The EncroChat Case and European Cross-Border Evidence. Nuancing Procedural Safeguards

Abstract

This paper aims to examine, without seeking to be exhaustive, the legal challenges arising from the use in Spanish criminal proceedings of evidence obtained through the extraordinary technological intervention carried out by French and Dutch authorities on the EncroChat network.

The study analyzes the legal status of the evidence at the time of its collection by the aforementioned national authorities, its transmission via European judicial cooperation instruments, and, ultimately, its admissibility and incorporation into Spanish judicial proceedings.

The analysis is conducted by taking into account open-source law enforcement data regarding the EncroChat case, Spanish and European regulations, and relevant case law from both the Court of Justice of the European Union (CJEU) and the Spanish Supreme Court, with particular emphasis on the doctrine surrounding the European Investigation Order (EIO).

The paper focuses on the issues stemming from the admissibility of evidence, both in relation to its initial seizure through technological intervention and its subsequent transfer to Spanish authorities from France. It further addresses the resulting procedural challenges, including effective cross-examination (contradicción efectiva), the authenticity of the material, the integrity of the physical or digital media, and the subjective attribution of the evidentiary material to the defendants.