The significance of the Court of Justice of the European Union judgment of 30 April 2024 in case C-670/22 ("EncroChat") for the admissibility of evidence in criminal proceedings

This article analyses the judgment delivered by the Court of Justice of the European Union (CJEU) on 30 April 2024 in Case C-670/22 ("EncroChat") and its implications for the admissibility of evidence in national criminal proceedings. According to the CJEU, a European Investigation Order (EIO) requesting evidence already held by the executing Member State may only be issued by a competent authority as defined by the issuing State's national law. When issuing such an EIO, the issuing authority must assess its compliance with (i) the classic principles of necessity and proportionality as set out in Article 6(1)(a) of the Directive and (ii) all "material conditions" prescribed by national law for the sharing of evidence in domestic proceedings. This includes, inter alia, evaluating the effect of the executing State's refusal to disclose the technical features of the tools used to infiltrate the encrypted telecommunications system, comparing the categories of investigated criminal offences, and the coercive procedural measures used to obtain the data in question. The ability of the issuing State to use such evidence depends directly on (i) the conditions and procedures of its collection in the executing State and (ii) the defendant's awareness and ability to effectively challenge it. Where the defendant cannot meaningfully dispute the authenticity, legality or reliability of the evidence, such evidence must be excluded. In addition, if, in concreto, such a coercive measure would not be permissible under the issuing State's domestic law, the exclusion of that evidence is also governed by Article 31(1) and (3) of the Directive.