The evidence extracted from the once encrypted Ana communication - is legally valid, according to the Special State Prosecutor's Office (SDT).
They appealed against the decision of the High Court to extract from the evidence the messages that the accused members of that criminal organization sent through that protected phone application from the proceedings against the cross-border drug smuggling group.
Judge Nenad Vujanović in the decision, he stated, among other things, that there is no evidence that the data were collected in a legal manner and referred to a similar decision before the courts of Germany.
"The Special State Prosecutor's Office filed an appeal against the decision of the High Court in Podgorica... dated November 21 of this year, which separated from the file: a USB flash memory with communications from the now decrypted Ana application, delivered by the United States Department of Justice, a translation of certain parts of that communication, from Albanian to Montenegrin language and official notes on the identification of the defendants: DV, BV, SZ, MM, FK, A.Đ. and TJ", stated in the announcement of the SDT.
They explain that they appealed to the Appellate Court due to a significant violation of the provisions of the criminal procedure and an incorrectly established factual situation.
"It is suggested that the decision of the High Court in Podgorica be annulled and the case be returned for re-trial and decision-making, because the evidence that was extracted is legally valid," added the institution he manages. Vladimir Novović.
The High Court previously announced that the Office for International Relations of the USA did not provide the evidence on the basis of which these data and information were collected and 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 is still 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 carried out by order of the court in a criminal proceeding or operational information collected by the police or intelligence services", the decision of the High Court reads.
At the beginning of July 2023, officers of the Special Police Department (SPO) arrested a multi-member group on suspicion of creating a criminal organization and smuggling drugs from Albania, through Montenegro and on to Bosnia and Herzegovina.
"The Special Police Department, by order of the Special State Prosecutor's Office, today deprived MJ, TJ, S.Dj., SZ, A.Dj., FK and MM, B of their freedom, both against them, but also against DV, A.Lj. and NP, who are in prison in Montenegro or abroad, and BV, who is not available to state authorities, filed a criminal complaint for the criminal offense of creating a criminal organization," the special prosecutor announced. Vukas Radonjic June 10, 2023.
At that time, he said that they had previously collected evidence from which the grounds for suspicion arise Martin Janković i Tony Junchai in 2021 and 2022, created a criminal organization, which aimed to smuggle narcotic drugs on the territory of Montenegro, Albania, Serbia, Bosnia and Herzegovina, Croatia and Austria...
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.
Court: How was the data 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 also says that it is unknown what evidentiary actions the competent foreign judicial authority took in deciding on the fulfillment of the prerequisites for providing international legal assistance in a specific case, which, it says, was necessary in order to be able to examine whether the minimum standards for accepting the said evidence as legally valid.
"This is because the provision of Art. 45 of the Law on International Legal Assistance in Criminal Matters of Montenegro decisively stipulates that a procedural action taken by a foreign judicial authority in accordance with its own law will be equated in criminal proceedings with a corresponding procedural action taken by a domestic judicial authority, unless it is in conflict with 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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