Criminal Court of Cassation on EncroChat and SkyECC messages: the nature of the acquisition

1. The fact

   The case stems from a massive international police operation involving French and Dutch authorities. According to press reports regarding Operation Eureka, investigators managed to penetrate the EncroChat and SkyECC encrypted messaging systems, widely used for confidential communications. Through remote surveillance software (a Trojan-type malware installed on central servers), French authorities obtained millions of clear-text messages, which were then transmitted to Italian investigators.\n\nThe criminal proceedings subject to the decision are currently before the Court of Cassation, following challenges to the admissibility of such evidence in the lower courts and during Review proceedings. The prosecution claims the messages prove the logistical coordination of networks engaged in international drug trafficking. The defense, however, argued that the massive acquisition violated guarantees for telephonic and electronic interceptions, further complaining about the impossibility of verifying data reliability due to the State secrecy invoked by France over the decryption algorithms.

2. The norms at stake

   The core of the legal debate concerns the qualification of digital data:

   1. Art. 234-bis c.p.p.: governs the acquisition of digital documents and data stored abroad, allowing for a simplified procedure if the data is already static.
   2. Art. 266-bis c.p.p.: regulates the interception of electronic communications, which requires authorization decrees from the Judge for Preliminary Investigations and compliance with strict time and offense limits.
   3. Art. 270 c.p.p.: governs the use of interception results in proceedings other than those in which they were ordered, imposing a prohibition on admissibility except in specific statutory cases.
   4. Legislative Decree 108/2017: implements the Directive on the European Investigation Order (EIO), the cooperation instrument used to transfer data between EU Member States.

3. What the jurisprudence says

   The Court of Cassation, sitting in Joint Sessions, clarified that acquiring messages already intercepted and stored on a foreign server does not constitute a new interception activity, but rather the acquisition of pre-existing records. The Court ruled that if the foreign authority has already concluded the interception operation, the Italian Public Prosecutor can request the data via EIO without needing prior authorization from the GIP, as it involves transferring already established evidentiary material.\n\nThe judges also specified that the nature of the acquisition varies according to the type of data. In the case of real-time communication flows, the regime governing the evidentiary circulation of interceptions applies; conversely, for historical messages extracted from memory, the rules on records of evidence from other proceedings apply. Finally, the Supreme Court held that foreign State secrecy over the algorithm does not automatically prejudice the right of defense, provided the messages are readable and their integrity is guaranteed by certified chains of custody.

5. Analysis drafted and verified with edit.legal

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8. What it teaches professionals

   1. The defense must focus on the chain of custody of digital data, verifying every step from the foreign server to the forensic copy.
   2. It is essential to distinguish procedurally between historical data (documents) and data in transit (interceptions) to plead the correct admissibility regime.
   3. Jurisprudence on cross-border evidence requires constant monitoring of EIO compliance with the principles of proportionality and necessity set out in the EU Directive.

References: Articolo 234-bis c.p.p.Articolo 266-bis c.p.p.Articolo 270 c.p.p.Direttiva 2014/41/UED.Lgs. 108/2017

Editorial oversight: Avv. Federico Papa·ICAMUpdated 9 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction