Communication from the encrypted Sky ECC application cannot be used as evidence before the Montenegrin judiciary, because it was obtained illegally, in violation of a number of international regulations, and selected in a manner susceptible to manipulation.
The lawyers told Vijesti Dragoljub Đukanović, Bojana Franović Kovačević, Miloš Vuksanović i Marko Radovic.
The four of them represent the rights of the defendants in several cases in which, as they claim, the indictment is based solely on correspondence from the Sky application.
In February 2021, with the support of Europol and Eurojust, judicial and law enforcement authorities in Belgium, France and the Netherlands managed to "break through" that application, i.e. the secret channels of communication through it - hundreds of millions of messages exchanged by criminals to investigators were helped in solving more murders, preventing new confrontations, but also led them to dirty policemen, judges, secret agents, prosecutors, investigators from Montenegro and the region.
Explaining their claim that "Sky communication" cannot be evidence in criminal cases before the Montenegrin judiciary, the four lawyers point out that in order for the evidence to be admissible in court and suitable for a legal court decision to be based on it, it must first of all be obtained legally.
"The problem with the aforementioned communications is that they were obtained by other countries and it is still not known exactly how it was done, but what is now evident in all jurisdictions across Europe is that it was done in violation of a number of international regulations, and especially the EU Directives regulating the issuing and processing of a European investigative warrant. It is also indisputable that these communications were not obtained in accordance with our Law on International Legal Assistance in Criminal Matters and the Code of Criminal Procedure of Montenegro, because the action taken by the allegedly competent investigative authorities of France is not an action recognized by our national law, and precisely that is the first condition for us to even be able to discuss the acceptance of such evidence", the lawyers claim.
Doubt about authenticity
They state that the next condition for the evidence to be acceptable is that the form, even though it is electronic evidence, is such that the authenticity of the content is not in doubt:
"However, even that condition was not met, because from a technical point of view, the way in which the evidence was not only obtained, but also processed and stored is problematic. What the defense has been able to obtain so far about how the alleged communication was technically exempt indicates that the content of the obtained communications could have been changed. This is confirmed by numerous IT and telecommunications experts. Having all the keys of the description with which some communication is encrypted, as was the case in this particular case, implies that the one who has all those keys can also change them, there is no guarantee that this has not been done, nor is there a way to check the same. Also, there is no way to see the entire alleged communication of a certain user, but only the parts for which we do not know who selected them and by what method, and what happened to the rest of the communication. It is clear that this way of storing data is both problematic for the examination of authenticity and therefore susceptible to manipulation".
Đukanović, Franović Kovačević, Vuksanović and Radović emphasize that they act in cases in which the indictments are based exclusively on "Sky communications".
"As the only evidence from which the existence of well-founded suspicion is derived. There are no examples of witnesses who have direct knowledge of alleged criminal acts, there are no traces of the commission of criminal acts, there are no traces of alleged perpetrators of criminal acts at specific locations that were the subject of criminal investigation, so there is nothing to prove that the crime was committed at all, let alone who carried it out", they claim.
"Italy does not recognize Sky as evidence"
Explaining how European countries treat evidence exempt from that "protected" application, they asserted that Italy has already made a decision not to accept Sky communications as evidence in court - "because they do not meet the standards of legal evidence".
They point out that Italy made the decision on non-acceptance precisely because of the fact that the entire alleged communication cannot be seen and it is not known how it was exempted.
"In other European countries, it has stopped in most cases that have Sky as evidence," claim the lawyers.
"Due to the same dilemmas and due to the indisputable non-compliance of the EU Directive on the European Investigation Warrant by the French, Belgian and Dutch competent authorities, Germany has referred the case to the European Court of Justice in Luxembourg for that court to declare whether evidence obtained in violation of EU law can be admissible in court. I think it is clear what kind of answer this court expects, precisely from the wording of the question to the Court of Justice. Even France, in one case, ordered an investigation into the actions of its competent investigative authorities due to doubts about the legality of those actions when collecting these communications. Great Britain has not moved beyond the reconnaissance phase in these cases, precisely because they believe that these communications can eventually serve as operational information, and not as evidence in court proceedings," the lawyers emphasize.
Sky revealed dark secrets
The "breaking" of Sky revealed many secrets and confirmed that criminal groups had a strong foothold in state institutions thanks to corrupt individuals who, in exchange for dirty money, forgot that they were in charge of investigating them, not helping them.
The stories about Sky, the messages exchanged by criminals, the official secrets that were given to them, first began to appear in Montenegrin and the media of surrounding countries, and then the arrests of criminals - those from black lists, but also people with badges, judge's IDs - followed. ...
Radonja, Junior, The evil lieutenant, officer, Commando, Comita, Cardinal, Serdar, Captain, Demon, Best, Born, Tiger, Amiko, Fast, Don, Fidel, starry, Red Scorpion, Amakin, 333, Death, Alberto Tomba, Mozart, Kasper, Drug, 10Not, Cocolina, Coco, Lawyer1, They kill, Strawberry... just some of the nicknames used on the encrypted Sky ECC application by members of Montenegrin organized crime groups and their collaborators from neighboring countries. Hidden behind them, they ordered murders, shared monstrous photos of their victims, arranged the smuggling of cocaine, cigarettes, illegal transportation of enormous amounts of dirty money, contracted court decisions and revealed police information to clan bosses.
Europol also provided the Montenegrin investigative authorities with the communications of local criminals, however, the Special State Prosecutor's Office (SDT), which he then managed Milivoje Katnic acted selectively in those cases. During 2021, media conferences were held where special prosecutors announced the bloody plans of criminals, mostly members of the Skaljar and Kavak clans. Although they also had correspondence from "state" mobsters, even then they remained beyond the reach of the law - they were prosecuted only when he became head of the SDT Vladimir Novović.
The last in the series because of Sky "fell" the special prosecutor Sasa Cadjenovic. They accuse him of turning a blind eye to the evidence provided by Europol about the then secret agent Petar Lazovic and the policeman Ljub Milović, who, according to evidence from Sky, are members of the organized crime group "Kavčani" that he formed Radoje Switzerland. Allegedly, when he archived the case, he hid the evidence from Europol.
SDT no response
The Special State Prosecutor's Office (SDT) did not comment on the lawyer's allegations, nor did they answer the Vijesta's questions about whether the communication from the "Sky ECC" application was obtained legally, or more precisely, how they came into possession of that communication.
The question of whether it is true that the content of the obtained communications could be changed, but also whether SDT owns the entire communication between a certain group of users or only "selected" parts as the lawyers claim, remained unanswered.
They did not even answer the question if the lawyer's claims are true - how many indictments were brought solely on the basis of "Sky" communication.
An open door for similar abuses
Asked what steps they plan or have already taken to prevent the intercepted messages from the Sky application from being evidence, the lawyers answer that they want to prevent illegally collected evidence, of disputed authenticity, from being used before Montenegrin courts.
"Because it would represent the collapse of the legal system, it would open up space for serious abuses and thus leave far-reaching consequences for the rule of law. We do not prevent intercepted messages from being used as evidence, as you formulated it in the question".
"We prevent communications whose authenticity we doubt for serious reasons to be used as legal evidence before the court, we prevent repressive authorities of our country and other countries from being given a free hand in terms of obtaining evidence and from being allowed to do what they want without regardless of international law and regardless of the national legal framework, we preserve the sovereignty of the state of Montenegro in this sense, because otherwise we allow any state at any time to undertake highly problematic investigative actions against our citizens without control and without any mechanisms protection of basic human rights", Đukanović, Franović Kovačević, Vuksanović and Radović write in the answer.
They point out that the problem is much more complex and that the consequences are much more far-reaching than it appears at first glance.
"Precisely the fact that the alleged contents of disputed communications were published in the media, which was also done against the law, and I don't see that anyone has launched an investigation into how this happened, is the best indicator of how the essence is being avoided. The idea is to shock the public and make this method acceptable, because it is in the interest of justice. Once something like that is allowed, the door is open for all future similar abuses, and then it will be the turn of political dissidents, then the turn of the civil sector, then the turn of journalists, and the like... Then it will be too late to talk about the legality of such obtained evidence, the damage will already be immeasurable", the lawyers assessed.
"We firmly believe that the Montenegrin courts will have the capacity to resolve this dilemma in accordance with the law, the Constitution and international law, that they will have the capacity to resist the pressure that is obviously coming from various addresses, and that in the end they will protect the legal order and the sovereignty of the state of Montenegro Above. If this is not the case, we have various international mechanisms at our disposal, and believe me, we will use each one, but we still hope that it will not come to that," they said.
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