The Case of EncroChat and the Presumption of Innocence in EU Law

What if law enforcement had the power to take down an entire phone network? How comfortable would you feel if your messages were exposed and viewed at length? When the EncroChat network was compromised by French law enforcement in 2020, questions were raised not only about the capability to access highly secure information, but also how the presumption of innocence is afforded to criminal suspects pre-trial.

For current Utrecht LLM student Suzanne Flynn, as trends in law enforcement progress towards detection rather than reaction, the takedown of the EncroChat network encapsulates a sea change in the area of encryption and the law enforcement response thereto.

The EncroChat investigation has uprooted many preconceived ideas of the capability of law enforcement. The concerns surrounding the presumption of innocence and therefore, the admissibility of evidence are in my opinion, well founded. Although EncroChat has ceased operations, new replacements such as Sky ECC have already entered the market only to be subsequently compromised by law enforcement, further confirming the proactive response of law enforcement regarding encrypted networks supposedly used by criminals. Instead of exercising this proactive approach, I would recommend that law enforcement authorities focus on developing encryption as a tool for law enforcement correspondence. Using encrypted text messages between different parties could allow civilians to give anonymous tips for example, or enable those in witness protection to communicate with law enforcement without fear of their communications becoming intercepted.

Crucially, it should be mentioned that the questions mentioned in the present claims before the ECtHR regarding EncroChat relate primarily to Article 8 ECHR (the right to privacy) and not Article 6(2).  However, Article 6(1) ECHR, which focuses on the right to a fair trial, is mentioned in the preliminary questions to the Strasbourg court. In my view, the absence of reference to Article 6(2) represents a lost opportunity to firmly assess a potential violation of the presumption of innocence in the context of EncroChat. Reference to Article 6(2) ECHR could have facilitated a broader discussion on how the presumption is to be interpreted where interception of communications by law enforcement is undertaken. There is still the possibility that the presumption may be mentioned in the ultimate proceedings, perhaps in complementing Article 6(1) ECHR. Nonetheless, the anticipated judgment of the ECtHR could prove pivotal in formulating a global response to law enforcement intervention in encrypted communications going forward.

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The Case of EncroChat and the Presumption of Innocence in EU Law, Renforce Blog