Published on 26 May 2026
SECOND SECTION
Applications nos. 7905/25 and 9417/25
Sefedin ISHA against Norway
and Bjorn EMMEN against Norway
lodged on 28 February 2025 and 14 March 2025 respectively
communicated on 6 May 2026
SUBJECT MATTER OF THE CASE
The applications concern the use, in the criminal proceedings against the applicants, of evidence consisting of decrypted messages exchanged via Sky ECC and/or EncroChat services, obtained by the Norwegian authorities from the French authorities.
Background
From 2018 onwards the French authorities investigated EncroChat, an encrypted mobile-phone telecommunications tool which operated as a closed network. The investigation culminated in the remote retrieval of EncroChat user data, including text messages, by the French authorities from 1 April to 2 June 2020 (for further details regarding the French investigation see A.L. and E.J. v. France (dec.), nos. 44715/20 and 47930/21, §§ 4‑34, 24 September 2024). In early 2020, Dutch and French law enforcement authorities, acting in cooperation, developed a technical capability to decrypt EncroChat communications in transit. The intelligence obtained demonstrated that EncroChat was being used in connection with serious and organised criminal activity across multiple jurisdictions, including Norway. In April 2020, the French authorities granted the Norwegian National Criminal Investigation Service (Kripos) access to material relating to Norway, and provided the capability to monitor such communications on a near real‑time basis.
Sky ECC constituted another encrypted communications service. Pursuant to a judicial order granted in 2019, the service’s principal servers, located in France, were secured for investigative purposes. In late 2020, a technical capability enabling the decryption of the data was successfully developed. Norwegian law enforcement authorities did not participate in the development or execution of this decryption process.
In the summer of 2021, Kripos received a substantial dataset from France of decrypted historical Sky ECC communications, relating to approximately 1,200 users and covering the period from 2019 to 2021.
Digital data obtained pursuant to the above methods, together with undercover investigations, raised suspicions of criminal activity involving several individuals.
Proceedings against Sefedin Isha (“the first applicant”) and related complaints
The investigation concerning the first applicant had begun in October 2020, and he was arrested shortly thereafter in Sweden. The charges against him were largely based on decrypted messages of user identities attributed to the first applicant exchanged via EncroChat and Sky ECC services (hereinafter “EncroChat and Sky ECC evidence”).
On 31 May 2024 the first applicant, together with four co‑accused, including the second applicant, was convicted by the High Court (Borgarting Lagmannsrett) and sentenced to twenty years’ imprisonment for drug‑related offences.
The High Court determined that the defence enjoyed access to the same material available to the prosecutor, namely that held by Kripos. It noted, however, that neither side had access to the underlying data, the methods of collecting evidence in question, any technical manuals, or the technicians responsible for obtaining the material. Despite these limitations, the High Court noted that it had found no indication that the material was unreliable. Its credibility was supported by an analysis from the Dutch Forensic Institute, comparisons with seized phones, and later confirmation through real‑time monitoring. Although messages were missing from dialogues, the High Court held that the overall context allowed EncroChat and Sky ECC evidence to be used without breaching Article 6 of the Convention.
On 15 November 2024 the Supreme Court’s Appeals Selection Committee refused the first applicant leave to appeal, noting that the High Court had carried out a concrete assessment of the impact of the absence of full disclosure of the evidentiary chain on the rights of the defence. It found that because the material had been collected pursuant to a French court order, only exceptional circumstances would justify Norwegian courts assessing compliance with French law, and that such circumstances were not present in this case.
The first applicant complains that the use in the criminal proceedings against him of EncroChat and Sky ECC evidence was in violation of Article 6 § 1 of the Convention. In particular, he submits that in the proceedings leading to his conviction based decisively on certain decrypted messages exchanged via EncroChat and Sky ECC, the principles of adversarial proceedings and equality of arms were not respected because (i) the defence had no insight into the chain of custody or the origin of the messages received as “packages” from the French authorities, (ii) the digital evidence in question was incoherent (many messages were missing) and (iii) in assessing the evidence, the High Court failed to address important issues and to exercise the requisite degree of caution, in that it, inter alia, inferred that the first applicant had stored 40 kg of amphetamine, notwithstanding that the messages relied upon did not identify the substance in question, and that certain messages were obtained only at a late stage of the proceedings.
Proceedings against Bjorn Emmen (“the second applicant”) and related complaints
The investigation concerning the second applicant began in October 2020. He had been arrested in the Netherlands in March 2022 and shortly thereafter extradited to Norway.
On 31 May 2024 the second applicant, together with four co‑accused, including the first applicant, was convicted by the High Court and sentenced to twelve years’ imprisonment for drug‑related offences, the conviction being largely based on the messages exchanged via EncroChat (hereinafter “EncroChat evidence”) obtained from the French authorities. As regards the use of EncroChat evidence the court relied on the same reasoning as with regard to the first applicant.
On 15 November 2024 the Supreme Court’s Appeals Selection Committee refused the second applicant leave to appeal finding that his appeal did not raise issues of importance beyond the case at hand.
The second applicant complains that the use of EncroChat evidence in the criminal proceedings against him was in violation of Article 6 § 1 of the Convention, arguing that the High Court based its assessment on speculation, incomplete evidence, and incorrect assumptions to his detriment. In particular, he submits that there had been no investigation targeting him during the period messages had been collected and no surveillance or corroborating evidence had linked him to the “Streamkiller” account which was attributed to him by the domestic courts. He furthermore submits that the High Court (i) failed to investigate exculpatory material, including communication logs of “Streamkiller”‘s other contacts and testimony from key individuals, (ii) despite knowing that many messages were missing, failed to exercise due caution in assessing the evidence, and (iii) did not provide adequate reasons on several important aspect of the case.
QUESTIONS TO THE PARTIES
Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention (compare Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, §§ 301‑308, 310‑313, 315‑317, 327 and 329, 26 September 2023)? The parties are requested to address, in particular, the following points:
a) Was the EncroChat and – as regards the first applicant also – Sky ECC evidence decisive for the outcome of the proceedings against the applicants?
b) What safeguards were available in domestic law to ensure the integrity and authenticity of the Sky ECC and/or EncroChat evidence obtained from the French authorities?
c) Were the applicants provided with a real and effective opportunity (i) to have knowledge of and comment on all digital evidence adduced by the prosecution (ii) to review all material evidence in the possession of the prosecution that was of potential relevance for the defence; and (iii) to challenge the authenticity and reliability of the digital evidence used against them and to oppose its use as required by the principles of equality of arms and adversarial proceedings?
d) In this context, did the applicants’ alleged inability to review the chain of custody or the origin of messages handed over by the French authorities put the defence at a disadvantage vis-à-vis the prosecution? If so, were the alleged difficulties caused to the defence sufficiently counterbalanced by the procedures followed by the authorities in Norway?
e) Having regard to the applicants’ complaints before the Court, did the domestic courts sufficiently assess the reliability of the digital evidence presented to them by the prosecution and provide adequate reasoning for their judgments? Did their judgments provide adequate reasons in response to any objections concerning the use of Sky ECC and/or EncroChat evidence, in particular objections relating to the reliability and coherence of that evidence, and for rejecting requests to obtain other evidence potentially relevant to the defence?
f) Was the defence required under the domestic law to explicitly request that the potentially exculpatory material be obtained and examined by the court? If so, what were the consequence of failing to make such an explicit request?
g) What were the relevant rules under Norwegian statutory law and the domestic court’s practice, if applicable, regulating the collection, examination and use of evidence, including electronic and digital evidence, obtained by foreign authorities and used as evidence in criminal proceedings in Norway?
h) Did the Norwegian authorities receive from the French authorities the complete communication datasets relating to the presumed applicants’ accounts, or only excerpts thereof?