EncroChat & SkyECC: Nullity of Evidence in Drug Trials

In recent years, the fight against organized crime and international drug trafficking has experienced a technological and legal revolution with operations against encrypted communication platforms such as EncroChat, SkyECC, and Anom. These operations, led by French, Belgian, and Dutch authorities, consisted of the massive "infection" of these companies' servers to read millions of messages from presumably criminal users in real-time. The information obtained has served to open thousands of criminal proceedings across Europe, including Spain. However, the legality of this evidence is highly debatable and constitutes the main battlefield of current criminal defense.

The Problem of the Evidence Origin

The defense in these cases does not focus on denying the content of the messages (which are often explicit about drug shipments or money laundering), but on attacking the lawfulness of their acquisition. The central argument is the breach of the principle of territoriality and the lack of judicial control at the source. French authorities intercepted data from Spanish citizens on Spanish territory without prior judicial authorization from a Spanish judge, based on a generic European Investigation Order (EIO).

The Stance of the CJEU and the Supreme Court

Recent rulings by the Court of Justice of the European Union (CJEU) have established that the defense must have the possibility to examine the legality of evidence obtained abroad. This breaks with the principle of blind "mutual trust" between states. If the defense cannot know how the server was hacked (because France declares it a state secret), the right to a fair trial is violated. One cannot defend oneself from a "black box".

"The massive and indiscriminate interception of communications, without prior individualized indications against a specific person, resembles more a 'fishing expedition' prohibited by our constitutional order than a lawful prospective investigation."

The Break in the Chain of Custody

Another pillar of the defense is data integrity. The raw files extracted from French servers have passed through multiple hands and format conversions before reaching the Civil Guard or National Police. In various private computer expert reports, we have detected inconsistencies in metadata, duplicate or chronologically disordered messages, which prevents ensuring that the conversation has not been altered or taken out of context. Without an immaculate chain of custody, digital evidence lacks the reliability necessary to destroy the presumption of innocence.

Procedural Strategy: The Preliminary Question

In drug trafficking macro-trials based on these platforms, the strategy must be raised as a Preliminary Question at the beginning of the oral trial (art. 666 LECrim), requesting the radical nullity of all evidentiary material derived from the hacking (fruit of the poisonous tree doctrine). If the chats are annulled, in most cases, the entire case collapses due to a lack of other independent evidence.