A police operation to crack the EncroChat encrypted phone network which led to thousands of arrests worldwide is a judicial and political scandal, Spanish lawyers have claimed.
Guillermo Rocafort, speaking at a conference on EncroChat organised by the Madrid Bar Association, said a French Police operation to hack the encrypted phone network was a fishing exercise and in breach of European Law.
“The European Union is based on a rule of law that guarantees the fundamental right of communication secrecy, criminal proceedings cannot be prospective, or fishing [exercises],” he said.
French and Dutch police cooperated in a hacking operation against the EncroChat network, with the support of Europol and Eurojust, in 2020, which has led to arrests of organised crime groups and drugs sellers around the world, including the UK.
Rocafort told the conference of “the legal problems of the Encrochat hack”, organised by the Banking Law Section of the Madrid Bar Association (ICAM), that the operation to break the encrypted phone network was at odds with European law.
He said the EncroChat operation was akin to police obtaining bulk messages from encrypted messaging services, such as WhatsApp or Telegram, or hacking into a Spanish phone operator.
“It’s as if you’re hacking, for example, the [Spanish phone operator] Movistar system, the WhatsApp system, the Telegram system,” said Rocafort.
The lawyer said two Spanish citizens detained by the French justice system had sold EncroChat phones legally in Spain, where the sale of encrypted phones is not a criminal offence.
He said that in the UK, the justice system had also ruled out pursuing the sellers of EncroChat phones, “because what is done with this phone is not the seller’s question”.
Europe’s top courts have yet to rule on the legality of the novel hacking operation.
The Court of Justice of the European Union is due to answer preliminary questions made by Berlin’s Regional Court on whether the hacking of EncroChat is in conflict with the secrecy of communications.
The European Court of Human Rights is also expected to make a ruling on whether the hacking of EncroChat has violated Article 8 of the European Convention on Human Rights, on the right to respect for private and family life, following a case filed by claimants in the UK.
Francisco Javier Borrego, a former judge of the Supreme Court and the European Court of Human Rights, said that Spanish people had been deprived of their liberty because of EncroChat hacking.
Borrego said Spain has been condemned twice by the European Court of Human Rights for not respecting the secrecy of communications in two criminal proceedings.
Lawyer Luis de las Heras said the hacking of EncroChat was analogous to the French military accessing post offices in Spain to intercept all letters and postal communications sent from France by French citizens.
De las Heras claimed the EncroChat operation represents a “new criminal Middle Ages” and “a return to the Machiavellian expression that the end justifies the means”.
Lawyers María Begoña Garcés García and Alberto López Orive represent Spanish citizens prosecuted in France for distributing EncroChat phones.
Garcés said the French court in Lille had refused to give him access to a CD containing hacked EncroChat messages related to the case, claiming “state secrecy”.
“All I ask from the French judicial system is to allow me access to the evidence,” he said.
Alberto López said the Spanish justice system has given legitimacy to the evidence obtained through the hacking of EncroChat by arguing it has a “documentary value”.
“They say it is documentary evidence because these are conversations that have taken place in the past; that is, because they are not produced in real time,” the lawyer said.
In the UK, the Investigatory Powers Tribunal found last week that the National Crime Agency had lawfully obtained warrants to access EncroChat messages obtained through a hacking operation by the French Gendarmerie and the Dutch police.
But it is has referred questions about the legal admissibility of EncroChat evidence in UK criminal trials back to the crown courts.
The IPT said it would be necessary to determine whether the French obtained communications in the course of their transmission – which is inadmissible in the UK courts – or by hacking the phone handsets, which is legally admissible.