Spain’s highest criminal court has again shelved its investigation into the use of Israeli-made Pegasus software to target the mobile phones of senior Spanish ministers, including the prime minister, citing a chronic lack of cooperation from the Israeli authorities that has violated “the principle of good faith” between countries.
The investigation began in May 2022 after the Spanish government revealed that the phones of the prime minister, Pedro Sánchez, and the defence minister, Margarita Robles, had been infected the previous year with the spyware, which, according to its manufacturers, NSO Group, is available only to state agencies. It was later established that the phones of the interior minister and the agriculture minister had also been targeted.
The revelations led to the dismissal of Spain’s spy chief, Paz Esteban, and the admission that there had been “shortcomings” within the country’s national intelligence centre (CNI).
In a decision announced on Thursday, Judge José Luis Calama at the Audiencia Nacional in Madrid said the investigation into the use of Pegasus was being dropped for the second time because of a continuing lack of cooperation from Israel.
He said the court had been obliged to shelve the case because the Israeli authorities’ failure to respond to requests for information – in the form of letters rogatory – had impeded “the investigation into the attribution of the authorship of the investigated facts to any specific person”.
Calama said Israel’s failure to respond to his requests violated two international legal agreements it had signed, and he said its behaviour in the Pegasus case “disrupts the balance inherent in international cooperation and violates the principle of good faith that should govern relations between states”.
Calama originally ended the investigation in July 2023 but reopened it a few months later after the French authorities provided information on the use of Pegasus to infect the mobile phones of French ministers, MPs, lawyers and journalists.
In this week’s ruling, the judge said the material received from France did not contain any new information that would have allowed him to identify who had used Pegasus to target the Spanish politicians.
Calama said he had been frustrated by the Israeli authorities’ repeated failure to respond to his inquiries, which had included a request to take a statement from NSO’s chief executive. Without such cooperation, the judge said, his investigation “remains dormant … until information obtained through a possible, and unlikely, fulfilment of the letter rogatory that the state of Israel has obstructed, or until new sources of evidence [emerge], allowing the investigation to continue”.
In a statement sent to the Guardian when news of the targeting broke, NSO Group said its “firm stance on these issues is that the use of cyber tools in order to monitor politicians, dissidents, activists and journalists is a severe misuse of any technology and goes against the desired use of such critical tools”.
It said it was committed to investigating “any suspicion of misuse, and will cooperate and assist with any governmental investigation of these issues”.
It added: “NSO is a software provider, the company does not operate the technology nor is privy to the collected data. The company does not and cannot know who the targets of its customers are, yet implements measures to ensure that these systems are used solely for the authorised uses.”
NSO and the Israeli government have been approached for comment.
In July 2020, a joint investigation by the Guardian and El País revealed that senior pro-independence Catalan politicians were warned their mobile phones had been targeted using Pegasus spyware.
Two years later, cybersecurity experts at Citizen Lab at the University of Toronto said the devices of at least 63 people connected with the Catalan independence movement had been targeted or infected with the spyware between 2017 and 2020. It subsequently emerged that 18 of the 63 Catalan activists had been spied on legally and with the relevant judicial approval by the CNI.
