Austrian Supreme Court confirms the unconditional SkyECC evidence-use ban under § 55d(7) EU-JZG

On 13 November 2024 the Austrian Supreme Court (OGH) rejected on procedural grounds a fundamental-rights complaint against continued pre-trial detention in a large-scale cannabis cultivation case built on SkyECC chats. The court endorsed 14 Os 107/24b: once an Austrian prosecutor has been notified of a foreign interception within the meaning of Art. 31 Directive 2014/41/EU, § 55d(7) in conjunction with § 55a(1) no. 13 EU-JZG creates an unconditional ban on using the results, comparable to § 140(1) StPO. An EIO for trojan-based interception of encrypted phones would probably not be executable in Austria. The complaint failed because the applicant did not identify the passages of the foreign-language file showing that the Vienna prosecutor had been notified, so the defence must establish the notification facts precisely. Arguments under Art. 6 and Art. 8 ECHR fall outside this type of complaint, which is confined to Art. 5 ECHR.