The European Court of Human Rights, as well as the Court of the European Union, have not yet ruled on possible violations of the Convention for the Protection of Human Rights and Fundamental Freedoms, i.e. EU rights, which would be a consequence of the exclusion of communication with SKY ECC, Ana, EncroChat and Exclu applications and its use in criminal proceedings.
Among other things, this is written in the report "Extraction of illegally obtained evidence in criminal proceedings", which was done by the non-governmental organization Action for Human Rights. It was announced that the text will be presented at the conference today.
When it comes to the use of evidence obtained from SKY ECC or similar applications, as stated in the recommendations of the report, care should be taken to establish its authenticity and reliability, and for this, as with all other evidence, it is crucial that enable the defense to effectively challenge all "incriminating evidence and to be given access to possibly exculpatory evidence that is in the possession of the prosecution or that it can access".
"In this specific context, it is good that the State Prosecutor's Office tries to confirm the authenticity of the evidence obtained from the SKY ECC application with other evidence, because it can contribute to verifying their reliability, but in order for an effective defense to be possible, it should be aware of the relevant data on the operation in which they were collected and should be given access to all the evidence related to the defendant", the report says.
HRA states that legal issues and dilemmas, which are raised in proceedings before numerous national courts, and in connection with the use of SKY ECC communication are largely similar.
In the proceedings, which are being conducted before the ECtHR, the applicants are two citizens of the United Kingdom who are being prosecuted in their country on the basis of evidence obtained from the EncroChat application by the French authorities.
"They believe that their rights to a fair trial and effective legal remedy from Articles 6 and 13 of the Convention have been violated. Therefore, they have not yet submitted the applications for the use of the evidence obtained in this way in the criminal proceedings," the report states.
The HRA states that in the indictment filed on December 30, 2022, against a group of 11 persons, it is written that the material with encrypted communication was obtained based on SDT requests in the procedure of international legal assistance and that it was obtained as "legally valid evidence in the procedure that in accordance with the material and procedural legislation of France, according to the written orders of the Court of Appeal in Paris, and that on the basis of it, the defendants were identified as users of the application".
In the report, Action for Human Rights largely deals with the illegal collection of evidence, where they stated that the Criminal Procedure Law clearly establishes mechanisms for examining the legality of evidence and separating illegal evidence at all stages of the procedure.
"However, in practice, these possibilities are insufficiently used, so often only the highest judicial instances, the Supreme Court and the Court of Appeal, demand the selection of evidence that from the beginning of the procedure could not be in any doubt that it was illegal and that a court decision cannot be based on it". the report says.
"Until the passing of a decision of the Higher Court in Podgorica at the end of June 2023, in judicial practice we did not come across a single example of separating evidence obtained through abuse or evidence for which there is a serious suspicion that they were obtained in this way, although there were several cases in which the accused made well-supported claims that their statements or witness statements were coerced, and other evidence pointed to this. This, at least in some cases, is a consequence of the attitude of the courts that abuse must be proven "beyond reasonable doubt", that is, with a very high degree of probability. Such an attitude is not in accordance with the international standard", says HRA.
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