The endless battle of drug traffickers to avoid being convicted for their decrypted messages

Encrochat, an encrypted messaging system that organized crime used with absolute impunity, was the great asset of the drug world. But now it has become one of their worst nightmares, which they cannot put an end to. Since France managed to infiltrate a software Trojan on that platform and extract millions of communications – which police across Europe have since analyzed to build their investigations – the traffickers’ lawyers launched a legal battle to try to ensure that they could not be used as evidence in judicial proceedings. But, after years of fighting, this offensive has received two setbacks in recent weeks: the National Court has issued its first ruling that “endorses” the use of this evidence; and the Court of Justice of the European Union (CJEU), where the gangs placed a good part of their hopes, issued another ruling that also gives them the green light in a generic way, although it establishes some conditions – “remediable”, in the opinion of tax sources. Spanish—

Both resolutions have not gone unnoticed. Not even between the security forces and the Anti-Drug Prosecutor’s Office, who show satisfaction with two rulings that allow them to continue working with evidence that, in their opinion, represents the greatest milestone in decades of the fight against drug trafficking. Nor among the defenses of the accused: some of whom, consulted by EL PAÍS, believe that these two sentences include technical conclusions that they will be able to use in their favor in instances yet to be explored – such as the Constitutional Court -, and in other cases still to be explored. solve. That is to say, they do not see that all the doors have been closed to them.

“Each case is different, but people tend to extrapolate. There is a game ahead,” summarizes Ricardo Álvarez-Ossorio, one of the lawyers who has initiated proceedings against Encrochat, who sees cracks in the collaboration system used to request the transfer of data from France, as well as in the interventions by the country. of communications from suspects who were on Spanish soil. Ultimately, neither side gives up. All this, when the public debate has once again focused its attention on the fight against drug trafficking after the tragedy in Barbate (Cádiz), where two civil guards died on February 9 after being hit by a drug boat; and after the police reinforcement in Marbella (Málaga), one of the epicenters of organized crime in the country.

This story began in 2017, when it was suspected that drug traffickers had found a means of communicating beyond all control. France looked at Encrochat, which had its servers in that country and which presented itself as a platform that guaranteed the anonymity and non-traceability of its clients. So, in 2020, he activated an operation, which had judicial endorsement and whose details were declared a military secret, to intervene. According to Europol, 115 million “criminal conversations” were extracted from 60,000 different users.

But the significance of this case multiplied when investigators, as they analyzed the intercepted information, began to share it with other countries, which opened their own investigations. It was a huge source of evidence to build new cases. The defenses of the drug traffickers began the battle against what they considered to be a massive and indiscriminate intervention in communications. “The State cannot prosecute crime at all costs,” insists criminal lawyer Luis de las Heras after the rulings of the Court and the CJEU.

The ruling of the CJEU was known on April 30. The drug world was eagerly awaiting this ruling, but the court limited itself to “clarifying the conditions for the transmission and use of evidence in criminal matters with a cross-border dimension.” In a generic way, it does not invalidate the use of Encrochat as evidence and gives scope to national judges to use it, although it establishes a series of limitations that will have to be responded to in each case – such as that the evidence could not be used if the affected person cannot challenge it, on which Spanish tax sources believe that there will be no problems here. The National Court issued another ruling, known on May 22, which “endorsed” the use of those communications intercepted by France. In other previous orders, this court had already indicated that it was admitted, based on the agreement between both countries of “mutual recognition” of their legalities.

Rosa Ana Morán, head of the Special Anti-Drug Prosecutor’s Office in Spain, is satisfied after the two sentences, although she admits that there are still technical aspects to iron out. “But they have endorsed its use. Now, the evidence will be presented and analyzed in each case,” she explains. Currently, the public ministry has 46 investigations open with data from Encrochat. Morán insists on the relevance of this evidence and its great dimension: “In England there are already more than 1,000 convicted. In Belgium, more than 400.”

The ruling of the National Court has also been received with satisfaction by the security forces, although some commanders in the fight against drug trafficking still show their “caution”, waiting for new rulings in the same sense. “Everything indicates for now that the evidence obtained will be accepted by the courts, but we have to wait for more sentences and, above all, for the Supreme Court to rule in the future,” says a police official.

National Police, Civil Guard and Customs Surveillance – which long ago created groups of agents dedicated exclusively to analyzing these conversations – have a lot at stake in this judicial battle. Many of the large anti-drug trafficking operations carried out in recent years—not only due to the volume of intercepted shipments, but also due to the relevance of the dismantled criminal structures—have been possible thanks precisely to the information obtained on this type of platforms. : Encrochat is joined by others like Sky and Anom, since the drug traffickers jump from one to another as they intervene. Rosa Ana Morán specifies that, in international forums, there is already talk of the existence of more than 50 similar encrypted systems.

This is the case of Operation MVRand, which led to the arrest of Fikri Amellah, an alleged drug trafficker who, when he was arrested in 2021, was in the living room of his house in Barcelona surrounded by five encrypted mobile phones with which he was allegedly coordinating. various drug entry operations into Spain. Amellah, who is considered by the security forces to be one of the main kingpins in southern Europe, has been on provisional release for a few weeks after spending two years in preventive detention and posting bail of 400,000 euros.

An international debate

The recent ruling by the National Court, known two weeks ago, is a clear example of the legal efforts that the alleged drug traffickers are going to deploy to annul all evidence related to the decrypted platforms. One of those convicted in that ruling, Marianne Christine Maria Toren, used during the oral hearing statements from the justices of Italy, the Netherlands, Finland and Serbia that, in the opinion of her defense, supported her request to remove her recovered conversations from the case. by Encrochat. Her attempt reveals the broad international debate that this issue generates, although it was rejected.

In that ruling, the magistrates stressed that the National Court itself had already endorsed the use of the evidence obtained from these platforms in several cases and that, there
is even a ruling from January 18 of the Provincial Court of Cádiz that concludes that the use This information does not constitute a violation of rights. Along these lines, they recalled other resolutions from courts in Denmark, France, Norway, Germany and France that had supported the validity of this information as evidence. For this reason, the National Court sentenced Marianne Christine Maria Toren to 11 years in prison after considering it proven that she was hiding in Encrochat under the alias of Mysticlub, who spoke openly about alleged movements of money and stashes.

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