Spanish Supreme Court Validates EncroChat Evidence Decision

The Supreme Court Validates EncroChat

The recent Supreme Court ruling, No. 854/2025, of October 16, marks a turning point in the debate over the validity of evidence from EncroChat, SKY ECC or ANOM, the encrypted phone network intercepted by French authorities in 2020.
The High Court validates the use of such evidence in Spain, rejecting the appeals of several defendants and confirming the convictions handed down by the National Court.

What was EncroChat?

EncroChat was an encrypted telecommunications network used, according to European investigations, by thousands of people across the continent.
The devices—sold for around 3,000 euros—offered end-to-end encrypted messaging and a message self-destruction system.
In 2020, French and Dutch authorities managed to infiltrate the system, installing software capable of capturing millions of messages before they were encrypted.

From there, the data was filtered by country and sent to the various member states.

Spain received the information through the so-called Transmission spontanée d’information sent by France, which gave rise to numerous investigations for drug trafficking, money laundering

A Critical Analysis of the Supreme Court Ruling

A Dangerous Endorsement of Mass Interference

This author profoundly disagrees with the Supreme Court’s criterion in this ruling on EncroChat.
It is clearly perceived that the Court wanted to «get by,» avoiding ruling on the substance of the matter—the compatibility of this interference with the Criminal Procedure Act—and transferring to the CJEU or the ECtHR the responsibility of resolving a problem that they know perfectly well does not fit into our criminal procedural system.

Contradictions Regarding Mass Interference

The Supreme Court recognizes that the measure was so broad as to be considered mass interference, but at the same time denies that it was prospective.
And there arises the great contradiction: mass interference, by definition, cannot be focused on previously identified subjects.

If there were specific suspects, the measure should not have been massive; if it was the only possible way, then there were no individualized suspects.
And that, in our law, fits squarely into the concept of prospective investigation, expressly prohibited.

A Contrast with European Comparative Law

Omission of the Berlin Regional Court Ruling that Declares EncroChat Evidence Null

The Spanish Supreme Court cites numerous resolutions from other European countries

Lack of Prior Notification by French Authorities

An Obligation Imposed by Directive 2014/41/EU

The Court also mentions Article 31 of Directive 2014/41/EU, which imposes the duty of notification when an investigative measure affects another Member State, but limits itself to stating that the Directive «does not provide for the consequences of lack of notification».
From there, the Supreme Court accepts as valid the Transmission spontanée d’information sent by France—months after the intervention—and interprets it as a kind of ex post remedy, something that lacks any legal support.

Notification as a Guarantee of Sovereignty and Judicial Control

Notification is not a formality, but an essential guarantee of judicial control and respect for the sovereignty of the affected State.
The CJEU ruling itself (paragraph 123) recognizes that, at the European level, the response of the notified State is discretionary, but makes it clear that this power can only be exercised when the measure would not be permitted in a similar domestic case.
However, Spain, when transposing the Directive through Law 23/2014, of November 20, was much stricter: its Article 222

Adrift Awaiting a Future CJEU Resolution on EncroChat

The Supreme Court ruling leaves the impression that Spain is judicially adrift on a crucial matter for procedural guarantees.
The ruling itself admits—although it avoids it—that there are structural deficiencies in European judicial cooperation regarding EncroChat: lack of prior notification, absence of Spanish judicial control, inability to verify the technical authenticity of evidence, and deprivation of the defense’s effective access to the evidence.
And yet, the Court chooses not to resolve these deficiencies, but to postpone the debate, trusting that the Court of Justice of the European Union will eventually delimit the scope of Directive 2014/41/EU and the fundamental rights involved.

Everything points to the CJEU having to rule, sooner rather than later, on three essential questions:

1.- Whether mass interception of communications without prior notification to the affected State is compatible with Union law.

2.- Whether information processed and filtered without judicial control or verifiable technical traceability can be admitted as valid evidence.

3.- And whether mutual trust between Member States can prevail over the right of defense and the principle of national procedural legality.

Until then, Spain finds itself in an uncomfortable position: it accepts mass interference in the privacy of thousands of citizens without Spanish judicial control, trusting in foreign legality that it neither knows nor can supervise.

While other European courts—like Berlin’s—opt for caution and exclusion of evidence of dubious origin, the Spanish Supreme Court prefers effectiveness to guarantee, result to procedure