Austrian Supreme Court: § 55d(7) EU-JZG creates an unconditional ban on using SkyECC interception results

On 5 November 2024 the Austrian Supreme Court (OGH) rejected on procedural grounds a fundamental-rights complaint against continued pre-trial detention in a cocaine case resting largely on SkyECC chats. In its reasoning the court held that where a foreign authority notifies an Austrian prosecutor of a telecommunications interception carried out in Austria without Austrian assistance, § 55d(7) EU-JZG (implementing Art. 31 Directive 2014/41/EU) obliges the prosecutor to bar use of the results if the measure could not have been ordered domestically. Read together with CJEU C-670/22, the provision creates an unconditional evidence-use ban comparable to § 140(1) StPO, which leaves no room for a fairness balancing under Art. 6 ECHR. An EIO for trojan-based interception of encrypted phones would probably not be executable in Austria. The complaint failed only because the applicant did not show where the 270-page, largely foreign-language file documented such a notification.