The High Court will again decide on the validity of evidence from the decrypted Ana app, in a case against a group accused of cross-border drug trafficking.
This was decided by the Court of Appeal after accepting the appeal of the Special State Prosecutor's Office (SDT) and ex officio overturning the decision of the Higher Court in Podgorica of November 21, 2024.
At that time, a USB flash drive with communications from the now decrypted Ana application, submitted by the United States Department of Justice, a translation of certain parts of that communication from Albanian to Montenegrin, and official notes on the identification of the defendants were removed from the case file. D. V., B. V., S. Z., M. M., F. K., A. Đ. i T.J.
"The Court of Appeals determined that the first-instance decision was made in violation of the provisions of criminal procedure, because there are no reasons for the decisive facts, and the reasons given are unclear and incomprehensible, and mutually contradictory, which is why the contested decision had to be overturned," the SDT announced.
They also state that the Court of Appeal specifically noted "that the first instance court did not provide clear and valid reasons primarily regarding the legality of the operation itself and the assumed control over the Ana platform, i.e. whether it was legal and compliant with US laws and what impact this had on the final decision."
"And all this despite the fact that there is currently no evidence that it was not in compliance with the laws of the country where the server for monitoring encrypted communication via this platform was located, which country is known to be one of the member states of the European Union, as stated by the first instance court. The first instance court does not provide clear and valid reasons regarding the above, nor what impact the fact that the competent US authorities obtained data on such communication using international legal assistance provided by a member state of the European Union, for which at this stage of the proceedings there is no evidence that it did not comply with its national legal procedure and that it did not obtain a valid court order to copy data from this platform," the prosecutor's office added.
The SDT appealed the judge's decision. Nenada Vujanović, which in its decision, among other things, stated that there was no evidence that the data had been collected lawfully and referred to a similar decision before the courts of Germany.
He said at the time that the US Office of International Affairs had not provided evidence on the basis of which this data and information was collected and sent to the local Special State Prosecutor's Office of Montenegro.
"That is, without any indication of the prior 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' that delivered the messages to the Federal Bureau of Investigation (FBI), in order to be able to credibly verify how and on whose order the aforementioned data were collected in the third country and how the FBI obtained the data presented in the indictment in question... Therefore, from the content of the responses to the letters of request 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 still remains unclear whether there was a court order from that third country to remove the data from the server, and it is also impossible to examine the legality of the procedure by which the aforementioned data was obtained, i.e. whether the acquisition was carried out pursuant to a court order in criminal proceedings or operational information collected by police authorities or intelligence services," the High Court's decision states.
The Court of Appeal specifically noted that the first instance court did not provide clear and valid reasons primarily regarding the legality of the operation itself and the assumed control over the Ana platform, i.e. whether it was legal and compliant with US laws and what impact this had on the final decision"...
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.
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.
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