European Investigation Order and Right to Defence: Cassation Judgment 30383/2025 on Encrypted Evidence

International judicial cooperation is crucial for combating transnational crime. The European Investigation Order (EIO) facilitates cross-border evidence acquisition but raises questions regarding the right to defence. Judgment No. 30383 of 14/07/2025 by the Court of Cassation clarifies the balance between investigative needs and procedural guarantees, especially for evidence obtained from encrypted platforms.

The EIO, Fundamental Rights, and Foreign Encrypted Evidence

The EIO, governed by Directive 2014/41/EU (transposed by Legislative Decree 108/2017), allows one State to request investigative activities from another. It must respect the right to a fair trial and the right to defence (Art. 24 of the Italian Constitution, Art. 6 of the ECHR). Evidence from advanced technologies and encrypted platforms, often with servers abroad, such as interceptions on encrypted phones, presents challenges. The possibility for the suspect to challenge such evidence is crucial. The Court of Cassation, in the case of F. G., examined the lawfulness of interceptions ordered by a foreign authority.

In matters of jurisdictional relations with foreign authorities, in line with what was stated by the judgment of the ECJ of 24 September 2024 (No. 44715/20 and 47930/21, A. L. and E. J. v. France), there is no violation of the fundamental right to defence where a person subjected to a precautionary personal measure based on evidentiary elements acquired through an EIO – in this case, the results of interceptions ordered by the foreign judicial authority in criminal proceedings pending before it and carried out on an encrypted IT platform and on encrypted phones – has the possibility, in the executing State, to access an effective remedy to oppose the transmission of the evidence to the issuing State, with a procedure whose outcome, even if subsequent to the transmission of the evidence, must necessarily be taken into account, pursuant to Art. 14 of the EIO Directive.

Judgment No. 30383/2025 (President G. D. A., Rapporteur A. C.) establishes that the right to defence is not violated if the defendant has access to an "effective remedy" in the executing State to challenge the evidence. The Court of Cassation aligns with the ECJ (A. L. and E. J. v. France): the EIO does not infringe the right to defence if judicial oversight exists. The outcome of such a procedure, even if "subsequent," must be considered by the issuing State (Art. 14 EIO Directive). In the case of F. G., the appeal to the French judge was inadmissible due to formal defects, but the Court of Cassation excluded a violation, as the possibility of an effective remedy was provided. The guarantee of such a possibility is fundamental.

Transnational Defence Strategies and Conclusions

This ruling requires criminal defence lawyers to verify the existence and modalities of judicial remedies in the State executing the EIO. It is crucial to know their formal and substantive requirements. Key points for effective protection:

• **Foreign Laws**: Deepen understanding of the procedural regulations of the executing State to challenge evidence.
• **Rigor and Timelines**: File appeals within the prescribed deadlines and forms.
• **Outcome Monitoring**: Ensure that the outcome of the remedy is considered by the issuing State (Art. 14 EIO Directive).
• **Case Law Updates**: Constant updating on decisions from the ECJ and the Court of Cassation.

Judgment No. 30383/2025 reiterates: international judicial cooperation cannot sacrifice the right to defence. The effectiveness of the EIO is balanced by the guarantee of an "effective remedy" for the defendant. The legal system must offer an opportunity for oversight and challenge. Legal professionals must be updated on international criminal procedural law to ensure effective protection.