A complaint has been filed with the European Court of Justice against the actions of Europol and Eurojust. According to Dutch lawyer Justus Reisinger, these organizations have harmed a client by processing and using hacked chats from Sky ECC in violation of European rules and European legislation.
By @Wim van de Pol
Europol and Eurojust are agencies of the European Union. Between December 2019 and mid-2021, they coordinated a hack by police services in Belgium, France and the Netherlands of the servers and messages of the encryption service Sky ECC. The countries had set up a special joint investigation team for this purpose.
Not tested
Police specialists hacked the servers of Sky ECC in the French town of Roubaix. Police then captured all readable chats from all Sky users in the world in the first half of 2021. This led to a flood of lawsuits against serious criminals. Until now, courts in the Netherlands have assumed that the realization of the hack and the reliability of the data do not need to be tested. French judicial control is sufficient.
‘Illegal and void’
The Court of Justice hears cases where European Union law may have been violated. Reisinger is now asking the Court of Justice in Luxembourg to declare the actions of Europol and Eurojust in the creation of that team, the execution of the operation and the processing and use of Sky ECC’s cracked chats ‘illegal and null and void’.
Arguments
Reisinger puts forward four arguments for the complaint.
According to the lawyer, by hacking all Sky users and reading all their messages, the lawyer violated a series of European laws, rules and rulings of the Court of Justice and the European Court of Human Rights. Moreover, the usefulness of evidence from the Sky ECC operation could not be tested by the court. This puts the right to a fair criminal trial at risk, according to Reisinger.
Furthermore, according to him, there was no proper security in the processing of the Sky ECC data as required by European laws. Finally, his client has been prosecuted in the same case in both Serbia and the Netherlands, due to apparent lack of coordination by Eurojust.
For the first time
Complaints against the actions of Europol and Eurojust are different from initiating criminal proceedings with the European Court of Justice or the European Court of Human Rights.
It is the first time that such a complaint has been filed about the actions taken during hacks on the encryption services.
Why is this different from proceedings in a criminal case?
Lawyer Reisinger:
A procedure such as this is not about whether a suspect has committed a criminal offense, but about whether European Union authorities have complied with European Union law. In this case it concerns the Europol and Eurojust authorities. It is now up to the Court of Justice to determine whether they acted correctly.
What could be the consequences if the Court declares the conduct of Europol and Eurojust unlawful and void?
Lawyer Reisinger:
In this specific procedure, this could mean that compensation is awarded. At the same time, however, it is also clear what the European Court of Justice thinks about the protection of fundamental human rights, such as the right to an effective defense and the right to the protection of privacy and personal data, with regard to the hacked PGP communications. Such a statement could of course also gain significance in the various individual criminal cases that take place at national level in many European countries.
When can a ruling be expected?
Lawyer Reisinger:
That’s hard to say. Europol will first have the chance to respond, so that will certainly take months and I expect it after the summer anyway.
Berlin case
Reisinger has also filed a case against Europol and Eurojust regarding EncroChat, just like the one about Sky ECC.
In another case at the Court of Justice, arising from a criminal case in Berlin, a judgment will be delivered on April 30. The Court will also rule on EncroChat. See about this:
Which cases regarding the use of encryption services are currently before European judges?
