Several lawyers reacted to the text "Encrypted application as evidence for the court in Strasbourg" published yesterday in the Vijesti, and in the same text they also reacted to the statement of the Minister of Justice Bojan Božović, which the Vijesti did not publish.
The response, signed by lawyers Dragoljub Đukanović, Bojana Franović Kovačević, Danilo Mićović, Marko Radović, Miloš Vuksanović, Dalibor Kavarić, Zdravko Begović, Milan Kovačević and Stefan Jovanović, is reported by Vijesti in its entirety:
"For the sake of truthful reporting to the public, we cannot help but react to the latest harsh and inappropriate pressure on the special department of the High Court in Podgorica, as well as on the second-instance department of the Appellate Court of Montenegro, in the way that false news was spread in the media that the Court in Strasbourg decided that the legality of the procedure by which data was collected from encrypted applications could not be examined, which false news was further promoted by the Minister of Justice in his appearance on the show, explaining that it was a similar procedure to the Sky procedures and that he did not want to put pressure on courts, but that he cannot keep silent about such an important fact.
This is exactly how the pressure was applied. On October 17.10.2024, XNUMX, the court in Strasbourg issued a decision, not a verdict, by which it rejects the petitions of the applicants, British citizens, against France, as inadmissible for the reason that all the formal preconditions for examining them on the merits were not met, more precisely because the applicants did not use effective legal means by which the validity of the collected evidence can be contested before the competent authorities of France. Therefore, the petition was dismissed for the reason that no legal remedy was filed challenging the validity of the evidence.
The conclusion published in the media that the validity of evidence related to encrypted applications cannot be questioned due to the principle of mutual trust and that this is the conclusion of the Strasbourg Court is simply untrue. The court in Strasbourg rejected the petition and did not even consider whether the data from the encrypted application is legally valid evidence or not!
For the sake of clarification, in the specific case in question is the enchro chat application, which, in the direction of the argument regarding the authenticity and method of collecting the material, is not comparable to the sky ecc application. According to the data from the decision of the Court in Strasbourg, the data from Enchro chat was subsequently downloaded from the server in France, while in the case of the sky ecc application, the data was "captured" in real time. These are completely different methods and that is precisely why there is not a single criminal case on the territory of the United Kingdom in connection with the sky ecc application for the simple reason that according to the national law of the UK it is not possible from another country in real time to monitor and eavesdrop on UK citizens on its territory .
The UK has refused to prosecute the sky ecc app because the data was not obtained in accordance with national law. Why is this not a topic for the Minister of Justice and national courts, we should all ask ourselves? Further, the data from the enchro chat was obtained through the European Investigation Warrant system in such a way that France, in accordance with the relevant EU Directive, informed the UK what actions it planned to take, to which the UK agreed, all within a special EIN. We emphasize that within the framework of the application of the EU Directive on EIN, there is a principle of international trust in order to be able to conduct joint investigations. However, this principle does not prevent the person affected by the measure from contesting the validity of the evidence obtained under the EIN, as it was falsely presented in the article in the News. Ultimately, the applicants in the Strasbourg Court case primarily complained of a violation of Article 8 (right to privacy) and, in connection therewith, Article 6 (fair trial) in conjunction with Article 13 (effective remedy), which are not arguments on which the defense in the cases related to sky ecc in Montenegro, he based the thesis on the legal invalidity of that material, and in this sense, a deliberate replacement of theses was made with the aim of putting pressure on the judges who these days have to make a decision in several cases on this occasion.
We appeal to everyone in the Montenegrin judiciary to obtain the relevant decisions and judgments of international courts through their departments responsible for judicial practice, and to draw conclusions exclusively by reading the originals of those decisions. We also appeal to all the media in Montenegro to stop spreading fake news and, wanting to believe in their good intentions, check the information before publication with the competent professional services if the topic itself is professional and the journalist does not have the necessary knowledge about it, so that it does not to the spread of fake news. We especially emphasize that we support journalists in their profession, especially in relation to such important topics, but we remind that they have a responsibility in the performance of their work and that the key contribution to the realization of the rule of law is precisely that of the media, which must harmonize their reporting with the highest professional and ethical standards.
We remind the Minister of Justice that the Constitution of Montenegro divides power into judicial, executive and legislative. We also note that the judiciary is independent and must be protected from illegal influences and pressures, and that the Minister of Justice is the first to be called upon to demonstrate this by his example and thus ensure respect for the rule of law."
The answer of the Vijesti szutra journalist.
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