SkyECC Evidence Excluded in Italy: Catanzaro Court Finds No Effective Remedy in France
The Tribunale di Catanzaro has removed from the case file all SkyECC chats that Italy had obtained from France through three European Investigation Orders (EIOs) in the "Ostro-Amaranto" proceedings. The written reasons for judgment no. 320/2026 of 9 October 2026 were filed on 6 November 2026. The court excluded the evidence because the defendants had no means, either in Italy or in France, of having the gathering and transfer of the data reviewed by a court.
Every charge that rested solely on the chats ended in acquittal, including the charge of membership of a mafia-type association (Art. 416-bis c.p.) against the Gallace group from Guardavalle in Calabria. The judge for the preliminary hearing (GUP), Dr Gilda Danila Romano, decided the case in the abbreviated procedure (rito abbreviato, Art. 442 c.p.p.). The judgment is not final.
The decision relies directly on the question the French Cour de cassation has referred to the CJEU in C-625/25 (Prudniez). That referral arose from a case that JDT co-founders Christian Lödden, Justus Reisinger and Guillaume Martine brought before the Cour de cassation on behalf of a defendant prosecuted in Germany on SkyECC data obtained from France by EIO (Cour de cassation, chambre criminelle, judgment of 16 September 2025, no. 24-84.262).
Read the anonymised judgment and our case summary in the JDT Case Law Database: Tribunale di Catanzaro, judgment no. 320/2026 (PDF download)
SkyECC chats as virtually the only evidence
According to the court, the messages transferred from France formed the core of the evidence for almost every charge. French authorities had diverted SkyECC traffic through their own server in a "man-in-the-middle" operation and decrypted it. Italy then requested, by three EIOs, the messages of the IDs attributed to Italian users.
The defence challenged the data on two levels. It argued that the interception was bulk and untargeted, carried out without concrete suspicion against identified persons. It also pointed out that no forensic copy existed: Italy had received only spreadsheets in which messages were not in continuous sequence and metadata were missing. Attribution of IDs to individual users remained doubtful because devices had been shared.
These objections initially failed. In the pre-trial detention proceedings of a co-defendant, the Corte di cassazione, relying on the 2024 Joint Chambers judgments ("Giorgi"), refused to let the Italian court review how France had gathered the evidence. Under Calvaruso (6th Section, no. 524 of 23 October 2025), an alleged breach of defence rights and of Art. 6 ECHR in the gathering of evidence abroad can be raised before the court of the issuing State only once remedies in the executing State have been exhausted.
The procedural route: an EIO requested by the defence
The defence therefore took another route. At the preliminary hearing on 9 January 2026 it asked the judge to issue an EIO with provisional measures under Art. 32 of Directive 2014/41/EU and Art. 26 of Legislative Decree 108/2017. France was to preserve the file of its proceedings against "X" so that the defendants could exercise their rights in the executing State. The court was also asked to establish whether the recognition and execution of the three Italian EIOs had ever been notified to the persons concerned.
The defence documented that all its requests to French authorities had gone unanswered or had been refused because the applicants were not parties to the French proceedings. The court granted the application on 22–23 January 2026. The prosecution's request for revocation failed, and on 9 June 2026 the Corte di cassazione dismissed its appeal. The Court of Cassation referred to the CJEU's judgment in M.N. (EncroChat), C-670/22, of 30 April 2024, to the ECtHR's decision in A.L. and E.J. v. France of 24 September 2024, and to the pending referral in C-625/25.
France refused to execute the EIO. In its view there was no risk of data loss, since the French proceedings were pending and the file was available to the parties. That was of no help to the Italian defendants, who are not parties in France. Further documents arrived through Eurojust, including a list of all EIOs between the two States, many of which had never been executed. The court found a general lack of proper communication between the States. France also relied on a "spontaneous" handover of investigative material to Italy on 27 November 2024. The court held that such an informal transfer cannot replace a formal EIO with a recognition decision and notice to the persons concerned.
Why the SkyECC evidence is inadmissible
The court's reasoning can be set out in six steps:
Under CJEU case law, the presumption that other Member States respect fundamental rights is rebuttable. Those affected must therefore have a real opportunity to rebut it.
Under C-670/22, the court of the issuing State may not review how the executing State gathered evidence already in its possession. France, in turn, gives the Italian defendants no remedy, because they lack party status and there is neither a recognition decision nor a notification they could challenge. They therefore have no judicial protection in either State.
Under Art. 14(7) of Directive 2014/41/EU, the issuing State must take into account a successful challenge in the executing State. All the more, the court reasoned, must it take into account that no defence at all was possible there.
For the three EIOs there is no recognition decision and no notice to the persons concerned, both for stored messages and for messages intercepted "live" after the orders were received. Here the court drew on Corte di cassazione no. 8320/2019, which had upheld the annulment of a recognition decision for lack of proper notice.
Under C-670/22, evidence must be disregarded where the accused cannot comment effectively on it and it is likely to have a preponderant influence on the findings of fact. The Tribunale di Imperia had already refused to admit EIO interception material on that basis because of technical opacity. Catanzaro extends the same reasoning to the complete absence of a remedy in the executing State.
The choice of the abbreviated procedure does not cure the defect. The breach of fundamental and defence rights amounts to an absolute invalidity that survives whatever procedure the defendant chooses.
The court accordingly treated all French evidence as if it did not exist (tamquam non esset). The association charge, the related charges of helping a fugitive evade the enforcement of his sentence, and a number of weapons and tobacco offences rested on the chats alone and ended in acquittals. Custodial measures were lifted, the asset freezes ended and the return of the seized assets was ordered.
The court nonetheless read the excluded chats in the defendants' favour, citing Cass. no. 17694/2018: an exclusionary rule protects the defence and must not lead the court to disregard exculpatory material.
What defence lawyers in other countries can take from Catanzaro
The judgment binds no court outside Italy. It does, however, describe a route that can be followed in other proceedings in which SkyECC or EncroChat data were imported from France by EIO:
Pursue remedies in the executing State and document every step. In Catanzaro, the full record of unsuccessful requests in France carried the decision and also answered the objection that the defence complaints were merely "exploratory". Calvaruso and A.L. and E.J. v. France both turn on the exhaustion of remedies in the executing State.
Ask for the recognition decision and proof of notification. Under Art. 14(3) of Directive 2014/41/EU, the issuing and executing authorities must provide information on available remedies in time for them to be used effectively. A missing recognition decision or missing notice is a provable fact on which an exclusion argument can be built.
Apply for an EIO on behalf of the defence. Art. 1(3) of Directive 2014/41/EU allows suspects and accused persons to request an EIO within the framework of national defence rights, and Art. 32 provides for provisional measures. Such an application obliges the court to engage with the availability of remedies in the executing State and produces a reply that can be used later.
Examine the transmission route. Where data arrived wholly or partly through a "spontaneous" handover rather than a formal EIO, the safeguards on which Catanzaro relies are missing.
Broaden the argument under Art. 14(7) of the Directive and C-670/22. Alongside the technical opacity of the data (the "black box" problem), the absence of any remedy against the gathering of the evidence can justify exclusion.
Use exculpatory content in excluded chats. Catanzaro read excluded messages in the defendants' favour.
Catanzaro and the pending CJEU case C-625/25 (Prudniez)
The judgment is a first-instance decision and the prosecution may appeal. The Corte di cassazione's line that challenges to the gathering of evidence belong in the executing State remains in place. Catanzaro builds on that line and draws the consequence where such a remedy does not in fact exist.
Whether a remedy must exist is the question now before the CJEU in C-625/25. The Cour de cassation asks whether Art. 14(1) of Directive 2014/41/EU, read with Art. 47 of the Charter, precludes legislation of the executing State that gives a person against whom existing evidence is used in the issuing State no remedy to challenge its regularity and necessity. As summarised by the Corte di cassazione, the Cour de cassation considers the French remedy under Art. 694-41 of the Code of Criminal Procedure inapplicable where evidence already held is transferred or where the proceedings against the person take place in another State. The Advocate General's Opinion is scheduled for 19 November 2026 (see our analysis of the written observations in C-625/25).
If the CJEU holds that the executing State must provide such a remedy, courts in issuing States will have to ascertain whether it was actually available in the individual case. Catanzaro shows how that assessment can turn out. Defence lawyers should put the necessary facts on the record now: the requests made in the executing State and their refusal, the absence of a recognition decision and notification, and the way the data were transmitted.
Download the anonymised judgment (PDF) and read our case summary in the JDT Case Law Database: Tribunale di Catanzaro, judgment no. 320/2026
Related: French Court of Cassation refers the SkyECC remedy question to the CJEU (C-625/25) · Tribunal of Imperia refuses to admit EncroChat evidence · CJEU M.N. (EncroChat), C-670/22
Source: Tribunale di Catanzaro, Office of the Judge for Preliminary Investigations and Preliminary Hearing, judgment no. 320/2026 of 9 October 2026, reasons filed on 6 November 2026 (p.p. 3452/2017 R.G.N.R., 295/2026 R.G. GIP).
