Bajović: The judgment of the European Court for the use of Sky and EncroChat applications is not valid outside the EU

The decision of the EU Court of Justice largely deals with the European Investigation Warrants through which EncroChat and Sky ECC data were delivered to the EU member states, more precisely the questions of who is authorized to issue these warrants, the conditions for their issuance and the like. These provisions are inapplicable in Montenegro and Serbia, because European investigative orders are valid only in EU member states and do not apply to non-member states where evidence is still delivered through the classic "small" international legal assistance, she told News dr Vanja Bajović, professor at the Faculty of Law in Belgrade, from the Department of Criminal Law.

Although the judgments of the Court of Justice of the EU formally legally bind only EU member states, Bajović adds, that decision is of particular importance because it is the first decision of an international, supranational court that deals with the conditions under which data obtained by intercepting encrypted communication platforms can be used as evidence in criminal proceedings in other countries.

Dr. Bajović also teaches international criminal law. She published the scientific paper "EncroChat and Sky ECC communication as evidence in criminal proceedings" and is one of the internationally recognized experts in this field, which is becoming increasingly important for judicial practice.

He explains that the decision of the European Court of Justice was made at the initiative of the court in Berlin, which initially excluded from the evidence the data obtained by hacking the EncroChat platform, on the grounds that it was mass surveillance that called into question the requirement for the necessity and proportionality of the measure, but later the court in Hamburg accepted their use. Uneven judicial practice in Germany led, Bajović adds, to the fact that the court in Berlin turned to this supranational judicial instance.

"European investigative orders were created as a model for faster and more efficient collection of evidence in EU member states because they simplify the principle of classic international legal assistance. In the EU, the principle of mutual trust and recognition of the decisions of other member states applies, because it assumes that the member states have reached a certain level of legal security, which can be a sufficient guarantee for other members to respect the law," the professor emphasizes.

However, Dr. Vanja Bajović warns, despite these principles, the European Court still took the view that, when it comes to data obtained by interception of encrypted communication platforms in other countries (specifically France), this data cannot be used "automatically". , some other conditions must be met.

"It is required, first of all, that the same measure can be determined under the same conditions and in the law of another country where these data are used. This requirement is important because it is specified that the necessity and proportionality of the surveillance measure is assessed according to the internal law of the country issuing the order, that is, the country where the evidence is used. In the specific decision, German law was analyzed and Article 100a of the German Criminal Code, which allows the installation of spy computer programs on terminal equipment and the like, but the problem is with those countries whose legislation does not provide for evidentiary measures of online surveillance at all, because according to logic, such measures and they cannot determine, so it is pointless to talk about the same conditions for their determination", emphasizes Dr. Bajović.

It is also required, Dr. Vanja Bajović adds, that the state on whose territory there are persons whose communications are being monitored must be informed about it, even if its technical assistance is not necessary for the monitoring to be carried out.

"This concretely means that France should have informed in advance all countries whose citizens are being monitored, even if it does not need the help of foreign operators to carry out such surveillance. For example, this does not apply to Belgium and the Netherlands, which were members of the joint investigation team for the cutting of these platforms, so they were informed about the measures, but it applies to all other countries to which the obtained data was later delivered," explains the professor, emphasizing that answered the particularly controversial question on which legal basis a foreign state can monitor persons outside its territory for criminal acts committed outside its territory, without it being classic "espionage".

"Despite the principle of trust between member states and mutual recognition of decisions, EU member states still retain that sphere of sovereignty that prevents other states from collecting evidence on their territory without their knowledge," warns Dr. Bajović.

She points out that the Decision insists on respecting the rights of the defense and the fairness of the procedure, which means that the defense must be given the opportunity to dispute the obtained data.

"This does not imply that the ``confidentiality of the technical bases'' must be disclosed, that is, the way in which the data was technically obtained in France, but the defense must have the possibility to effectively declare evidence that can have a decisive impact on establishing the facts. In this context, it is problematic if encrypted correspondence is the only evidence in criminal proceedings, since then they are undoubtedly of decisive importance for establishing the facts", says Dr. Vanja Bajović.

She believes that the aforementioned decision has legal effect only on the territory of the EU member states, but these principles should apply to third countries as well because, even with regard to European investigative orders, additional conditions are prescribed in order to protect the sovereignty of states and guarantee a fair procedure. , it is logical that even stricter conditions are required for countries outside the system of European Investigation Orders, for which the principle of mutual trust and automatic recognition of foreign court decisions does not apply.

"That is why it was far more "legally clean" that the obtained data were used as operational data, i.e. as a "roadmap for obtaining other evidence", rather than that prosecutors' offices in the region rely on data whose evidentiary admissibility is disputed from the point of view of supranational court instances", concludes Dr. Vanja Bajović.

The judgment of the European Court of Justice of April 30 interpreted the applicability of the European Investigation Order at the request of the Regional Court in Berlin, in connection with the intercepted encrypted communication from the EncroChat application.

In July 2020, French and Dutch judicial and police officials announced that they had cracked the worldwide encrypted communications network Encrochat, which was exclusively used by criminal organizations, drug smugglers, and assassins.

European police officers then cracked the once encrypted Sky application, which was also, according to their claims, dominantly used by criminal groups and individuals.

Based on phone messages from both encrypted programs, thousands of people were arrested across Europe.

Freedom and (or) security

The development of technology and new types of criminality require the redefinition of existing legal frameworks, both at the internal and international level, and the cases of "breaking" the EncroChat and Sky Ecc platforms highlighted these problems in the foreground, throwing the courts in front of the dilemma that Herbert Packer posed In the sixties of the last century, should priority be given to protection from crime or to the protection of citizens' rights, Dr. Vanja Bajović writes in his scientific work "EncroChat and Sky ECC communication as evidence in criminal proceedings".

"While the protection of citizens' rights prevailed for many years, guided by the maxims that "the democracy of a society is measured by the provisions of its criminal procedure" and that "it is better for a hundred guilty people to escape punishment than for one innocent person to be convicted", it seems that in the era of information technology is dominated by the second model, which legitimizes almost unimaginable concepts such as mass surveillance of communications with the derogation of territorial sovereignty, so it seems that the most famous "whistleblower" of today, Julian Assange, was right when he claimed that the Internet is the greatest ever invented spy machine of all time. , says Dr. Bajović.

Recalling Benjamin Franklin's statement that "a society that is ready to give up a little freedom for a little security deserves neither freedom nor security", Dr. Bajović concludes that "the modern era of information technologies is an era in which there is neither freedom nor security".

The Supreme Court cannot comment on the verdict

The Supreme Court cannot comment on the aforementioned judgment of the European Court of Justice, and the judges of this court from the Criminal Division will make a statement regarding Sky communication after the verdicts of the lower courts reach the Supreme Court for review, the News in the Supreme Court was told.

The Supreme Court of Montenegro, they state in this court instance, received the judgment of the European Court of Justice, which refers to the use of Sky as evidence in court proceedings.

Mićović: The judgment will be binding for all countries

After the judgment of the European Court in Luxembourg, lawyers acting in special criminal cases in which Sky communication is evidence addressed the journalists in front of the High Court in Podgorica.

The president of the Bar Association, Danilo Mićović, said that the judgment of the European Court in relation to the Sky application represents a principled legal position and claims that it will be binding for all countries where the Sky application exists in a criminal-legal sense.

He emphasized that the verdict clearly states that encrypted messages intercepted by another country cannot be used as evidence, and that the Montenegrin judicial authorities must act in accordance with that decision.

"Things are clearly defined in the verdict. I will base it on two facts - that the national legislation is applicable and that at the time of obtaining the information via Sky, the state in which it will be used as evidence or operational information had to be informed," said Mićović.

He added that our country was not informed about it.

"As the defenders of the defendants, who have the Sky application as a foundation, I can say that we are in possession of the judgment of the European Court which exactly confirms the allegations of the defense regarding the use of Sky material as evidence", he stated.

Lawyer Andrijana Razić warned that millions of damages will be paid due to the procedures based on Skaj.

"I don't know if the citizens are aware that enormous damage has already been done by the Special State Prosecutor's Office (SDT) and interpretation of legal norms regarding Sky communication. At least they should have stood on the ball. "Imagine when at the level of Europe this question has been debatable for two and a half years and we only now have the judgment of the Court in Luxembourg," emphasized Razić.

She added that these are not ordinary procedures, but SDT with such arrogance dared to make the most spectacular arrests in the country on the basis of Sky. He believes that millions of damages will be paid due to actions based on Sky.

"I'm afraid that in a year or two, possibly three, there will be consequences in the form of public resentment towards them / the prosecutor's office/ when we all have to pay millions in damages, which are already so much, and imagine in two, three years in relation to this number of people who only on the basis of Sky communications, the arrested person is kept in custody for an enormously long time. And all those procedures that will eventually have to result in acquittals", believes lawyer Razić. Lawyer Zdravko Begović said that this is nothing new compared to everything they claimed from the first moment.

"We believed that such information could not be treated as evidence, and most importantly - none of us doubted that something like that could be treated as evidence. We had a consistent attitude that proved to be true and right. This is not pressure on the court, but the need to present to the lay and expert public what the verdict means," said lawyer Begović. He pointed out that national legislation is the only authority for treating such evidence.

"We will continue to fight, we do not see this as a victory, it may last longer... This is a victory for justice," said lawyer Begović in front of the High Court. He added that a large number of defendants are in custody based on this information, and that these detentions are taking an unjustified long time.

Lawyer Damir Lekić said that he has been in possession of the judgment of the European Court since a few days ago. He added that he agrees with his colleagues.

"I had the opportunity to read the complete judgment and today I submitted it to the High Court in Podgorica in a case where all the case files are based on Sky communications. The point here is not that the ruling says that Sky communication cannot be evidence, but the conditions under which it can be used. And it is precisely she who prescribes the conditions that the state of Montenegro did not meet in order for these evidences to be included in the evidence and for them to exist in the criminal proceedings of Montenegro. I believe that the situation will soon change in relation to that evidence, if the court respects the verdict and international law. This verdict is binding for Montenegro. There will be a situation where all ongoing proceedings are unfounded, people are released from detention and charges are dropped. There will be a suspension of proceedings and personal verdicts," Lekić pointed out.