How diplomatic immunity silenced the prosecutor who coordinated Sweden’s EncroChat probe

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A senior Swedish prosecutor cited diplomatic immunity after being summoned to reply questions in court docket about Sweden’s function within the worldwide police operation to infiltrate the EncroChat encrypted telephone community utilized by organised crime teams.

Prosecutors mentioned Solveig Wollstad, head of the Swedish desk at Eurojust, the EU company for diplomatic cooperation within the Hague, had diplomatic standing that meant she was unable to provide proof about her work throughout a global police operation to hack into the EncroChat telephone community.
Defence legal professionals declare that the choice by a Swedish court docket to not name her to testify in regards to the EncroChat operation has left vital questions unanswered in regards to the legality beneath Swedish regulation of the interception operation, which enabled the French police to covertly harvest messages from Swedish residents who have been utilizing EncroChat telephones.
The legal professionals declare the interception could have been illegal as there is no such thing as a proof that Sweden sought approval from a Swedish Court docket to authorise France to conduct the mass interception of EncroChat encrypted telephones, which have been broadly utilized by organised crime teams, in Sweden.
The French-led operation to hack EncroChat by implanting malware on telephone handsets in 2020 has led to 1000’s of arrests and investigations into drug dealing and organised crime in 13 international locations, together with Germany, Sweden, Holland and France.
Within the UK, the Nationwide Crime Company, working with different police forces, had made 1,550 arrests and seized 5.8 tonnes of sophistication A and B medication, £57m in money, 115 firearms and a pair of,879 rounds of ammunition by May last year.
Defence lawyer Alparslan Tügel mentioned: “Virtually no info has been supplied by the Swedish prosecution company relating to how this info was gathered by the French authorities and the way it was dealt with by the French authorities. And little or no info has been given over the authorized evaluation of whether or not that is in accordance with Swedish regulation.”
Tügel and lawyer Thomas Olsson are representing a 30-year-old man accused of aiding and abetting a homicide that befell within the Outdated City of Gothenberg in Could final 12 months, in a case that makes use of proof from EncroChat messages.

Swedish desk

The Swedish desk on the European Union company for legal justice cooperation, Eurojust, headed by Swedish prosecutor Sloveig Wollstad, carried out a lot of the authorized legwork for Sweden within the EncroChat operation.
Wollstad, a member of Eurojust’s government board, supported by 5 Swedish prosecutors and a specialist in economics, was liable for liaising with France and different international locations over the authorized elements of the hacking operation.
Eurojust held 5 coordination conferences with France and the Netherlands to plan a hacking operation in opposition to the EncroChat telephone community in Spring 2020. Sweden, the UK, Norway and Spain have been invited to 2 of the conferences.
“By exchanging the information at a really early stage, the Swedish police managed to interrupt plans on killing folks, on kidnapping folks, and on trafficking totally different varieties of medicine,” Wollstad said in a videoed interview on October 2020 throughout a Eurojust Open Day.

Solveig Wollstad, head of the Swedish desk at Eurojust, mentioned intelligence from EncroChat allowed Swedish police to disrupt killings, kidnapping and medicines trafficking

The defence legal professionals meant to query Wollstad about Sweden’s liaison with the French authorities over the EncroChat operation, codenamed Operation Emma in France and 26Lemont in Holland.
Additionally they wished to learn about Eurojust’s contacts with representatives of Sweden’s Nationwide Operations Division (NOA), a police physique that coordinates police operations.
The Court of Appeal for Western Sweden despatched a summons to Solveig Wollstad at an tackle in Sweden, calling her to testify in individual on the court docket.
It got here after Linda H. Staaf, head of intelligence at NOA, submitted a letter as proof to the court docket which recognized Wollstad as the person liable for judicial cooperation between Sweden and France on the operation in opposition to EncroChat.
“The authorized elements of the knowledge sharing from France to Sweden have been dealt with through Europol by the Swedish consultant in Eurojust. Additional questions on this matter are due to this fact referred to the Prosecutor’s Workplace,” the word mentioned.

Secrecy regulation invoked

Sweden’s prosecutor basic, Petra Lundh, subsequently knowledgeable the court docket that she had determined that Wollstad couldn’t testify.
Lundh argued that any testimony from Wollstad involved issues of intergovernmental relations that have been protected by Swedish secrecy regulation.
The disclosure of any info that had not already been made public might harm Sweden or its worldwide relations with different international locations, she mentioned.
Defence legal professionals informed the appeals court docket that Sweden’s chief prosecutor had no authorized mandate to stop Wollstad giving proof.

Wollstad working over Christmas

On 30 November 2021, Sweden’s chief prosecutor knowledgeable attraction court docket that “Wollstad shall be serving at Eurojust through the Christmas holidays” and wouldn’t due to this fact be in Sweden on the day of the court docket listening to.
The Gothenburg court docket acknowledged that Wollstad, as a member of Eurojurst, had an obligation of confidentiality however however agreed to challenge a European Investigation Order requesting that Wollstad give proof by an audio and video hyperlink from The Hague.
5 days earlier than the listening to, Dutch prosecutors despatched a message to the court docket of attraction saying that Wollstad was protected by diplomatic immunity and will not give proof. The prosecutor wrote that Wollstad “can not revoke her diplomatic immunity. This could solely be carried out by Eurojust as an establishment”.

A Swedish court docket was informed that Eurojust must prepare a gathering of member states to launch Solvieg Wollstad, head of Eurojust’s Swedish desk, from diplomatic immunity

Two days earlier than the deliberate distant listening to, an officer from the Swedish court docket phoned Eurojust’s head of authorized affairs to make enquiries about whether or not Wollstad’s diplomatic immunity may very well be waived. She was informed that the court docket must make a written request to the president of Eurojust, who must convene member states to contemplate it – an unattainable job within the time obtainable.
The defence legal professionals pushed for the court docket to summon Wollstad to Sweden to testify in late January on a day put aside for by the court docket for any overruns within the listening to.
“We argued in court docket that it is a essential piece of knowledge for us that might have a huge impact for the court docket’s determination and likewise the defence,” mentioned Tügel.
However Wollstad informed the court docket that she was unavailable to attend the listening to on 24 January.
On 18 January, the Court docket of Enchantment dismissed the proposed listening to with Wollstad. It discovered that affordable efforts had been made to listen to the Eurojust prosecutor however that the case shouldn’t be delayed additional.

No details about Swedish authorized course of

Tügel mentioned the choice left defence legal professionals with no clear thought of the authorized course of adopted by Sweden to acquire the French intercepted materials.
“Virtually no info has been supplied by the Swedish prosecution company on how info was obtained from Swedish telephones by the French authorities, and the way the proof was dealt with by the French authorities,” he mentioned.
Beneath Swedish regulation, a court docket order is required to provide permission for the French authorities to conduct interception of telephones in Sweden, however Tügel mentioned there is no such thing as a proof of such a court docket order being made.

“We’d have appreciated to ask inquiries to Solveig Wollstad relating to how that may very well be, as a result of in her capability as Swedish member of Eurojust, she was the liaison level between Swedish authorities and the French authorities,” he mentioned.
Swedish prosecutors have beforehand disclosed they have no idea how the French Gendarmerie intercepted tens of millions of messages from EncroChat telephones.
“As a result of mutual belief between European international locations, it’s not Sweden’s function to query, and even ask, how the fabric happened,” the public prosecutor said in a statement on 22 April final 12 months.

Defence legal professionals query gaps in proof

The NOA’s Staaf confirmed in court docket on 21 December that the Swedish Police had given French investigators permission by e mail to research using EncroChat telephones by Swedish residents.
Staaf, who additionally writes crime novels, went on to play a key function within the interception of encrypted messages from an encrypted telephone community, Anom (also referred to as An0m), secretly run by the FBI in a joint operation with the Australian Federal Police. 
Throughout a witness listening to on the Court docket of Enchantment of Western Sweden, Staaf confirmed that Swedish prosecutors had acquired an electronic mail from a joint investigation crew (JIT) made up of French and Dutch police inviting Sweden and different international locations to obtain intelligence from the EncroChat hacking operation.
The e-mail, despatched on 27 March 2020 by means of Europol’s Sienna Info Trade, required Swedish officers to substantiate that they’d “been briefed on the strategies that had been used to generate information from units of their jurisdiction”. They have been additionally requested to substantiate that they understood the “authorized foundation for the deployment” of the investigative measures utilized in France.
Requested whether or not the JIT understood the reply from the NOA as a consent to the circumstances said within the e mail, Staaf mentioned she understood this to be the case. Staaf additionally said that it was the worldwide division on the NOA that replied to the e-mail and that she had not been personally concerned within the means of answering the e-mail from the Netherlands.

Police head of intelligence Linda H Staaf later labored with the FBI, the Australian Federal Police and Europol on Operation Trojan Protect, which equipped drug sellers with compromised encrypted telephones

In a separate one-page letter submitted to the court docket, dated 16 July 2021, Staaf wrote that the Swedish Police acquired info obtainable in France from the “EncroChat server” by means of an operational taskforce (OFT) at Europol.
The knowledge Sweden obtained from EncroChat may very well be used for intelligence functions beneath the settlement.
When the EncroChat operation grew to become public in July 2020, Sweden was in a position to ship European Investigation Orders to ask for permission to make use of EncroChat intercept in every particular person pre-trial investigation.

Server or handset?

Defence legal professionals have tried to boost questions on claims by Swedish prosecutors that French police intercepted messages from EncroChat from servers in France, somewhat than from handsets in Sweden.
The declare seems to contradict the findings of the appeals court in the UK, which discovered the EncroChat messages had been extracted not from a server in France, however instantly from telephone handsets within the international locations the place the telephones have been used.
The origin of the messages is essential, mentioned Tügel, as proof intercepted from handsets in Sweden with out a court docket order from a Swedish court docket doesn’t adjust to Swedish regulation, and shouldn’t be admissible or be granted much less weight.
“Now we have requested the prosecution authority on quite a few events to provide us explanation why they’re stating that the knowledge was gathered from the server,” he mentioned.
“The one piece of proof they introduced through the district court docket trial and court docket of attraction was a doc drafted and written by Linda H Staaf, stating that the knowledge got here from the server,” he mentioned. Staaf, in flip, mentioned she was provided that that info by the Swedish prosecutor.
“So there may be not a single piece of proof, and I can say this with out exaggerating, stating that the knowledge got here from the server,” mentioned Tügel.
Ted Esplund, an worker of the intelligence division throughout the Nationwide Operations Division, additionally gave proof through the case.
In his oral testimony in court docket, he said that he was liable for tasks like EncroChat and different tasks the place there may be shut cooperation with worldwide counterparts equivalent to overseas Police departments and Europol.

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