EncroChat & SkyECC: Nullity of Evidence in Drug Trials
In this article
Key Takeaways
- Nullity of foreign evidence
- Right to know the algorithm
- CJEU Doctrine
- Fruit of the poisonous tree
In drug-trafficking macro-cases based on the interception of encrypted platforms such as EncroChat and SkyECC, the defence does not deny the content of the messages but attacks the lawfulness of their acquisition. The key grounds are the breach of the principle of territoriality and the lack of prior judicial control by a Spanish judge, the CJEU doctrine recognising the defence's right to examine the legality of evidence obtained abroad (against blind mutual trust), and the break in the chain of custody of files that passed through multiple hands and format conversions. All of this is raised as a preliminary question at the start of the oral trial (art. 666 LECrim), seeking the radical nullity of the material and, under the fruit of the poisonous tree doctrine, of the derived evidence.
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In recent years, the fight against organised 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 defence.
The Problem of the Evidence Origin
The defence 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 defence 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 defence 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 defence 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.
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Frequently asked questions
What are EncroChat and SkyECC?
They were encrypted communication platforms used by organised crime, whose servers were mass-intercepted by French, Belgian and Dutch authorities, generating millions of messages that have since fed thousands of criminal proceedings across Europe, including Spain.
Does the defence in these cases dispute the content of the intercepted messages?
Generally not — the defence typically does not deny what the messages say, but instead attacks the lawfulness of how that data was obtained and transferred into the Spanish proceedings.
What is the main legal argument against this kind of evidence?
That the interception breached the principle of territoriality and lacked prior judicial control by a Spanish judge, since French authorities intercepted data from people in Spain based on a generic European Investigation Order rather than a specific Spanish court order.
Can the defence examine how the interception technically worked?
CJEU case law recognises the defence's right to examine the legality of evidence obtained abroad; where the originating country treats the interception method as a state secret and refuses disclosure, this can itself support a challenge to the evidence's admissibility.
What happens to the chain of custody of these intercepted messages?
The raw files typically pass through multiple hands and format conversions before reaching Spanish police, and defence-commissioned expert reports have detected inconsistencies in metadata and message ordering that can undermine the reliability of the material.
How is this challenge raised in a Spanish trial?
As a preliminary question at the start of the oral trial (Art. 666 LECrim), seeking the nullity of the intercepted material and, under the 'fruit of the poisonous tree' doctrine, of all evidence derived from it.
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