Sky ECC in Italy: united Supreme Court chambers set rules for foreign encrypted evidence
Two Italian united-chambers judgments from 2024 explain when French Sky ECC data may be used in Italian criminal cases. The court held that transferring existing evidence does not always require prior judicial approval. Fundamental rights and a fair trial remain limits.
Judgments 23755/2024 and 23756/2024 were decided on 29 February 2024 and published with their reasoning on 14 June. They concern appeals by Ermal Gjuzi and Bruno and Sebastiano Giorgi against pre-trial detention decisions in separate drug investigations. Italian authorities obtained French encrypted messages through European Investigation Orders. The defence challenged, among other matters, the legality, reliability and ability to scrutinise those data.
The united criminal chambers distinguished fresh interception from transferring data already collected and decrypted by a foreign judicial authority. In the latter situation, the Italian prosecutor could request existing evidence without prior approval from an Italian judge. The court placed this within rules governing evidence exchange between criminal proceedings, rather than a general power to intercept new communications without a judge.
The Italian judge must nevertheless exclude evidence if using it would violate fundamental rights, including defence rights and a fair trial. A party alleging a violation must present and substantiate concrete facts. In the court’s view, lack of access to the decryption algorithm alone was insufficient; specific indications of problems with the data remain relevant. The appeals were dismissed.
