The Court of Appeals has announced key excerpts from the verdict in the case in which Darko Janjić from Nikšić was sentenced to five years in prison for creating a criminal organization and drug trafficking, and according to which evidence collected from the SKY application is legally valid evidence.
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The statement from the Court of Appeal provides quotes from that judgment, explaining the reasons for making such a decision, which has led to conflicting views in the Montenegrin legal system for years on whether evidence from this encrypted application can be used in criminal proceedings.
According to the Court of Appeal, the data obtained through the SKY ECC application represent documents in electronic form submitted to the domestic judicial authority, the Special State Prosecutor's Office, in the procedure of international legal assistance in criminal matters, and this evidence was obtained by the competent judicial authorities in France "on the basis of a lawfully conducted procedure, whereby this evidence was not obtained through violations of human rights and fundamental freedoms constituted by the Constitution and confirmed by international treaties, as previously explained, all of which excludes the existence of legally invalid evidence within the meaning of Article 17, paragraph 2 of the CPC."
"In the appeal, the defense attorney disputes the legality of the messages sent via the SKY ECC application, which were obtained by the competent authorities of the Republic of France, which, upon the request of the Special State Prosecutor's Office dated 07.04.2020, were submitted as an attachment to the act of the Ministry of Justice of the Republic of France No. 2022001332 dated 22.11.2022, and through the Ministry of Justice of Montenegro. This is evidence that was already in the possession of the competent authorities of the Republic of France, and which was obtained based on the request of the Special State Prosecutor's Office. The case file establishes that the submission of evidence to the Special State Prosecutor's Office in the relevant procedure for providing international assistance in criminal matters was preceded by the actions of the competent judicial authority of the Republic of France, the Court of Appeal in Paris, the Court of Justice in Paris, the Cabinet of Brice Hansemann, the Vice President in charge of the investigation, as detailed in the explanation of the first-instance judgment," the statement reads.
It is explained that, when assessing whether the data obtained through the SKY ECC application can be used as evidence in criminal proceedings, the Court of Appeal, as they state, first took into account that they were obtained through international legal assistance in criminal matters, in accordance with the applicable regulations of the Republic of France and based on a decision of the competent judicial authority of that country.
"It follows from the case file that the Special State Prosecutor's Office, by a request dated 07.04.2022, requested the competent authority of the Republic of France to provide international legal assistance in the form of submitting evidence, communications made through the SKY ECC application in a form that can be used before a criminal court, and in connection with the activities of the accused JD as a member of a criminal organization, which were obtained on the basis of decisions of the competent judicial authority of the Republic of France - the Deputy President in charge of the investigation of the Court of Appeal in Paris, the Court of Justice in Paris, Brice Hansemann, on the basis of the national legislation of the Republic of France, which is why the evidence in question, in the opinion of this court, was obtained in a lawful manner. The provisions of French procedural legislation that enabled the competent judicial authorities of the Republic of France to collect the disputed evidence by the defense were the subject of analysis by the Constitutional Council of the Republic of France. According to the position of the Constitutional Council of the Republic of France, explained in detail in Decision No. 2022-987 QPC, dated 08.04.2022, and the content of which is interpreted in "According to the first-instance judgment, the provisions of the French Code of Criminal Procedure regulating the manner of obtaining disputed evidence are in accordance with the Constitution of the French Republic," the Court of Appeal stated.
To assess the admissibility of evidence obtained through international legal assistance, as explained, it is not necessary that the information was obtained in a foreign country in accordance with the provisions of domestic criminal legislation, but that it was obtained in compliance with the law of the state that received it (locus regit actum), as determined by the European Convention on Mutual Legal Assistance in Criminal Matters.
"Considering that the provision of Article 3, paragraph 1, stipulates that the requested party shall, in accordance with the methods provided for by its legislation, execute letters of request relating to criminal cases sent to it by the judicial authorities of the requesting party, which relate to the performance of investigative actions or the submission of evidentiary material, files or documents. Considering that it is established from the case file that the Special State Prosecutor's Office requested legal assistance from the competent authority of the Republic of France, this court, when assessing the admissibility of the disputed evidence, also took into account the provision of Article 1 of the Convention on Mutual Legal Assistance in Criminal Matters between the SFR Yugoslavia and the French Republic of 29.10.1969 October 18, which stipulates that the contracting parties undertake to provide each other with judicial legal assistance in criminal matters under the conditions provided for by this Convention, as well as the provision of Article 15.12.2000 of the United Nations Convention against Transnational Organized Crime of 1 December 3, which stipulates in paragraph 3 that the signatory states shall "to afford each other the widest measure of mutual legal assistance in the investigation, prosecution and judicial proceedings in relation to the offences set forth in Article 1 of this Convention and shall reciprocally afford each other similar assistance when the requesting State Party has reasonable grounds to suspect that the offence set forth in Article 3, paragraph XNUMX (a) or (b), is transnational in nature, and that victims, witnesses, proceeds, instrumentalities or evidence of such offences are located in the requested State Party and that an organised criminal group has participated in the offence, and paragraph XNUMX, point e) states that mutual legal assistance provided in accordance with this Article may also be requested for the purpose of providing evidence, as is the case in this case," the Court of Appeal announced.
Since this is evidence obtained under the provisions of the national procedural legislation of the Republic of France and based on the decision of the competent judicial authority of that state, as explained, and bearing in mind the cited provisions of ratified international conventions which, pursuant to Article 9 of the Constitution of Montenegro, constitute an integral part of the internal legal order and have primacy over domestic legislation, in the opinion of this court, "the disputed evidence obtained in the procedure of international legal assistance in criminal matters is not contrary to the principles of the domestic legal system and generally accepted rules of international law, nor was this evidence presented before the first and second instance courts obtained in a manner that undermines public order in Montenegro".
"The provision of Article 17, paragraph 2 of the CPC stipulates that a court decision cannot be based on evidence obtained through violations of human rights and fundamental freedoms guaranteed by the Constitution or ratified international treaties, or on evidence obtained through violations of the provisions of criminal procedure, as well as other evidence learned from them, nor can such evidence be used in the proceedings. As it has been indisputably established that the disputed evidence by the defense was not obtained through torture or inhuman or degrading treatment, their use in criminal proceedings should be considered from the aspect of the right to respect for private and family life guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the European Convention) and Article 40 of the Constitution of Montenegro, and the right to a fair trial guaranteed by Article 6 of the European Convention and Article 37 of the Constitution of Montenegro," the statement reads.
Based on the provisions of Article 17, paragraph 2 of the Criminal Procedure Code, this court, as announced, finds that the evidence was not obtained through violations of human rights and fundamental freedoms established by the Constitution and ratified by international treaties.
"Regarding the objection of the defendant's defense attorney that this is mass surveillance, it should be noted that in this specific case, this is not a public communications network intended for an unlimited communication group, but on the contrary, in the opinion of this court, it is a limited one, protected from external influences, and thus the surveillance was limited. Namely, the SKY ECC application guaranteed its users complete privacy protection of the content of messages sent through this encrypted application, since messages, both text, voice and photos, were encrypted using the "end-to-end" method, so they could only be read by the sender and recipient, with each user receiving a unique identifier or PIN upon registration, with the proviso that one person could use the same PIN with different usernames. So, it was an encrypted communication platform that allowed users of the application to keep their messages confidential, and in the event of forced access to the application and repeated attempts to enter the password, it was possible to delete the content. The application did not require the user's email address, phone number, or any other personal information to work. The mobile device with the SKY ECC application installed was not available in the regular offer. Given that the accused D. J. charges him with the criminal offense of creating a criminal organization under Article 401a, paragraph 2, in conjunction with paragraphs 1 and 6 of the Criminal Code of Montenegro, which is punishable by imprisonment for a term of 1 (one) to 8 (eight) years, and the criminal offense of unauthorized production, possession and distribution of narcotic drugs under Article 300, paragraph 1 of the Criminal Code of Montenegro, which carries a prison sentence of 2 (two) to 10 (ten) years, and considering the gravity of the consequences and the international character of the incriminated activity, in the opinion of this court, the restriction that the accused suffers due to the infringement of his right to respect for private life, due to the sending of a letter of request by the Special State Prosecutor's Office on the basis of which the disputed evidence that infringed on his privacy was submitted, and previously obtained by the competent authorities of the Republic of France, is proportionate to the achievement of the legitimate aim, the prevention of crime. In reaching the above conclusion, this court had in mind the interpretation of the European Court of Human Rights (e.g. with regard to the surveillance of communications and telephone conversations, judgments Halford v. the United Kingdom, paragraph 44; Malone v. the United Kingdom, paragraph 64), that a violation of the right to privacy is absent in a situation where the State's interference with an individual's right is based on law, if it serves a legitimate aim, one of which is certainly "the prevention of crime", and if it is necessary in a democratic society. Accordingly, as this court has determined that the decisions of the French court were valid because they were in accordance with French national legislation, that they served the interests of criminal proceedings and were necessary given the nature of the need to detect and investigate the most serious forms of crime, this court finds that the acquisition and use of the disputed evidence in the criminal proceedings did not violate the defendant's right to respect for private life because the State's interference was based on law, served a legitimate aim, the prevention of crime and was necessary in a democratic society, which constitutes the conditions for a restriction of this right within the meaning of paragraph 2 of Article 8 of the European Convention, and for which reason the evidence in question cannot be considered legally invalid evidence within the meaning of Article 17 paragraph 2 of the CPC. Also, according to the interpretation of the European Court of Human Rights, the condition of the existence of a legitimate aim will be met when measures are taken to prevent crime, which includes those to secure evidence for criminal prosecution (Nagy v. Hungary, no. submission 6437/02, 20.12.2005. paragraph 26), or to facilitate the investigation of future criminal offences (as established in the PN case v. Germany, no. petition 74440/17, 11.06.2020. g.
In a lengthy address, the court also stated that, in considering the appeals of the defendant's defense counsel that the introduction of the disputed evidence in the criminal proceedings violated the defendant's right to defense, this court proceeded from the standards established in the case law of the European Court of Human Rights when examining whether evidence was obtained in violation of a convention right, whereby only evidence obtained in violation of Article 3 of the European Convention, which is evidently not the case here, automatically leads to a violation of Article 6 of the European Convention (Jalloh v. Germany, paragraph 105).
"Otherwise, the test continues (Bykov v. Russia, paragraph 90), and the quality of the evidence, the importance of the evidence and respect for the rights of the defence are considered in terms of whether the accused was given the opportunity to challenge the credibility of the evidence and oppose its use. In this regard, when determining the fairness of the proceedings, account must be taken of whether the rights of the defence were respected, whether the defence was given the opportunity to challenge the evidence, whereby in respecting the principle of fairness it is important to respect the principle of "equality of arms", which consists of the obligation to provide each party to the proceedings with a reasonable opportunity to present their arguments in the case, and it is considered whether the proceedings as a whole were fair, and thus compatible with the guarantee of a fair trial. The European Court of Human Rights emphasizes in its decisions that in criminal proceedings all evidence must, as a rule, be presented at the main hearing in the presence of the accused, who must have the opportunity to subject it to criticism, because the principle of immediacy is an important guarantee of the fairness of the proceedings (Pitkanen v. Finland, no. 30508/96, from 09.03.2004). Bearing in mind that the case file shows that throughout the proceedings the accused had the opportunity to personally and through his defense attorneys to challenge the credibility of the evidence in question, and that he did so in adversarial proceedings both before the first instance and the second instance court, when the defense attorneys and the accused raised objections to the presentation of the disputed evidence in substance as well as in the appeal allegations, this court finds that the accused and his defense attorneys were given a real opportunity to comment on the presented evidence, the messages transmitted through the SKY ECC application, in adversarial proceedings before the first instance and second instance court, to challenge the credibility of the evidence, oppose its use, and present their arguments, which they did, but in the opinion of this court, the accused and his defense attorneys did not call into question the credibility of this evidence. In addition, this court finds that the reliability and accuracy of this evidence was not called into question in the proceedings, because its authenticity was confirmed by other presented evidence, the statements of the injured party's witness Ž. R. and witness AN, while the decisive facts relating to the identification of the accused DJ, as well as the organizer RM, are confirmed by the content of the presented material evidence, namely the content of the file of the Basic Court in Nikšić K no. 61/20, and the judgment of the Higher Court in Podgorica KS no. 7/20, dated 16.06.2022. Therefore, since the accused's right under Art. 6 of the European Convention and Art. 37 of the Constitution of Montenegro was not violated, they cannot be considered legally invalid evidence within the meaning of Art. 17 paragraph 2 of the CPC," the court states.
The subject of the letter of request of the Special State Prosecutor's Office dated 07.04.2022 was the submission of evidence - SKY communications in a form that can be used before a criminal court, so the Court of Appeal determined that the obtained evidence is considered, by legal nature, digital evidence, documents in electronic form obtained through international legal assistance.
"It should be noted that Montenegrin legislation does not specifically define digital evidence, but they can be classified as documents in electronic form, bearing in mind the provision from Article 142, paragraph 29 of the Criminal Code of Montenegro, which stipulates that computer data, which is also in electronic form, is also considered a document. Evidence in the form of documents, which is also considered computer data, in accordance with the provisions of the procedural legislation of Montenegro, can be obtained by an act of evidence-gathering relating to the acquisition of documents from Chapter VII of the Code, namely by the act of temporary seizure of objects and property gains. Namely, evidence in the form of documents, in accordance with the provisions of the CPC, can be temporarily seized when they can serve as evidence in criminal proceedings in the sense of Article 85, paragraph 1 of the CPC, and seizure, in accordance with Article 85, paragraph 4 in connection with paragraph 1 of the CPC, also refers to data stored in devices for automatic or electronic data processing and media in which such data is stored, which must be submitted to the court upon request. "In accordance with the rules of our procedural legislation, specifically in accordance with the provisions of Art. 355, paragraph 1 of the CPC, among other evidence, evidence in the form of documents is read at the main hearing in order to determine their content, and since in this case we are dealing with documents in electronic form which, in addition to written texts, also contain photographs and voice messages, these documents were read before the first instance court, as well as before the second instance court in the case of text messages, or listened to in the case of voice messages, while the part of the documents relating to photographs was inspected, when the accused and the defense attorneys were given the opportunity to comment on them in adversarial proceedings," the statement states.
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