Austrian Supreme Court Rules on the Use of SkyECC-Evidence Collected by Foreign Authorities

Austrian Supreme Court Rules on the Use of SkyECC

In two key rulings issued in November 2024, the Austrian Supreme Court (OGH) determined that evidence collected by foreign European investigative authorities on mobile devices in Austria cannot be used in Austria if the methods employed by the foreign authorities would not have been permissible under Austrian law.

The cases in question specifically concern evidence obtained from SkyECC devices. The Austrian Supreme Court explicitly referred to the European Court of Justice’s (ECJ) EncroChat decision (C-670/22), which states that the guaranteed level of protection in the Member State where the data was collected must not be circumvented.

The court clarified that if the Austrian public prosecutor had been informed of such an investigative measure—one that would not be permissible under Austrian law—they would have had 96 hours to notify the foreign authority that message surveillance cannot be conducted or must be terminated. Furthermore, any results already gathered from such surveillance must not be used. This applies even if the collection was carried out without the involvement of Austrian authorities and had already been completed.

Additionally, the court emphasized that it is irrelevant whether this "notification" under Article 31 of the EIO Directive was carried out using the designated form (Annex C to Directive 2014/41/EU of the European Parliament and of the Council of April 3, 2014, on the European Investigation Order in criminal matters [in short: EIO Directive]). The decisive factor is that the issuing authority must provide the Austrian public prosecutor with sufficient information to legally assess the circumstances under which the data was collected.

Finally, the Austrian Supreme Court ruled that the relevant Austrian provision (§ 55d para. 7 EU-JZG) does not grant the public prosecutor any discretion in cases where an investigative measure would not have been permissible under Austrian law—meaning the use of such evidence is strictly prohibited.

This ruling is of critical importance for other countries, such as Germany, because Austria’s highest court has made it clear that domestic legal protections for covert investigative measures affecting fundamental rights cannot be bypassed by foreign authorities. Ultimately, the only decisive factor is whether the investigative measure would have been lawful in the country seeking to use the data as evidence.

This interpretation aligns with the European Court of Justice’s case law, which consistently focuses on ensuring comparability with a domestic scenario.

You cand find the full decisions here and here.