EncroChat Part 2: Protecting Human Rights in Multinational European Criminal Investigations

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  • Is an EIO order permissible even if it is made on the basis of criminal proceedings brought unlawfully under the national law of the Member State?
  • Is an EIO order also admissible if its purpose is to obtain a sufficient factual basis for the commencement of future criminal proceedings?
  • Is it also possible to order an EIO on the basis of criminal proceedings which are based on a purely fact-related initial suspicion without reference to persons?
  • Is it permissible to order an EIO if this is done on the basis of criminal proceedings that have been instituted unlawfully?
  • Are Art. 7 CFR (respect for private and family life) and 8 CFR (protection of personal data) applicable in the event of an act of exploitation contrary to data protection law? In the scope of Art. 8 CFR in particular the impact of data accuracy concerns, whereas Art. 7 CFR could be violated by the transmission of data of private conversations of until then non-suspect persons.
  • Art. 47 subsec. 2 CFR grants a fair trial and Article 48(2) CFR requires respect for the rights of the defense. Both Fundamental rights could be violated by the fact that without information about the origin and extraction of the data and the way in which it is processed, neither the quality nor the completeness of the data can be checked using algorithm-driven (ai) readout and selection criteria. Nor can the defense confront the investigators involved in these processes.

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Center for International Human Rights

A research center at John Jay College focused on a critical examination of long-standing and emerging issues on the human rights agenda.