Beitrag | Joint Defense Team

For four years now, we, lawyers from the Joint Defense Team, have been working on criminal cases revolving around data from the PGP service EncroChat and, later, others such as Sky ECC and ANOM.

Our Dutch colleague, Mr. Reisinger, has been representing a defendant since as early as January 2019; a defendant accused of involvement in the illegal trade of such phones in the “Oakmont” investigation. Initially, the suspicions were broad, but ultimately only “money laundering” remained (the same goes for the later, overarching “Lemont” investigation into the EncroChat company itself). For both cases, 2024 was a significant year, particularly the month of November.

In the Oakmont case, all defendants were acquitted of money laundering charges due to the lack of proof for the claim that the phones had been bought with money which was (indirectly) resulting from criminal activities (LINK). In short, the Rotterdam court accepted the simple defense’s argument: It cannot be established that all EncroChat users were criminals - even after substantial investigation, as shown in the Oakmont case.

This decision could have far-reaching consequences. And, in our view, it should have!

Because this decision aligns with what we, as defense lawyers, have always argued. With this acquittal, a major claim by law enforcement and the Public Prosecution Service about EncroChat (and other PGP services) appears to be a thing of the past: “we already knew they were all criminals and that’s why we were allowed to intercept/hack them.” This is far too simplistic. Such investigative methods are not proportional (if they are based solely on the use of advanced encryption) and are not “subsidiary” (because less intrusive, individualized investigative methods were possible).

The actions of French, Dutch, and other collaborating European Union authorities have thus resulted in the unlawful acquisition and processing of personal data. Yet, despite numerous questions from various lawyers seeking clarification, transparency remains lacking.

That brings us to the other case, the investigation “Lemont”. In this case it even emerged that this transparency seems to have been denied under false pretenses. Allegedly, a state secret was invoked by the Netherlands to withhold information, while France appears to hold a (very) different view on the matter (LINK).

Similar issues are at play with Sky ECC, and the situation surrounding ANOM is even more concerning, as the service was allegedly “run” by government authorities.

We are therefore looking ahead to 2025, hoping that significant next steps will follow. First of all, we are thinking of the Lemont investigation itself, but also of the proceedings in France concerning EncroChat and Sky ECC, as well as the cases before the Court of Justice of the European Union in Luxembourg. In the meantime, cases are also underway in Strasbourg at the European Court of Human Rights. These procedures typically take longer, and outcomes are unlikely before 2025. However, the Strasbourg rulings in recent years have already made it clear that operations like those against EncroChat and Sky ECC cannot easily be justified! Criminal defense lawyers should at least be able to defend their clients in an effective manner, for example by doing (their own) investigation.