EncroChat at the European Court of Human Rights (ECtHR) - Decision Deferred, Opportunity Missed?!

On October 17, 2024, the ECtHR rejected complaints from two British nationals regarding French authorities' surveillance of EncroChat devices. The Court deemed the complaints inadmissible because the claimants had not exhausted legal remedies in France. However, it emphasized that individuals accused of using EncroChat devices must have access to legal review of surveillance orders in France.

What Was the Complaint About?

The claimants argued that French surveillance measures violated Article 8 of the European Convention on Human Rights (ECtHR), citing a lack of effective legal remedies in France. They referenced precedents such as Contrada v. Italy (No. 4) and Wieder and Guarnieri v. the United Kingdom, claiming the measures infringed on their right to privacy.

France's Defense

France asserted that legal remedies were available but acknowledged that practical limitations—such as the large number of international affected parties—might hinder access for non-residents. It suggested that foreign nationals could seek recourse in their home countries.

What Did the ECtHR Decide regarding EncroChat?

The ECtHR confirmed French jurisdiction over the matter since the surveillance was conducted by French authorities. The Court recognized the claimants’ "victim status," even though they did not admit to using EncroChat devices. Nevertheless, it ruled that the complainants should have pursued legal challenges within France, as French law provides a mechanism for contesting such surveillance.

Implications for Practice

Legal teams across Europe, including France, Belgium, and Italy, have filed complaints for individuals affected by EncroChat and similar systems. French courts have largely dismissed these cases, and further appeals are pending before the Cour de Cassation, France's highest court. If these appeals fail, it could confirm a breach of Article 8 rights.

Why Is This Decision Frustrating?

Critics argue the ECtHR avoided addressing substantive issues by focusing on procedural formalities. This forces claimants into costly and lengthy litigation, often with little chance of success, to eventually confirm a human rights violation. The decision underscores the challenges of safeguarding personal freedoms amid expansive state surveillance practices.