SKY ECC Arrests and Criminal Defense in Spain

In recent years, the use of encrypted messaging platforms has been in the crosshairs of law enforcement agencies from several countries. Sky ECC was one of the most widely used, allowing its users to exchange messages with an extreme level of encryption, automatically deleting them after a specified time or through a «panic» password. However, authorities managed to infiltrate the network, which resulted in multiple investigations and arrests in Spain and other countries.

However, the manner in which this infiltration was carried out has generated intense legal debate. To what extent is interference in encrypted communications legal? Have the fundamental rights of those under investigation been respected?

What is SKY ECC? Does the end justify the means?

Sky ECC was an encrypted messaging platform used to guarantee communication privacy. Developed by Sky Global, its technology allowed encrypted messages to be sent between specific devices. Messages were automatically deleted after 30 seconds and featured a «self-destruction» option in case the device was not accessible within 48 hours.

This advanced security system aroused the interest of international agencies, which suspected

Analysis of ECHR and CJEU case law

Access to information contained in mobile phones by police forces has been a topic of constant debate in Europe. With the publication of Organic Law 13/2015, Spain made significant progress in regulating technological investigation measures. However, recent case law from the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU) has called into question certain aspects of this legislation, especially regarding police access without a court order in emergency cases.

Below, we will analyze how these judgments have impacted the application of article 588 sexies c.4 of the Criminal Procedure Act (LECrim) and what implications this has for the criminal defense of those under investigation

Legal framework for police access to mobile devices

In Spain, access to electronic devices within the framework of a criminal investigation is regulated by Organic Law 13/2015. In particular, article 588 sexies c.4 of the LECrim allows the Judicial Police to perform a direct analysis of the contents of a seized mobile phone in emergency cases, without the need for prior judicial authorization.

The requirements for this intervention include:

• The existence of a legitimate constitutional interest that justifies

Similar cases in Europe and their impact in Spain

The strategy used to prosecute SKY ECC users has generated controversy throughout Europe. In countries such as Germany, France and the Netherlands, courts have excluded evidence obtained through infiltration of the platform, considering that it violated fundamental rights.

In Spain, judicial appeals have been filed to challenge this evidence, and some judges have expressed doubts about its validity.

This opens the door to a solid defense for people who have been arrested based exclusively on evidence extracted from SKY ECC.

Judgments that exclude evidence obtained by Sky ECC in Italy

The Italian Court of Cassation, in its Criminal Section 4 No. 32915 Year 2022 judgment, addressed the issue of admissibility of evidence obtained through hacking of encrypted communication systems, specifically Sky ECC, similar to EncroChat. In this ruling, the court emphasized the need for Italian courts to verify whether the method used to obtain such messages is compatible with the mandatory rules and fundamental principles of the Italian legal system. This implies detailed knowledge of the methods of acquisition of such material.

The Court determined that, without transparency about how these encrypted communications were obtained, evidence derived from such hacking cannot be admitted in proceedings