BRUSSELS — Call it the mother of modern drug trials.
The Belgian court on Monday started hearing cases of more than 120 people charged with drug and arms trafficking, extortion, acts of torture and attempted murder. It’s one of the country’s biggest trials ever — not just due to its scale but also because it’ll test investigators’ daredevilish methods of hacking encrypted communications services and siphoning off droves of data that were then used as evidence to charge drug networks spanning the European continent.
“This is a trial that will make history,” said Eric Van Duyse, spokesperson of the Belgian prosecutor’s office. Law enforcement’s operations to compromise and unlock datasets of two secure communications platforms, Sky ECC and EncroChat, were “a revolution,” Van Duyse said.
Three hearings per week will take place in former NATO headquarters premises, which have been turned into the brand new ‘Justitia’ courtroom to host big trials like those related to the Brussels terror attacks. Belgian judges in the Sky ECC trial are expected to deliver a ruling by next spring.
On the one hand, investigators expect a major triumph of the state-of-the-art investigative methods used to crack Sky ECC and EncroChat and bust the drug gangs terrorizing the Continent. On the other, defense lawyers are expected to challenge the police hacks, arguing the data underpinning the cases was obtained illegally.
The trial was initially scheduled to start in November but got pushed back when defense attorneys asked to disqualify judges involved in the case, local media reported.
Already, hundreds of court cases using data from Encrochat and Sky ECC — the two platforms that were compromised by law enforcement to gather data — have led to over 6,500 arrests across Europe and the world, Europol said.
The Belgian trial strikes at the heart of Europe’s spiraling drug problem. The country, which hosts the European Union’s main institutions, has become a major hub for cocaine and drug trafficking in Europe. Its busy harbor of Antwerp, the second-largest in Europe, in recent years saw an increase of violence of drug gangs and even a plot to kidnap the former justice minister Vincent Van Quickenborne.
Police’s unprecedented data heist
The Sky ECC bust started with a hack.
In July 2020, French and Dutch authorities unveiled how they had been able to obtain more than 100 million messages from EncroChat, a “cryptophone” company selling encrypted communication services and devices that were used by criminal networks, many of which were involved in drug trafficking and organized crime.
Less than a year later the French, Belgian and Dutch authorities added an even larger scalp to their efforts to crack open encrypted comms when they disclosed that a similar service, Sky ECC, had been infiltrated. Police have been able to monitor the information flow of approximately 70,000 users from that operation and, with the help of Europe’s law enforcement agency Europol, started a gargantuan effort of decrypting the data and opening investigations.
Both operations helped to prevent violent attacks, attempted murders, corruption and large-scale drug transports, as well as obtain large-scale information on organised crime, Europol said at the time.
It was a wake-up call for authorities, who were themselves surprised of uncovering this level of drug-related violence and powerful organizations up to the highest levels.
But the operations were largely untested, too, and legal questions now surround the investigations and charges brought by prosecutors.
Defense practitioners claim the evidence from the Sky ECC criminal proceedings was illegally obtained. They are voicing concerns over privacy infringements and the right to a fair trial. They argue that law enforcement services set a dangerous precedent when they infiltrated an encrypted app of private communications and then shared the result with several law enforcement forces across the bloc.
“These are fundamental legal questions that need to be settled once and for all if we are to know what kind of system we’re operating under, because there are national and supranational rules on the matter,” said Denis Bosquet, one of the defense lawyers.
A Dutch court previously acknowledged a “potential large infringement on privacy” but added that the fact that the data came from a group of users who were suspected of being predominantly “organized crime participants,” making the privacy infringement legally defendable.
Other European courts in Norway and Germany ruled along the same line and a pending ruling from two British detainees to the European Court of Human Rights is expected to settle the quarrel.
The other challenge prosecutors face relates to European cooperation. When using criminal evidence gathered in one jurisdiction but used another, investigators need to fulfill a lot of legal requirements. In 2022, a Berlin court threw out a case against a defendant who was being prosecuted for drug trafficking because the case was based on data from the French EncroChat investigation. Another German court has sent 14 questions to the EU’s top court, which is set to clarify the interpretation of the EU laws in the face of this new kind of investigation.
“As this is a new phenomenon, it’s normal to ask questions,” said Bohnert, the Belgian defense lawyer involved in the Sky ECC trial. “It’s not only about Belgium, it’s a question for Europe.”
Antoaneta Roussi contributed reporting.
