The police operation to break into the EncroChat encrypted telephone network, which has led to thousands of arrests around the world, is a judicial and political scandal, Spanish lawyers have said.
Guillermo Rocafort, speaking at a conference on EncroChat is organized by the Madrid Bar Associationstated that the operation of the French police to break into the encrypted telephone network was a ruse and a violation of European law.
“The European Union is based on the rule of law, which guarantees the fundamental right to privacy of communications, criminal proceedings cannot be [exercises],” He said.
Police in France and the Netherlands jointly hacked the EncroChat network with the support of Europol and Eurojust in 2020, which led to the arrests of organized crime groups and drug dealers around the world, including the UK.
Rocafort said at a conference on “legal challenges of hacking Encrochat” organized by the Banking Law Division of the Madrid Bar Association (ICAM) that the operation to hack into an encrypted telephone network is against European law.
He said the EncroChat operation is akin to police receiving bulk messages from encrypted messaging services like WhatsApp or Telegram, or hacking into a Spanish phone carrier.
“It’s as if you were hacking, for example, [Spanish phone operator] Movistar system, WhatsApp system, Telegram system,” said Rocafort.
Legal sale
The lawyer said that two Spanish citizens detained by the French justice system were legally selling EncroChat phones in Spain, where selling encrypted phones is not a criminal offence.
He said that in the UK the justice system has also ruled out prosecuting sellers of EncroChat phones “because what is done with this phone is not the seller’s business.”
Europe’s highest courts have yet to rule on the legality of the new hacker operation.
V The Court of Justice of the European Union must answer preliminary questions from the Berlin District Court as to whether the EncroChat hack violates message privacy.
The European Court of Human Rights is also expected to rule on whether the EncroChat hack violated Article 8 of the European Convention on Human Rights, concerning the right to respect for private and family life, following a lawsuit filed by the plaintiffs in the UK.
Francisco Javier Borrego, a former Supreme Court and European Court of Human Rights judge, said Spaniards were imprisoned because of the EncroChat hack.
convicted twice
Borrego said that Spain had been convicted twice by the European Court of Human Rights for failing to respect the secrecy of communications in two criminal trials.
Lawyer Luis de las Heras said the EncroChat hack was similar to the French military’s access to post offices in Spain to intercept all letters and mail sent from France by French citizens.
De las Heras stated that the EncroChat operation represented “a new criminal Middle Ages” and “a return to the Machiavellian expression that the end justifies the means”.
Attorneys Maria Begoña Garcés García and Alberto López Orive represent Spanish citizens prosecuted in France for distributing EncroChat phones.
Garces said a French court in Lille denied him access to a CD containing hacked EncroChat messages related to the case, saying it was a “state secret”.
“All I ask of the French judiciary is to grant me access to evidence,” he said.
Alberto López said the Spanish justice system has given legitimacy to the evidence obtained from the EncroChat hack, claiming it has “documentary value.”
“They say that this is documentary evidence because these are conversations that have taken place in the past; this is because they are not produced in real time,” the lawyer said.
In the UK, the Tribunal for Investigative Powers found last week that the National Crime Agency had legally obtained a warrant to access EncroChat messages obtained from a hacking operation by the French gendarmerie and Dutch police.
But he has taken questions about the legal admissibility of EncroChat’s evidence in UK criminal trials back to the crown courts.
The IPT said it needed to determine whether the French messages were received in transit, which is not acceptable in British courts, or by hacking telephone handsets, which is legally acceptable.