It really bothers me,” says the 52-year-old drug trafficking suspect J. to the Leeuwarden court. He’s talking about the ankle bracelet he’s been wearing for six months. “I’m ashamed of it and don’t go to the gym anymore.”
J. is one of the prime suspects in the Shifter criminal investigation, which was launched on the basis of intercepted Encrochat and Sky messages. Both encrypted communication services – popular among criminals – were ‘cracked’ in recent years with the help of the Dutch police and provided the judiciary with a gold mine of investigative information. The messages exchanged by the thousands of users led to a laundry list of criminal investigations. Shifter is one of them.
A year ago, J. and four co-defendants were arrested on the basis of chat messages for trading in, among other things, two kilos crystal meth, more than four kilos of weed and liters of amphetamine oil. The drugs themselves were never found. Because Shifter is a modest drug case by Dutch standards, J. is no longer in custody and he told Monday – with the consent of the Public Prosecution Service – that he would also like to see his ankle bracelet removed.
Yet there is something special about J.’s case. Shifter is the first to be used for a new possibility in criminal cases: the submission of preliminary questions to the Supreme Court. Since October 1, it is possible for courts (and courts of appeal) to ask the highest court for an explanation about legal rules that the Supreme Court has never expressed.
Instead of courts throughout the Netherlands considering the interpretation of that rule themselves – with the risk that the Supreme Court will dismiss that explanation years later after an appeal and cassation procedure – the Supreme Court can now be asked directly via a shortcut how the fork is legally in the stem.
Victory for justice
If one topic lends itself well to these kinds of preliminary questions, lawyers say, it is how to deal with the millions of messages collected in recent years in international police operations against cryptocommunication providers such as Encrochat and Sky. “Your court’s intention to refer questions for a preliminary ruling has been warmly welcomed by the legal profession,” J.’s lawyer Justus Reisinger said on Monday. He recalled that since the messaging services hacks, “it hasn’t been an easy time to be a lawyer.”
Also read this article: Hacking and watching live in crypto telephones is allowed, the judge finds
The messages play a leading role in countless criminal cases: from relatively small cases such as that of J. to mega cases such as that of Piet Costa, who was sentenced earlier this year largely on the basis of chat messages to fifteen years in prison for large-scale cocaine trafficking and the construction of a ‘torture container’.
Nevertheless, Dutch lawyers who want to challenge the lawfulness of the use of the chat messages, or who want to know more about the reliability of the information collected, have received little information about the state of affairs at the Public Prosecution Service in the past two years. And they were unsuccessful in court with their legal objections.
“Judges almost unanimously do not agree with the objections raised by lawyers,” notes Jan-Jaap Oerlemans, professor by special appointment of intelligence and law at Utrecht University. He made an inventory of almost five hundred judgments of Dutch judges in criminal cases where messages from crypto communication services played a role and wrote with a fellow professor. a scientific article about with a rhetorical question as the title: The EncroChat case law: disappointment for lawyers, victory for justice?.
An important explanation for this ‘disappointment’ lies in the so-called interstate principle of trust. The High Tech Crime Team of the Dutch police played a leading role in both the Encrochat hack and the Sky operation. But because the hacking operations were conducted in France in both cases, legal responsibility for the operations rests in France. Due to the principle of trust, according to courts so far, the Dutch court must therefore assume that the interception of the data in France has taken place correctly and on the basis of the law. It is therefore not up to the Dutch court to assess exactly how a hacking operation was set up and whether it was lawful.
Also read this article: Unique EncroChat hack leads to many difficult legal issues
Major concerns
Because they believe that the rights of their clients are being violated so structurally, 133 criminal lawyers sent a letter to the Minister of Justice, the House of Representatives, the Council for the Judiciary and the Public Prosecution Service this weekend. In the letter they express ‘great concern about the criminal justice system in the Netherlands’. They emphasize the importance of new, advanced methods for combating serious crime, but then there must be transparency about the actual course of the investigation, so that the court can check whether the evidence is lawful and reliable.
According to the lawyers, this transparency is completely lacking and the right to a fair trial is therefore at stake. Referring to Italy and France – where judges in individual criminal cases are critical of the state of affairs surrounding Encrochat and Sky hack operations and want to know everything about them in order to use the messages as evidence in convictions – the lawyers urge, among other things, “critical investigation” by judges in criminal cases based on hacked messages.
For lawyer Reisinger, one of the initiators of the fire letter, asking preliminary questions by the Leeuwarden District Court is an important first step in that critical investigation. The lawyer looks pleased when the chairman says that the court will indeed, by December at the latest, submit preliminary questions to the Supreme Court about the interpretation of the principle of confidentiality.
The answer will have to wait a while. The Supreme Court has five months to respond. Client J. can at least go to the gym again during that period, according to the words of the judge. “The ankle bracelet can be disconnected from Wednesday next.”
A version of this article also appeared in the newspaper of October 25, 2022