Why the automatic admission of Sky ECC data in Albanian criminal proceedings violates Article 32/2 of the Constitution and European standards. In criminal law, there is a concept referred to as “evidence” that, although rarely explicitly articulated in the decision-making of Albanian courts, is increasingly applied in practice: the principle of the “silver platter doctrine”. This principle describes the situation when the receiving investigative body receives and uses evidence collected by another authority — today typically, a foreign one — and uses it in its own process without making an autonomous verification of the legality of the method of collection. The evidence is presented ready-made and the receiving court accepts and evaluates it in the form in which it was made available to it, without a substantial reconsideration of its origin. In American jurisprudence, this doctrine was abandoned with the “Elkins v. United States” decision of 1960, precisely because it created a space where constitutional guarantees were circumvented through a territorial “trick”.

Today, in the European space, a similar logic and practice is silently re-emerging in the cases of the encrypted platforms EncroChat and Sky ECC. The abandonment of this doctrine in the US was not accidental, it was considered as a mechanism that shifted the real point of control outside the jurisdiction where the individual was being tried. In this context, on December 30, 2024, the Constitutional Court of the Republic of Albania unanimously dismissed the request of Mr. Pëllumb Gjoka (the “Metamorphosis” file), delegating to the courts of ordinary jurisdiction the concrete assessment of the validity and usability of the Sky ECC interceptions. This delegation, in itself legitimate in the institutional plan, carries a real risk that, if the courts of ordinary jurisdiction do not exercise a genuine autonomous control, the evidence coming from Sky ECC enters the criminal process “served” on a silver platter.

The constitutional principle that opposes this automatism is clear. Article 32/2 of the Constitution is categorical: “No one may be found guilty on the basis of data collected illegally”. The norm does not condition illegality on territorial origin: the Constitution does not provide that it is only about data “collected illegally in Albania”. Consequently, the Albanian constitutional standard must also be applied to evidence received by letter of request or European investigation order. The principle of mutual trust between authorities cannot exempt the Albanian judge from the constitutional obligation of autonomous verification.
And Sky ECC itself is not a typical piece of evidence. The joint Franco-Belgian-Dutch operation of March 2021 that dismantled the platform raises at least four structural problems: (i) mass surveillance of over 170.000 users without any individualized suspicion; (ii) violation of territoriality — cryptographic keys were extracted from equipment located outside France, without notification of the countries where they were located; (iii) lack of technical transparency, in which case the defense does not have access to raw data and cryptographic hashes; (iv) impossibility of challenge at origin — French courts have repeatedly declared inadmissible the complaints of foreign defendants.

Europe is reacting, and not in favor of the “silver platter” principle. The Court of Justice of the European Union (CJEU), in the judgment of the Grand Chamber MN (EncroChat), C-670/22 (30.04.2024), confirmed that evidence obtained in violation of the right to due process must be excluded from the proceedings — that is, the judge of the receiving state has the obligation of autonomous assessment. This line of jurisprudence has been further reinforced by recent developments. On 17 June 2025, the French Court of Cassation ruled that France must notify other states when it interferes with equipment within their territory, otherwise the evidence is inadmissible and not used. On 16 September 2025, the same judgment referred to the CJEU preliminary questions on the effectiveness of remedies in such cases. In the same vein, national courts have begun to adopt a more restrictive approach. On 15 August 2025, the Zurich Higher Regional Court completely excluded the Sky ECC evidence due to a violation of the territoriality principle. In autumn 2025, the Audiencia Provincial de València decided to acquit 14 defendants on the same grounds. In December 2025, the Tuzla Cantonal Court rejected the Sky ECC evidence because the lack of opportunity for cross-examination by the defence constituted a violation of Article 6 of the ECHR.

This is where a concrete obligation for the Albanian judge stems from. Before a message obtained from the Sky ECC platform can serve as a basis for the determination of a security measure or eventually a sentence, a triple verification must be made: (1) Legality at source — are there court orders and authorizations from foreign authorities on file? Was the collection oriented on individualized suspicion or mass surveillance? (2) Technical integrity — are there hashes that prove that the dataset has not been modified? Does the defense have access to the raw data for cross-examination? (3) Compliance with Article 32/2 of the Constitution — does the method of collection violate the inviolability of correspondence (Article 36 of the Constitution) or the right to defense (Article 31 of the Constitution)? If so, the evidence must be excluded, regardless of its usefulness to the prosecution.

The fight against organized crime is necessary, but it cannot be carried out by removing the constitutional “filter” that distinguishes the rule of law from an effectiveness regime. The “silver platter” doctrine is attractive because it simplifies the work of the judicial authority, but it is a “constitutional trick”, an uncontrolled delegation of legality, which leaves the defendant without effective protection, precisely where he needs it most. The admission of Sky ECC data in Albanian criminal proceedings must be subject to an autonomous, substantial and documented control and assessment of legality, not a formal verification based on the principle of mutual trust towards foreign authorities such as Paris, Brussels or The Hague in this case.