Introduction
In recent years, encrypted messaging platforms such as Encrochat and Sky-ECC have been infiltrated by law enforcement agencies, leading to the collection of vast amounts of communication data. These intercepted messages have been used as primary evidence in numerous criminal cases, particularly in Europe, where authorities claim they have dismantled major organized crime networks. However, the legality of such evidence, as well as its implications for fundamental rights such as privacy, due process, and the presumption of innocence, remain highly controversial.
This article examines the legal standing of Encrochat and Sky-ECC evidence in France, Germany, and Italy, analyzing key court rulings and international legal principles. It further evaluates whether such evidence could be deemed lawful under Turkish law, emphasizing the country's strict regulations regarding the admissibility of evidence and fundamental rights.
The Legal Status of Encrochat and Sky-ECC Evidence in International Law
France: Judicial Endorsement of Encrochat Data
On October 11, 2022, the French Court of Cassation ruled that Encrochat messages could be used as evidence in criminal proceedings. The court dismissed arguments against their admissibility, concluding that the investigation did not constitute mass surveillance and that merely owning an Encrochat device was sufficient to raise suspicion of involvement in organized crime.
However, this decision sparked criticism from privacy advocates and legal scholars who argue that law enforcement’s decryption and surveillance efforts lack transparency and violate fundamental rights such as the right to private communication and the presumption of innocence. Despite this, France has continued to use Encrochat and Sky-ECC data in criminal trials.
Germany: A More Restrictive Approach
The Regional Court of Berlin (October 19, 2022) questioned the legality of using Encrochat data, referring a preliminary ruling request (C-670/22) to the European Court of Justice (ECJ). The German court sought clarification on whether evidence obtained from a foreign jurisdiction—without adhering to Germany’s legal safeguards—could be used in domestic prosecutions.
On August 9, 2023, the German Federal Constitutional Court rejected constitutional complaints against criminal convictions based on Encrochat data. The court ruled that while the use of such evidence did not automatically violate fundamental rights, its admissibility should be assessed on a case-by-case basis, ensuring compliance with Germany’s constitutional standards.
Moreover, the Berlin Regional Court’s decision on December 19, 2024, reiterated that the German legal framework does not automatically recognize foreign-gathered evidence as lawful. The court ruled that evidence obtained via methods impermissible under German law cannot be used in domestic proceedings. This contrasts with the French stance, highlighting how different legal systems approach cross-border digital evidence.
Italy: A Judicially Passive Stance
In decision 6364/2022, the Italian Supreme Court ruled that Encrochat and Sky-ECC messages do not qualify as wiretapping evidence under Italian law. Instead, they are considered digital documents, making them subject to a more lenient evidentiary standard.
The court also held that Italian authorities are not required to assess the legality of evidence obtained by foreign law enforcement agencies. This means that as long as the evidence is acquired through an European Investigation Order (EIO), Italian courts can use it without additional scrutiny.
However, a more recent order (44/2024) raised questions about whether the collection of chat messages via an EIO should be subject to judicial oversight in the issuing state. This indicates a potential shift toward stricter evidentiary scrutiny in Italy.
The European Court of Justice’s Ruling (April 30, 2024)
The ECJ's ruling in C-670/22 established that:
- Encrochat and Sky-ECC data may be used in criminal cases only if they comply with national legal standards of the requesting state.
- The admissibility of evidence is a matter of national law, but courts must ensure that defendants' rights to defense and fair trial (Articles 47 and 48 of the Charter of Fundamental Rights of the EU) are upheld.
- A European Investigation Order (EIO) does not necessarily need to be issued by a judge, but evidence collection must be proportional and justified in the interest of public safety.
While the ruling does not explicitly prohibit the use of Encrochat data, it requires stricter judicial oversight, particularly when evidence has been obtained through mass surveillance techniques.
The Legal Perspective in Turkey: Encrochat and Sky-ECC Evidence as Unlawful Evidence
Turkey has a strict legal framework regarding evidence collection and admissibility, particularly concerning digital surveillance and privacy rights. Under Turkish law, Encrochat and Sky-ECC messages would likely be considered illegally obtained evidence for the following reasons:
1. The Exclusionary Rule of Unlawfully Obtained Evidence (CMK Articles 206 and 217)
According to Article 206(2)(a) and Article 217(2) of the Turkish Criminal Procedure Code (CMK), evidence obtained in violation of the law cannot be used against a defendant. Since Encrochat and Sky-ECC data were obtained through hacking and mass surveillance without individual judicial authorization, they would be classified as unlawful evidence in Turkish courts.
2. Violation of the Right to Privacy and Communication (Turkish Constitution Articles 20-22)
- Article 20 guarantees the right to privacy, stating that no one’s personal data shall be processed without their explicit consent unless authorized by law.
- Article 22 protects the confidentiality of communication, stating that interference with communication requires a judicial order.
Since Encrochat and Sky-ECC messages were intercepted without user consent and without Turkish judicial oversight, their use in criminal proceedings would violate constitutional protections.
3. The Principle of Fair Trial and the Presumption of Innocence (ECHR and Turkish Law)
Turkey is a signatory to the European Convention on Human Rights (ECHR), and the Turkish Constitution (Article 38/6) explicitly prohibits the use of unlawfully obtained evidence. The European Court of Human Rights (ECtHR) has ruled that the use of evidence obtained through mass surveillance, without proper judicial safeguards, violates the right to a fair trial (Article 6 ECHR).
Since Encrochat and Sky-ECC messages were obtained through a non-targeted, mass surveillance operation, their use would likely be deemed incompatible with ECHR standards.
4. Turkish Case Law and the Principle of Due Process
The Turkish Court of Cassation (Yargıtay) has repeatedly ruled that evidence obtained through unlawful surveillance or hacking is inadmissible. The court has emphasized that:
- Evidence must be collected following procedural safeguards under Turkish law.
- Illegally obtained digital evidence cannot be used in criminal convictions.
Given these precedents, it is highly unlikely that a Turkish court would accept Encrochat or Sky-ECC data as valid evidence.
Conclusion
The legal status of Encrochat and Sky-ECC evidence varies across jurisdictions. While France and Italy have largely accepted such evidence, Germany and the ECJ have imposed stricter scrutiny.
In Turkey, Encrochat and Sky-ECC evidence would be considered inadmissible due to violations of procedural law, privacy rights, and fair trial guarantees. The Turkish Constitution, CMK, and ECHR obligations clearly prohibit the use of evidence obtained through mass surveillance or hacking, reinforcing Turkey’s strict stance against unlawful evidence.
Ultimately, while European legal systems continue to debate the admissibility of Encrochat and Sky-ECC data, Turkish law leaves little to no room for its acceptance.