After many courts initially resigned themselves to the refusal of the Public Prosecution Service to hear the contacts with which suspected users had chatted phones with Sky ECC, that has now changed. That is what lawyer Cem Polat says, who started systematically requesting this from last year: ‘I notice that almost all courts now grant the request to hear counter contacts. Also courts that were initially not very keen on this, such as the court in The Hague and Tuesday also the court in Haarlem.’
When suspects in a criminal case exchanged treasure messages with EncroChat or Sky ECC, prosecutors refused to indicate at the request of lawyers which people they believed were behind the chat names. The lawyers wanted to know those names to hear them as witnesses. Requests to be allowed to hear the contacts of suspects, especially if they are (or may be) co-suspects are always granted, but not in the case of users of encryption services. The Public Prosecution Service does not want to reveal with whom PGP users had had contact, mainly because of investigative interests. Courts went along with that last year. But that has changed since the beginning of this year.
“If a suspected Sky-ECC has exchanged messages with other Sky IDs about the criminal offenses, I want to be able to hear the people behind those Sky-IDs as witnesses,” says lawyer Polat. “Especially if my client denies being the user of a Sky ID.”
The Public Prosecution Service in Haarlem had stated that the identity of users of six encryption accounts was unknown, but was known to the national public prosecutor’s office. The court then ordered those persons to be heard before the examining magistrate.
The District Court of Utrecht previously explained that compelling investigative interests are not a legal ground to reject witnesses. The court ruled that a refusal by the Public Prosecution Service to release counter contacts affects the right to a fair trial. The interest of the suspects is ‘evidently’ great.
‘In Amsterdam, too, judges always seem to grant the lawyers’ requests if they are properly substantiated,’ says Polat. This search and hearing of witnesses will certainly cause delays in court cases, thinks Polat. ‘A solution suggested by one of the courts is to sit down at the table to see if there are any process agreements to be made. Perhaps this is a solution for the many SKY and ECNRO cases that are flooding the courts.’
When procedural agreements are made, the judiciary and defense have agreed in advance how they want to deal with the review of parts of the evidence so that cases can be dealt with much more quickly by judges.
Court still wants to hear Sky ECC users as suspects