In evaluating whether the French interception of the Encrochat phones amounts to a violation of Art.8 ECHR, applying the established ECtHR's methodology will require to take into consideration whether there was an interference with individual rights, whether the measure was in accordance with the law, whether it pursued a legitimate aim, and if it was “necessary in a democratic society”.
Allegedly, the Encrochat data collection from the encrypted devices was conducted according to the French criminal code (CCP-F). In France judicial interception measures are an “extrema ratio where other investigative methods would be unsuccessful or unavailable (under the principle of subsidiarity).” (Galli, 2016) The investigating judge, after obtaining the opinion of the public prosecutor, can issue a warrant to authorize the investigators to place an interception device in order to access data in all places and to record, store and transfer these data without the consent of the individuals concerned (Article 706-102-1 of the Code of Criminal Procedure). (EJN, 2022) Law 204/2004 extended the possibility to use judicial interceptions to preliminary and in flagrante police investigations (i.e., to cases where no instruction had yet been instituted) for a limited number of serious offences listed in article 706(73) of the CPP-F.
They are authorized (and supervised) by the juge des libertés et de la detention on the application of the district prosecutor and cannot last longer than 15 days, renewable once under the same conditions of form and duration (Galli, 2016).
However, it is unclear which of those provision of the CCP-F were the legal bases for the computer surveillance. France also has a detailed law on domestic and foreign intelligence collection for law enforcement purposes which, however, requires a different authorization and supervision regime than judicial warrants (FRA, 2017).
The law in France on international surveillance states that only “the prime minister can authorize the exploitation of targeted content data and metadata […] The French oversight body only performs ex post controls over the implemented measures.” (FRA, 2017) There is no information on the authorization of this type having been granted or not.
The legal bases and the procedure followed for the operation as well as to what extent the LEAs had reasonable suspicion about concrete suspects remains protected as military secret.
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