A Swedish court has overturned a ruling to convict a 23-year-old man accused of illegal firearm possession based on evidence obtained from the EncroChat hack, raising questions about its reliability in Swedish courts.
The Svea Court of Appeal in Stockholm found “ambiguities” in the evidence from the EncroChat encrypted phone network presented by the prosecutor, but did not reject the material altogether.
Public defender Jacob Asp said: “The verdict clearly states that material obtained from the EncroChat hack has no legal value whatsoever. Future trials will have the same outcome.”
More than 700 phones in Sweden were tapped in the operation, leading to hundreds of investigations and high-profile court cases across the country, according to French court documents.
Investigators from France’s digital crime unit infiltrated the EncroChat encrypted phone network in April 2020, capturing 70 million messages.
The operation, supported by Europol, led to arrests in the UK, Holland, Germany, Sweden, France and other countries, of criminals involved in drug trafficking, money laundering and firearms offences.
Debate over EncroChat evidence
The mass hacking of the EncroChat encrypted phone network, which was used by organised criminals, has sparked a debate in Sweden on whether EncroChat messages should be used as evidence in a court of law.
Some lawyers argue that mass surveillance violates Swedish law.
But Sweden’s prosecutor general, Petra Lundh, wrote in an open letter on 29 April 2021 that there was already precedent to allow material obtained by the EnroChat hack to be used as evidence in Swedish courts. There was no need for the Supreme Court to make a decision on the matter, she said.
The 23-year-old, Abdulsattar Al-Nuaimi, was sentenced in February by Eskilstuna District Court to three years and nine months in prison, but was released on 23 April after a decision by the Svea Court of Appeal.
On 7 May, the court acquitted Al-Nuaimi after it found the evidence against him was “inconclusive”. The case against Al-Nuaimi was largely based on evidence obtained in the EncroChat hack by French and Dutch authorities last year.
Christian Dahlman, a professor at Lund University’s Department of Law, said the verdict by Svea Court of Appeal was in line with previous court rulings based on phone surveillance records.
“The defendant in this case was acquitted because the prosecution has not convinced the court exactly what happened,” he said. “As a defender, one could argue that the verdict emphasises that such evidence leaves room for reasonable doubt.”
Dahlman has called for the issue to be tried in the Supreme Court, but said it was very unlikely the prosecution would want that.
Jacob Asp, lawyer
“The prosecution absolutely does not want the issue to be tried by a higher court. It would be a nightmare for the state prosecution if the Supreme Court ruled EncroChat evidence as unlawful,” he said.
Under Swedish law, all evidence, even if it is unlawfully obtained, is admissible in Swedish courts, with the exception of material obtained under torture.
Swedish prosecutors have disclosed they do not know how the French Gendarmerie intercepted millions of messages from EncroChat phones.
“Due to the mutual trust between European countries, it is not Sweden’s role to question, or even ask, how the material came about,” the public prosecutor said in a statement on 22 April.
EncroChat evidence has ‘no legal value’
Public defender Asp said the court decision showed that EncroChat evidence did not hold up in Swedish courts.
“It is understandable that the Court of Appeal does not reject the evidence outright, but it’s clear from the verdict that EncroChat messages have no legal value. This is the most critical verdict so far and it simply shows the evidence doesn’t hold up in a court of law,” he said.
Asp said the verdict would have an impact on future court cases that make use of evidence from EncroChat hacks. “The Svea Court of Appeal has concluded that the issue must be tried at a higher court. Sweden does not allow phone tapping unless a court order has been issued. In my view, it’s pretty clear that material obtained from mass surveillance should be dismissed in a court of law,” he said.
“On the one hand, we have 200 criminal individuals who will be acquitted, and on the other hand, we have, in principle, the more important matter regarding integrity. We don’t allow mass surveillance in Sweden and this is what has happened,” said Asp.
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