SkyECC and EncroChat: Italian Court Developments Strengthening Defence Challenges to Digital Evidence

Tribunale di Roma

In recent days, numerous press reports have appeared concerning decisions by Italian judges declaring EncroChat and SkyECC evidence inadmissible.

Let us take stock of the situation in order to understand what has actually occurred.

What happened in Imperia?

For the first time, in criminal proceedings for drug trafficking based on EncroChat evidence, a judge appointed a computer forensics expert to analyse the material obtained by the Italian Public Prosecutor’s Office through a European Investigation Order (EIO).

The expert concluded that the data could not be regarded as original evidence.

In particular:

• there is no evidence that the data set is complete;

• there is no evidence as to how the conversations were attributed to individual users;

• the material appears to be the result of a filtering process carried out by the French authorities.

The judge in Imperia therefore held, at this stage, that the material could not be admitted as valid evidence.

What happened in Catanzaro?

In drug trafficking proceedings, the judge preliminarily upheld the defence applications seeking to exercise an effective right to challenge the European Investigation Order through which the Italian Public Prosecutor’s Office obtained their clients’ EncroChat and SkyECC communications data.

At present, it is not known how the judge intends to give effect to this right. It is only known that a specific EIO will be addressed to France, although the content of that request has not yet been disclosed.

What happened in Rome?

In several proceedings before the Rome courts based on EncroChat and SkyECC evidence, the defence obtained permission to examine members of the French Gendarmerie as witnesses, in order to clarify the methods of data acquisition and, above all, the methods of transmission to the Italian authorities.

The French officers did not appear, and the French judicial authorities did not provide assistance. Consequently, the Rome courts consistently decided to dispense with those witnesses, thereby restricting the defence’s rights. However, following a further refusal, the Rome court has now adopted a different approach.

The court has authorised the defence to submit written questions to the French Gendarmerie. These questions will be transmitted by way of a letter of request to the French judicial authorities for a response.

Future developments SkyECC and EncroChat in Italy: what can be expected?

It is difficult to predict the impact of these decisions on Italian criminal proceedings.

These are interim measures adopted while the proceedings are still ongoing.

Nevertheless, the indications are highly positive.

All of these decisions refer to the principles established by the Court of Justice of the European Union (CJEU) in case C-670/22, in particular with regard to the rights of the defence recognised under Article 14(7) of Directive 2014/41/EU.

Also of importance is the decision by which the French Cour de cassation referred a preliminary question to the CJEU concerning the compatibility of French domestic law with EU principles. Users of SkyECC and EncroChat who were not subjects of the French investigation have no right to challenge and test the meassures in France.