On June 30, 2022, the Norwegian Supreme Court held that data collected by foreign authorities from an encrypted communication network was admissible as evidence in Norwegian courts. (Supreme Court Case HR-2022-1314-A (Decision).)
Background to the Decision
The case in question concerned data collected by French police from an encrypted source, EncroChat, during surveillance of a criminal network. The Norwegian defendants were subsequently prosecuted in Norway for the aggravated narcotics offense of possessing a “very substantial quantity” of narcotics (Penal Code § 232) and for perpetrating their criminal act “as part of the activities of an organized crime group” (§ 79c). (Decision ¶ 3.)
The issue in the case was “whether data decoded by foreign authorities from an encrypted communications network may be presented as evidence in a Norwegian criminal case.” (¶ 2.)
The Norwegian Borgarting Court of Appeals had deemed the use of EncroChat, a phone with special encrypted communication features that enables it to communicate only with other encrypted phones of the same type, as having been designed to evade standard telephone surveillance and to be “suitable for criminal communication.” (¶ 4.)
The Norwegian police received the information collected from EncroChat from French authorities after French and Dutch police had managed to hack the server in France that transmitted the communication. (¶ 5.) Subsequently, “the prosecution received consent in June 2020 from French authorities to use the material as evidence in criminal proceedings.” (¶ 9.)
While collecting the data was lawful in France, the Borgarting Court of Appeals determined that collecting such data would not have been possible in Norway. Nevertheless, because the data collection had not involved a circumvention of Norwegian law, the court held that the data was admissible as evidence. (¶ 13.)
Under Norwegian law, the parties are typically allowed to present the evidence they choose, and the courts cannot reject the presented evidence without legal grounds to do so. (¶ 19.) In previous court cases, Norwegian courts have found that foreign evidence is admissible, provided that its collection did not violate Norwegian values (grunnleggande norske verdiar). (¶¶ 20, 22.)
Test for Admissibility
The Supreme Court went on to establish a three-prong test for when foreign evidence is admissible in Norway. Specifically, the court stated:
If the collection [of evidence] could not have been made legally in Norway, three conditions must be fulfilled to use the investigative material obtained by foreign authorities in a Norwegian criminal case: (i) The sample must be obtained in accordance with the rules in force in the country in question, (ii) the defendant must have the right to access all the information obtained, and (iii) the collection [of evidence] must not have been carried out in a way that makes the use of the evidence contrary to basic Norwegian values. An evidence ban for material obtained by foreign authorities will in particular be relevant where the acquisition has been made by states whose criminal procedure is based on a different view of values than ours. (¶ 26.)
The Supreme Court went on to state that Norwegian authorities requesting foreign authorities to help them by using investigative powers that the Norwegian authorities themselves do not have — which the court labeled as “forum shopping” (kompetanse-shopping) — amounts to collecting material in violation of Norwegian values, and the collected material is thus not admissible as evidence in Norwegian courts. (¶ 29.) However, the court added that in cases where the Norwegian authorities do not initiate the collection process and the process is lawful in the country where it is carried out, only in exceptional cases will the material not be admissible in Norwegian courts. (¶ 30.)
Moreover, the Supreme Court agreed with the Borgarting Court of Appeals that when the collection of evidence has been deemed legal by a court in another Nordic country or a European Union member state, the Norwegian courts should not question the legality of the measure unless there are special circumstances. (¶ 37.) In the case at hand, the material had been collected using court orders obtained in Roubaix, France (¶ 36), and the Supreme Court determined that the material had been lawfully collected there (¶ 38).
The court then went on to test whether the data collection had violated Norwegian values, finding that when an encryption service has been proven to be chiefly used by criminals, persons using that encryption service may expect their communications to be monitored, and that in these cases, unlike cases of mass surveillance generally, collecting the data does not involve violating Norwegian values. (¶¶ 39–42.) In addition, the court found that France has not built its criminal and procedural system on a different set of values than Norway (¶ 43), and that because Norway allows for the collection of data in similar situations, that should also be taken into account when making the determination (¶ 44).
Accordingly, the court found that allowing the use of the data as evidence did not violate Norwegian values. (¶ 46.)
HoldingThe Supreme Court held that there was no basis in this case for excluding the data collected through EncroChat and the data should be part of the “free evaluation of evidence” (fri provføring) that is used in Norway, meaning it will be up to the courts to determine the value of the collected evidence. (¶ 47.)