Dutch authorities can use hacked encrypted messaging services as evidence: Supreme Court

The Dutch authorities can use information from seized encrypted messaging services as evidence, the Supreme Court ruled on Tuesday about messages intercepted from EncroChat and SkyECC. Several courts asked the Supreme Court to rule on the matter due to defense attorneys’ concerns.

The Public Prosecution Service (OM) has used messages criminals sent to each other on these services as evidence in several criminal trials. Defense lawyers wondered whether that was allowed. Their main problems were that SkyECC and EncroChat’s servers were in France and were broken into by the French authorities. The lawyers objected that they couldn’t get access to the way in which the data was obtained, partly because the means of interception used is considered a French state secret.

The OM argued that the “interstate trust principle” applies. The principle is based on the general trust in the other state’s legal system, which is the case between the Netherlands and France. The OM also pointed out that the two countries set up Joint Investigation Teams to work together in investigating SkyECC and EncroChat.

The Supreme Court agreed that the interstate trust principle applies here. That means the Dutch courts can expect that the French authorities performed their investigations lawfully and that the results are reliable. “The Dutch court is only obliged to discuss the reliability of the results in more detail if there are concrete indications to the contrary,” the Supreme Court said.

Therefore, the messages intercepted from the EncroChat and SkyECC servers can be used as evidence in Dutch criminal cases.