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COVERT ONLINE ENTRAPMENT IN TRANSNATIONAL CRIMINAL CASES
methods were used or even the operation of dark web servers were taken over by
the authorities in order to infiltrate transnational criminal circles and to detect
offenders behind child porn transactions. Europol regularly reports that joint in¬
vestigation teams contributed to dismantling a network of child-abuse photogra¬
phers." In my opinion, these methods are in harmony with the “Grba test” regard¬
ing multiple illicit transactions by state authorities. I am however not convinced
that the Preteen Sex Directory Case under discussion would comply with this test.
The directory was not specifically targeted against individuals that were already
under suspicion of child porn transactions, but it made possible the discovery of
single and isolated porn users who did not necessarily engage in any other actions.
That was the case of the Hungarian defendant. The operation of the undercover file
sharing server enabled the entrapment of an entirely random circle of porn users,
and these multiple illicit transactions might have improperly enlarged the scope or
scale of the crime. This might be against the standard set out in the Grba judgment.
The special position of secret data gathering
In the case discussed, the evidence used by the prosecution in Hungary had been
obtained by the Italian Police’s covertly operating the trap server. Since secret data
gathering is a very particular action of a state, strongly attached to sovereignty, and
which action represents a very intense intrusion into the privacy rights of those
concerned, covert investigation methods will always have a special position in the
matrix of mutual legal assistance in the European Union. This special situation is
clearly reflected also in the EIO Directive. Art. 29 par. 3 and Art. 30 par. 5 extend
the generally applicable grounds for non-recognition or non-execution to those,
in which the certain investigative measure would have not been authorized in a
similar domestic case. Consequently, if a member state is not allowed to act on
its own in its domestic cases, the execution of the investigative measure for the
interest of another member state can be refused. Although there is no direct
connection between the EIO and the admissibility of evidence, it is also clear that
15 Of many examples, see Europol, Joint Action in 22 European Countries against Online Child
Sexual Abuse Material in the Internet, Europol Press Release (16 December 2011), https://
www.europol.europa.eu/newsroom/news/joint-action-in-22-european-countries-against¬
online-child-sexual-abuse-material-in-internet; Europol, International Network of Child
Abuse Photographers Dismantle, Europol News Article (08 September 2014), https://www.
europol.europa.eu/newsroom/news/international-network-of-child-abuse-photographers¬
dismantled; Europol, Dark Web Child Abuse: Administrator of Darkscandals Arrested in
The Netherlands, Europol Press Release (12 March 2020), https://www.europol.europa.
eu/newsroom/news/dark-web-child-abuse-administrator-of-darkscandals-arrested-in¬
netherlands.
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