Encrochats vara eller icke vara i svensk processrätt - En undersökning av de juridiska spörsmålen i samband med åberopande av Encrochat-bevisning i brottmål.

Detta är en Kandidat-uppsats från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: Abstract The distinct increase regarding use of encrypted communication within organised criminal networks in order to plan and conceal criminal activity eluded law enforcement authorities in Sweden as well as on the European continent for a long time. Therefore, for obvious reasons, it was considered a huge success when French authorities in close cooperation with Eurojust and Europol were able to penetrate and dismantle the encrypted phone network Encrochat during the spring and summer of 2020. The European judicial cooperation and the possibility to issue out European Investigation Orders, to obtain evidence from other member states within the EU, has thereafter enabled several convictions in Sweden based on the material acquired from Encrochat. The invocation of Encrochat-data and the value of the evidence obtained from the data has been open to debate both within court procedures and within the general debate. Heavy criticism, mainly from defense attorneys, has been directed against the absence of insight to and the vagueness surrounding the French operation which led to the decryption of Encrochat. The contingency regarding how the evidence from Encrochat is to be valued within the free evaluation of evidence, is still present as the Swedish Supreme Court is yet to rule on the admissibility and value of said evidence. In the light of current Swedish law regarding evidence, coercive measures and procedural rule of law the essay investigates and discusses essential problematic sides of evidence originating from Encrochat. The essay establishes that evidence from Encrochat calls for a cautious evidential evaluation from the court with respect to the vagueness surrounding the measures that enabled access to the data and the absence of insight to the French operation. Furthermore the essay establishes that a casual evidential evaluation without considering the problematic sides of the evidence must be avoided. Ultimately the essay draws the conclusion that cases, in which the evidence exclusively consists of data from Encrochat, should rarely lead to a conviction. Consequently, as a rule, some kind of supporting evidence is required which indicates that the defendant is guilty. Moreover, requisite investigation regarding the acquisition of evidence and regarding the individuals who took part in the encrochats should be presented from the prosecutor to provide the court with an adequate foundation for their evaluation of the evidence. Otherwise the right to a fair trial according to the European Convention on Human Rights is endangered and the procedure might be deficient relative to Swedish law. In connection with the conclusion, the essay discusses the potential influence that the criminal political debate has on the participants within the adjudication process regarding their view on evidence derived from Encrochat.

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