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OCR
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 investigation teams contributed to dismantling a network of child-abuse photographers." In my opinion, these methods are in harmony with the “Grba test” regarding 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-againstonline-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-photographersdismantled; 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-innetherlands. + 243 +
