawyers from different countries to defend these types of cases.

Specifically, it will now also be a reason to not only complain on behalf of individual suspects in the country of prosecution and in France about violations of fundamental (trial) rights, but now also in the Netherlands, now that (some of) the data has been processed or made usable/readable without justification.

It has already been shown that the Netherlands obtained certain geodata/metadata and shared it internationally for the purpose of identifying suspects in foreign criminal cases, among other things (see more here). This also raises the question, following the earlier EncroChat judgement of the European Court of Human Rights: should a foreign suspect now also complain in the Netherlands about the acquisition and processing of that data?