At the point when the evidence in a criminal case consists (in part) of EncroChat messages allegedly sent by the accused and obtained in the large-scale hacking of EncroChat, various documents relevant to the assessment of the case should be added to the pleadings. In each case, these are documents relating to the legality of the acquisition of the messages exchanged through EncroChat. The defense must be given the opportunity to investigate whether these messages were obtained lawfully. To substantiate possible requests for investigation on this point, we will outline the legal framework applicable to this.
It should be noted that the documents relevant to assessing the legality of the acquisition of the EncroChat messages fall into roughly two categories. First, there are documents that concern the legality of France's actions. After all, the French authorities used a technical device to ensure that the messages sent via EncroChat could be intercepted. In addition, the actions of the Dutch investigative authorities are also relevant. France provided the Netherlands with an enormous amount of EncroChat messages, which were then processed by the Dutch investigative authorities within the 26Lemont investigation. This means that the documents relating to the legality of the actions of the Dutch investigators are also relevant.
When it comes to the question whether the documents should be added to the case file, a different legal framework applies to the two categories of documents mentioned above. When considering whether the legality of the French actions may be relevant to answering the questions of Articles 348 and 350 of the Dutch Code of Criminal Procedure, different legal considerations play a role than when testing whether the actions of the Dutch investigative authorities in the 26Lemont investigation are also relevant to the present case. We will therefore first discuss both legal frameworks separately. Then we will indicate which specific documents should in any case be added to the procedural documents at the moment that use is made of messages obtained through the EncroChat hack.
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