Extrajudicial panel of the High Court in Podgorica, chaired by a judge Nenad Vujanović, made a decision by which it excluded numerous evidence of communication from the encrypted communication with Ana from the case file as legally invalid, in the process of controlling the indictment against Milan Janković and other defendants for creating a criminal organization,
Those transcripts were submitted to the court, along with the indictment, by the Special State Prosecutor's Office (STP).
"The court found that the evidence stated in the enacting clause of this ruling is legally invalid, so it made a decision that before making a decision on the justification of the indictment in question, it should be removed from the case file, and that according to the validity of this ruling, it should be sealed in a separate envelope and handed over to the judge for investigation to be kept separately from other case files, and they cannot be viewed or used in the proceedings. Only after the final decision on the aforementioned previous issue, which must be decided at this stage of the procedure, will the court be able to examine the merits of the indictment", the explanation of the decision states.
The document explains that the Office for International Relations did not submit the evidence on the basis of which the collected data and information were sent to the Special State Prosecutor's Office of Montenegro:
"That is, without any indication of the previous procedure within which the submitted data and information were collected, as well as the acts, primarily the order of the competent judicial authority of the 'third country' which also delivered the messages to the Federal Bureau of Investigation (FBI), so that it could be verified in a credible way how and on whose order was the said data collected in a third country and how did the FBI obtain the data presented in the indictment in question... So, from the content of the response to the interrogatories of the competent judicial authorities of the USA, it follows that the identity of the third country that obtained the communications and delivered them to the competent authorities of the USA will remain unknown in the future, so it remains unclear whether there was a court order of that third country to exclude the data from the server, and it is impossible to investigate and the legality of the procedure by which the said data was obtained, i.e. whether the acquisition was made by order of the court in a criminal proceeding or operational information collected by the police or intelligence services," the decision reads.
Defendant Janković's lawyer, lawyer Nikola R. Ivanovic he told Vijesti that in that court proceeding, a hearing was held for the second time to control the indictment.
"The defense pointed to the decisions of the courts in Germany and demanded the separation of such evidence and the suspension of the proceedings. During the second review of the indictment, the court granted the requests of the defense attorneys and separated the 'Anom' correspondence from the case file, i.e. delivered to 'Anom' material", said the lawyer.
In the decision, it is explained that legally invalid evidence - a USB flash memory containing communications from the encrypted application Ana, which were submitted with a letter from the US Department of Justice dated June 28, 2022 - was extracted from the case file.
"Which were submitted with attachments in response to the request of the Special State Prosecutor's Office dated April 20, 4. Translation of separate communication on the Anom platform from Albanian to Montenegrin, which was made between users of the Woulditp and Hislungs platforms. Official notes of the Police Administration on the identification of users of the Anom application - Darko Vukčević, Bozidar Vukčević, He saves Zlaticanin, Milan Milović, Filip Krstonijević, Alen Doljević, Tony Yunchai. According to the finality of this decision, the separated evidence will be closed in a special envelope and given to the investigating judge of this court for safekeeping, separately from other files and cannot be viewed or used in the proceedings", the decision reads.
The representative of the prosecution, the special state prosecutor, stated that she fully supports all the evidentiary proposals described in the indictment and suggested that it be confirmed.
Anom was a phone communication application that was created as part of an international police operation to fight organized crime.
It was initially presented as a security platform for encrypted communication, similar to applications like EncroChat or Sky ECC, which were popular among criminal organizations for their encryption and supposed privacy.
Anom, however, was unique in that it was secretly developed by the US Federal Bureau of Investigation (FBI) and Australian police as part of Operation Trojan Shield, and was pre-installed on custom phones with no other functionality (such as calls or plain text messages) and distributed through criminal networks. network through confidential sources.
The court found that the evidence was legally invalid, so it made a decision to remove it from the case file before making a decision on the justification of the indictment in question. Only after the final decision on the aforementioned previous issue, which must be decided at this stage of the procedure, will the court be able to examine the merits of the indictment," the explanation of the decision states.
How the data was collected
As in the proceedings before the courts of Germany, in this proceeding it remains unknown which third country collected the data from the Anom application, how it did it, whether it was followed by an order issued by the competent judicial authorities of that country in criminal proceedings, and whether it done in accordance with the procedural and material legislation of that country, according to the decision of the High Court.
It is also stated that it is unknown what evidentiary actions the competent foreign judicial authority undertook in deciding whether the prerequisites for providing international legal assistance in the specific case were fulfilled, which, it says, was necessary in order to be able to examine whether the minimum standards for the acceptance of said evidence were met. as legally valid.
"This is due to the fact that Article 45 of the Law on International Legal Assistance in Criminal Matters of Montenegro decisively stipulates that the procedural action taken by a foreign judicial authority in accordance with its law will be equated in the criminal procedure with the corresponding procedural action taken by the domestic judicial authority authority, unless it is contrary to the principles of the domestic legal system and generally accepted rules of international law. In terms of that article, it is necessary for this court to dispose of all the documentation related to obtaining the said evidence issued by the requested state, in order to create a clearer picture of the legal validity of the said evidence in terms of the cited legal provision".
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