(CN) — German prosecutors should be allowed to use evidence gathered by French authorities who hacked into an encrypted telephone system widely used by criminals, a European Union court adviser determined Thursday.
Tamara Ćapeta, an advocate general at the European Court of Justice, dismissed a Berlin court's findings that the evidence should not be transferred to German prosecutors because it may have been collected unlawfully.
Her non-binding legal opinion for the EU's high court comes amid legal fights in several European countries stemming from France's hacking of EncroChat, an encrypted phone service run by an underground company and dubbed the “WhatsApp for criminals.”
In June, the EU's police agency Europol announced that the infiltration of EncroChat in 2020 had led to more than 6,500 arrests and $980 million in seized assets, including 100 tons of cocaine, 30 million pills of “chemical drugs,” nearly 1,000 vehicles, hundreds of properties and dozens of boats and airplanes.
The EncroChat network had around 60,000 users when it shut down abruptly in June 2020. Before it closed, French police said they had been intercepting users' communications for months.
EncroChat devices sold for about $1,690 and functioned as modified mobile phones with the camera, global positioning system and USB port removed. They ran two operating systems side-by-side — one that was typical and the other enabled with encrypted messaging and voice calls. Users also paid a subscription fee.
French police began investigating the phones after they were linked to organized crime groups. In January 2020, a French judge authorized the installation of an interception tool on a server EncroChat used in the French city of Roubaix.
After infiltrating the network, police agencies in several European countries — including Germany, Great Britain, France, the Netherlands, Sweden, Italy, Spain and Belgium — made numerous high-profile arrests, according to a briefing paper for the European Parliament.
Defense lawyers are challenging the methods and court orders used to hack EncroChat; accusing authorities of breaking cross-border evidence-sharing rules; arguing evidence is being withheld from defendants; and charging that their clients' right to privacy was violated.
European policing agencies and prosecutors say French investigators and courts carried out the hacking legally.
EncroChat cases are wending their way through national courts and have reached the European Court of Justice and the European Court of Human Rights.
In July 2021, German prosecutors suffered a setback after the Berlin Regional Court ruled that EncroChat evidence was inadmissible because it was unlawfully obtained. The Berlin ruling came in the case of a suspect accused of drug trafficking.
An appellate court for the Berlin region reversed that ruling, prompting the lower court to turn to the European Court of Justice in Luxembourg for a ruling.
Ćapeta's opinion on Thursday was delivered in that case from Berlin. Advocates general provide non-binding legal guidance to the Court of Justice's judges. The court's rulings most often end up in line with the opinions provided by the advocates general.
German courts are bound by the “principle of mutual recognition” that “underpins cooperation in criminal matters in the European Union,” Ćapeta said. Under this principle, German courts cannot doubt the legality of the surveillance because French courts so far have deemed it was done properly.
“Unless the underlying measures are found to be illegal in judicial proceedings in France, which the person concerned must be able to initiate, the issuing authority is not in a position to question their legality,” she said.
She argued that “although criminal law systems of Member States differ significantly, it does not mean that one system protects the fundamental rights of suspects and accused persons while another breaches them.”
“Rather, EU judicial cooperation in criminal matters relies on the assumption that all Member States respect fundamental rights,” she added. “While that assumption may be overturned in a particular case before the competent court, that cannot call into question the principle of mutual trust” underlying cross-border requests for evidence.
She also dismissed the defendant's argument that German prosecutors had “turned to their French counterparts to obtain evidence contrary to German law.”
“The circumstances of the present case do not lead to the suspicion of an abuse of cross-border investigation procedures,” she said.
French investigators gathered the evidence as part of their own criminal investigation, she argued, not on behalf of German investigators.
“Thus, even if it were true that a German judge would not authorize such an interception if it were to be undertaken in Germany, the French authorities have undertaken such measures in conformity with French law and with the authorization of a competent French court,” she wrote.
Courthouse News reporter Cain Burdeau is based in the European Union.
Follow @cainburdeau
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