On 15 August 2025, the High Court in Zurich issued a ruling declaring that digital investigations conducted without prior authorization from a domestic authority are inadmissible, and therefore rejected the Sky messages that the country had obtained as valid evidence. A year earlier, on 5 November 2024, the Supreme Court of Austria reached the same conclusion – EncroChat messages and Sky communications cannot be used as evidentiary material in proceedings. The Regional Court in Berlin acted identically on 19 December 2024. The Netherlands is one step away from deciding to reject the possibility of using such evidence. Ongoing cases before French courts continue to question the legality of digital investigations conducted without proper international notification, despite the fact that it was France itself that obtained the encrypted communication.
THE MESSAGES COULD HAVE BEEN GENERATED
France, which several years ago — through illegal hacking — broke into the network of encrypted devices and thus obtained millions of Sky and EncroChat messages, is now facing before its own courts a paradox that undermines the very foundation of the entire operation.
Namely, data that other EU countries once claimed to be indisputable no longer passes so easily in court, because several questions have imposed themselves: how exactly were these data obtained, who had control over them, and whether during the operation there existed the possibility of generating, altering, or selectively modifying messages.
What for years was portrayed as Europe’s greatest security victory over organized crime has overnight turned into a symbol of judicial and political quicksand. The absurdity lies in the fact that the states which obtained the evidence can no longer guarantee its authenticity, yet Serbia — which received those messages in a redacted and incomplete form — is expected to use them as unquestionable evidence.
ACCESS TO THE SERVERS – AN OPERATIONAL SECRET
The French Court of Cassation and numerous appellate panels have been forced in multiple cases to deal with the technical origin of the data and the issue of violating the privacy of the accused, rather than with the content of the messages themselves — and precisely this judicial obstacle reveals that the legal basis of the operation is far weaker than assumed.
Courts have noted that the defense has no access to the algorithms and hacking logs, that police refuse to disclose the methods used to access the servers, that “operational secrecy” has been used as a shield to withhold essential technical details, and that no mechanism exists to verify whether the messages were truly written by the users or whether they were the product of an implant which, as was established, was introduced into the system and had the capability to internally modify messages as needed.
ENCRYPTED MESSAGES AND HUMAN RIGHTS
On this issue, the French National Consultative Commission on Human Rights (CNCDH) also spoke out earlier this year. This is not merely a non-governmental organization, but a state body with a UN mandate, whose role is to monitor whether laws violate human rights and the rule of law. In an official declaration, they confirmed — and once again stressed — that such an approach in judicial practice violates numerous human rights of suspects and prevents them from exercising their right to an adequate defense.
“The French National Consultative Commission on Human Rights (CNCDH) issued a warning document clearly stating that, under the pretext of combating organized crime and drug trafficking, measures are being introduced that seriously undermine fundamental human rights and the principles of the rule of law. In its position, this body draws particular attention to the danger of legalizing mechanisms that erode the right to defense and equality of arms in criminal proceedings, including the practice of using encrypted communications and so-called ‘secret files,’ in which parts of the evidence — such as intercepted messages from encrypted platforms, including Sky communications — are withheld from the defense. CNCDH warns that this directly undermines the integrity of criminal proceedings, as suspects and their legal representatives are placed in a position where they must defend themselves against accusations based on evidence whose origin, scope, and context they cannot fully verify, which represents a serious blow to the right to a fair trial and the principle of adversarial procedure.”
MEASURES AND COUNTERMEASURES
Despite the well-argued warnings of the National Consultative Commission on Human Rights that extending anti-terrorist mechanisms into the realm of organized crime leads to violations of the rule of law and the rights of suspects, France has nevertheless proceeded with the creation of an agency for combating organized crime, conceived as a kind of “organized crime command,” tasked with directing and coordinating operations — effectively shifting the use of repressive measures out of the traditional judicial framework.
In parallel, the National Prosecutor’s Office for the Fight Against Organized Crime (PNACO) is being established, which from 2026 will centralize the most sensitive cases and coordinate judicial proceedings, while intelligence structures and financial services are simultaneously granted expanded administrative powers, ranging from freezing assets and closing facilities to using special investigative techniques, all without any oversight and through “secure files.”
In other words, such a concentration of power and insistence on secrecy not only undermines the integrity of proceedings and the rights of the defense — especially in cases that rely on intercepted and encrypted communications — but it effectively legalizes a model in which the fight against crime is increasingly waged by dubious and opaque methods, and decreasingly through a clear and transparent judicial process.
The Constitutional Council was nevertheless forced to amend parts of the law, and in some cases the Court of Cassation even suspended proceedings and requested an opinion from the European Court, which is a direct acknowledgment that even France itself is no longer certain how to justify the methods it has been using.
Although the adopted law enters into force only at the beginning of 2026, numerous human rights organizations, bar associations, and legal experts are already announcing countermeasures.
UNFATHOMABLE POSSIBILITIES FOR MANIPULATION
German judicial practice has exposed this dilemma even more starkly, rejecting parts of the message logs on the grounds that the chain of custody could not be established. What raises the greatest concern are the unfathomable possibilities for manipulation. Belgium, for its part, acknowledged that it could not reveal the method used because it was a “state secret,” thereby indirectly admitting that the process of obtaining the data was far removed from the usual standards of criminal procedure.
https://eucrim.eu/news/ecj-ruled-in-encrochat-case/
In several cases that attracted the most attention, the Regional Court in Berlin determined that the data acquired by France and its partners — including the Sky ECC and EncroChat communications — could not be used as evidence in criminal proceedings against the accused.
A QUESTION OF SOVEREIGNTY AS WELL
According to German media, after months of hearings, evidence provided by German investigators and prosecutors was examined, along with translations of material disclosed by the UK’s National Crime Agency during criminal trials involving EncroChat in the United Kingdom.
The Grand Chamber of the Regional Court in Berlin, composed of five judges, ruled orally in December that — contrary to the arguments of European prosecutors — French investigators had not intercepted EncroChat data from a central server in France, but had instead collected it from users’ mobile phones located on German territory.
Under German law, this meant that prosecutors were required to seek authorization from German courts to use the data that France had provided to Germany.
The presiding judge determined that prosecutors had not sought judicial approval, and that German courts would not have granted authorization for the EncroChat hacking operation under German law.
The decision followed a request by the Berlin Regional Court to the Court of Justice of the European Union, asking whether France’s sharing of hacked EncroChat messages with Germany was permissible under EU law.
The European Court ruled that, under the Directive on the European Investigation Order, France was obliged to formally notify Germany about the interception of EncroChat phones on German soil, and to give German authorities the opportunity to object to the operation if they wished.
THE OPINION OF THE BERLIN COURT
The Court of Justice, contrary to previous rulings of German courts, determined that the protections offered by Article 31 of the Directive on the European Investigation Order are designed to safeguard the rights not only of the state that receives evidence from another EU member state, but also of individual telecommunications users whose communications are intercepted by law-enforcement authorities.
This finding contradicted earlier conclusions of the German Federal Court of Justice, which held that Article 31 exists solely to safeguard the sovereignty of the member states, and that German citizens cannot invoke it as a means of protecting their individual rights.
(https://www.computerweekly.com/news/366617630/German-court-finds-hacked-EncroChat-phone-evidence-inadmissible)
The Berlin Regional Court therefore noted that there are differing legal standards concerning the protection of privacy and the right to a fair trial, and that the principle of mutual recognition within the EU — under which member states accept evidence from one another — does not mean that evidence which would be inadmissible under German law can automatically be used in Germany. The court also emphasized that no full mechanisms had been implemented to notify German authorities about the details of the French operation after which the data was transferred to Germany.
ARE THE OBTAINED DATA REALLY EVIDENCE?
Following the position expressed by the Berlin Regional Court, questions were submitted to the Court of Justice of the European Union regarding whether France should have formally notified Germany before carrying out the interception, and if it did not, whether such data can be used as evidence at all.
In several of its decisions, the CJEU stated that, under the European Directive on Investigation Orders, a state conducting an interception on the territory or within the jurisdiction of another member state must formally notify that state and give it the opportunity to react when the interception affects data within its territory or competence.
https://eucrim.eu/news/ecj-ruled-in-encrochat-case/
In practice, this means that in Germany it is not generally accepted that data obtained from Sky/EncroChat operations automatically become admissible evidence in all proceedings. In a number of cases, such data are rejected as inadmissible because they do not meet German requirements for judicial oversight and the protection of the right to a fair trial. Courts demand that the interception and exchange of data be shown to comply with European law, including the obligation of formal notification to the state expected to use the evidence. Judicial proceedings may be suspended, or the data may be treated only conditionally, if a possible violation of rights is alleged.
UNACCEPTABLE FOR EUROPE – BINDING FOR SERBIA
Considering all the facts listed above and the developments across Europe regarding Sky and EncroChat messages — not only in EU member states, but even in France itself, which was the key actor in the entire operation — where courts and human-rights organizations warn not only about violations of human rights and the illegal manner in which the messages were obtained, but above all point to clear, malicious manipulation of the messages, a deeply brazen paradox becomes evident: Serbia, which is not an EU member state and whose laws are not subject to the legal frameworks of these countries, is nevertheless expected to accept those same messages unconditionally and use them as indisputable evidence.
What is most dangerous is that Western countries also expect Serbia to conduct proceedings on the basis of indictments not written by prosecutors, but by pro-Western media, relying on loose speculation and verdicts that have already been passed in the court of public opinion. This is not merely an attack on sovereignty, but in Serbia’s case above all a form of political pressure, since the names mentioned by Western media in the Sky messages are individuals from the highest levels of state leadership.
Through selective extraction of fragments from the correspondence and the transformation of technically unverifiable messages into “evidence” for which political consequences are demanded, these media effectively determine the direction in which the prosecution should act, expecting state institutions to align themselves with the editorial policy of the United Group and to prosecute individuals previously targeted by those outlets.
MEDIA VERDICT FIRST – INDICTMENT LATER
When we add to this the fact that Serbia does not receive the data — the so-called Sky messages — in their original technical form as EU countries do, but instead in an already selected, redacted, and incomplete version, it becomes clear how vast the gap is between the standards applied in Europe and what is being demanded of Serbia.
Europe, therefore, reserves for itself the right to doubt, to verify, and to maintain critical distance, while expecting Serbia to accept — without any scrutiny — not even the same material, but, let us repeat, a redacted one. At the same time, the pro-Western media inside the country use these materials to write the script in advance, creating an atmosphere in which the verdict exists long before the indictment.
In this discrepancy, it is difficult not to ask: how is it possible that Europe questions its own evidence — that it challenges it, limits it, and declares it insufficiently reliable, that some countries reject the use of encrypted messages in any form as admissible evidence — while Serbia is expected to accept those same messages without a shred of doubt? And how is it possible that this media cartel, closely tied to political and financial centers of power located outside Serbia, promotes these disputed messages as final truth, attempting to force the prosecution’s response to align with its own narrative?
The answer to that question reveals not only the EU’s attitude toward Serbia, but also the attitude of part of Serbia’s media landscape toward the truth — which is no longer what is established, but what is needed by those who finance such propaganda — and this at a moment when even Europe itself can no longer guarantee that the material on which its “truths” rest is, in fact, authentic at all.
