The Special Department of the High Court in Podgorica, which hears cases of organized crime, corruption and war crimes, entered the year 2024 with 143 cases, and in most of them, the prosecution submitted encrypted communication with Sky ECC (Skaj) as evidence.
Neither the High Court nor the Special State Prosecutor's Office (SDT) answered the question Center for Investigative Journalism of Montenegro (CIN-CG) how many indictments contain that type of evidence before the Special Division of the High Court.
The High Court, in the confirmed indictments, concluded that the evidence from the Sky application was collected through international legal aid, according to the written orders of the Court of Appeal in Paris, in accordance with French law and that it is therefore valid evidence. According to the Law on International Legal Assistance in Criminal Matters, it is not crucial whether the evidentiary action conducted in France according to French law could be ordered in Montenegro.
The High Court also takes the position that the interception of that communication does not represent a significant invasion of privacy that could be misused, because it was established that the Sky application was used for illegal activities. They also point out that there are no reasons why this evidence should not be admissible in Montenegro in the indictment control procedure.
Recently, the first first-instance judgment was passed in our country, in which Sky communication was accepted, but with other evidence.
Experts contacted by CIN-CG state that the final decisions will be made at the main hearings, depending on how well the accusations, in addition to Sky, are supported by other evidence.
The answer to the question of the legality of evidence obtained through encrypted communications can only be given by the court, former judge Valentina Pavličić points out for CIN-CG.
The prosecutor claimed that they had other evidence
According to the practice of the European Court of Human Rights (ECtHR), it is very important whether the challenged evidence is the only evidence on which a specific conviction is based or is supported by other material evidence, says Pavličić, who until recently represented Montenegro before the court in Strasbourg.
Ever since the Schnek v. Switzerland case from 1988, the court in Strasbourg considers that the use of evidence obtained by violating the right to privacy does not make the proceedings unfair, provided that the disputed evidence is not the only one on which the conviction is based.
The SDT did not answer CIN-CG's questions about whether the accusations are based on other evidence, and whether Sky communications are available to the defense and at what stage of the proceedings. For the fairness of the proceedings, it is also necessary for the defense to have insight into the evidentiary material, as well as into the communication via the sky application.
Special State Prosecutor Miroslav Turković claimed that all the indictments based on the Sky correspondence were also based on other evidence. He stated this at the meeting of Action for Human Rights (HRA), where the validity of Sky communication in court proceedings was discussed.
Europol accessed hundreds of millions of messages, and part of that documentation related to Montenegro was also sent to our investigative bodies in mid-2021. At that time, Milivoje Katnić was the head of the SDT. His "right hand" special prosecutor Saša Čađenović suspended the proceedings against the policemen Ljubo Milović and Petr Lazović, even though he had in his hands the Sky correspondence of the two, which shows their connections with organized criminal groups, gathered around the Kavačac clan. Prosecutor Čađenović, after Katnić's dismissal, was accused of cooperation with the Kavački clan. Milović is on the run, Lazović is in custody, and proceedings have been initiated against both of them.
By filing indictments against persons from the top of the police and judiciary, Chief Special Prosecutor Vladimir Novović ended the earlier practice of ignoring this type of evidence.
Communication from encrypted devices is not done through mobile operators, but through applications, which provide message encryption. They do not contain a camera, microphone and GPS, messages are automatically deleted after some time, and there is a special button for deleting content from the phone. Possession of the device was not prohibited, and a reward of four million dollars was even offered to anyone who managed to decode Sky.
In March 2021, the police of Belgium, France and the Netherlands succeeded in "hacking" Sky. Sky Global CEO Jean-Francois Eap and former Sky Global device distributor Thomas Herdman have been charged in the US with participating in criminal activities for selling encrypted devices.
Give the defense an opportunity to challenge the evidence
The defense lawyers, among other things, object to the communication with the Sky application being evidence in the proceedings, claiming that it is operational data, that it was obtained through mass surveillance and that the method of obtaining it is unknown. Some lawyers point out that the data was obtained through a criminal act, because the investigative authorities of another country "hacked" to obtain the evidence. However, France allows these investigations. The defense also assesses that it is possible to change these data, so their reliability is questionable. Due to the use of sky communication in court proceedings, some lawyers protested in front of the High Court building last year.
HRA director Tea Gorjanc Prelevic points out that the authenticity and reliability of such evidence should be determined, and for that it is crucial to enable the defense to effectively dispute this evidence.
"It is good that the State Prosecutor's Office tries to confirm the authenticity of the evidence obtained from that application with other evidence, because it contributes to the verification of their reliability".
HRA Director adds that a distinction should be made between legality and reliability of evidence:
"If the evidence from the Sky ECC application obtained from France is legal and there is no doubt that the content of the communication was subsequently modified in any way, this still does not necessarily mean that the data exchanged between the users of the application is correct".
According to Pavličić, the European Court of Human Rights emphasizes that, as a rule, in criminal proceedings, all evidence must be presented at the main trial in the presence of the accused, who must have the opportunity to subject it to criticism.
"Based on the case of Stojković v. Belgium and France, 'there is an obligation to take the objections of the defense into account, to consider them and to respond to them.' National courts must not ignore these issues," says Pavličić.
She clarifies that, however, the right to reveal evidence is not an absolute right - in some cases it may be necessary to deny the defense access to certain evidence, in order to preserve the fundamental rights of another individual or to protect an important public interest.
"Access to certain data can be denied if it is necessary - in order to protect some important public interest, such as the protection of state security, the need to protect a witness who could be seriously endangered due to testifying, or not to reveal police investigative methods", adds the director of HRA.
It is debatable, however, whether the defense can effectively challenge the legality, authenticity and reliability of the evidence if there is insufficient information about how the evidence was collected.
The views of the European Court of Human Rights, adds Gorjanc Prelevic, give France the right not to reveal the details of the operations in which communications with EncroChat and Sky ECC were obtained:
"All this was pointed out by the Dutch Supreme Court when, on June 13, 2023, it took the position that this communication can be used as evidence in criminal proceedings."
Therefore, at least as far as the European Court of Human Rights is concerned, it is possible that the right to a fair trial will not be violated even if the defense is not able to find out how the police operation was technically carried out in which communication from the Sky application was obtained, the director of the HRA points out. .
"By the way, the prosecution doesn't know that either, and not only in Montenegro, but also in other countries where indictments were raised based on this kind of evidence."
If the court and the prosecution did everything they could to determine the relevant facts and did not deny the defense access to the data they have, it would be difficult to claim that they violated the defense's right to "equality of arms", concludes Gorjanc Prelevic.
Accepted Sky, but not as the only evidence
In the proceedings for planning the liquidation of Marko Ljubiša, known as Khan, the panel of High Court judge Vesna Kovačević decided to convict the defendants of creating a criminal organization, accepting Skaj as one of the evidence. At the sentencing, the judge confirmed that the evidence from Sky Communications was obtained through international legal aid:
"SDT's request was sent to the competent authorities of France. The competent French judicial authorities delivered them to the competent authorities of Montenegro", said Kovačević.
She added that the court gave primacy to the public interest, compared to the private one, given that it is one of the most serious crimes in Montenegrin legislation.
It remains to be seen how the court will value the evidence in some of the most significant cases, based on Sky communications, against police officers Petar Lazović, Ljub Milović, Dejan Knežević, Veselin Veljović, Budva mayor Milo Božović, prosecutor Saša Čađenović, former president of the Supreme Court Vesna Medenica and her son Miloš Medenica...
In the indictment against the former president of the Supreme Court, in addition to the messages collected through the Sky application, it was proposed to hear more than 20 witnesses and present other evidence.
The indictment states that from the content of communications via the Sky application, telephone communications between judges, witness statements, but also from the content of court case files in Montenegro, there is a suspicion that Vesna Medenica committed criminal acts of illegal influence and abuse of official position through incitement - that render judgments in favor of the companies "Fab live", "Cijevna commerce" and "Carine".
It is added that, in this case, the communication from the Sky application was exempted through the competent judicial authority of France, "submitted by the Court of Appeal in Paris, according to the requests of the SDT".
Comparative practice is essential
Before the court in Strasbourg, there are still no petitions related to the use of evidence in criminal proceedings collected through encrypted communication.
Pavličić clarifies that the court in Strasbourg does not decide whether concrete evidence, including that obtained illegally, may be used in proceedings before domestic courts:
"The European Court only pronounces on whether the procedure as a whole, taking into account the way in which the evidence was obtained, was fair".
The director of HRA explains that the comparative practice of other countries does not bind Montenegro (in contrast to the views of the European Court which bind it), but it can be relevant and judges are likely to be interested.
"Since in proceedings across Europe the legality of using communications downloaded from the Sky ECC and EncroChat applications is valued in relation to the right to a fair trial and the right to privacy, which binds Montenegro as well, it would not be surprising or illogical if domestic courts refer to the practice of other state and see how they interpret the Convention for the Protection of Human Rights", explains Gorjanc Prelevic.
In many European countries, court verdicts have been issued in cases where encrypted communications were used as evidence. Over 90 percent of users of Encrochat, an app similar to Sky, were found to be linked to organized crime groups.
Courts in Germany, the Netherlands, and Norway have concluded that the legality of the actions of the investigative authorities of another country should not be assessed, but that international principles of trust and recognition should be adhered to. Only in Italy was this principle called into question, but that decision was made because the prosecution submitted Europol's operational data as evidence, and not evidence submitted by the court of another country.
In July of last year, the Court of Appeal in Serbia overturned the first-instance verdict by which the Serbian inspector Božidar Stolić was sentenced to two years in prison, due to accusations that he misused his official position to reveal information about the investigation being conducted against members of the criminal group Veljko Belivuk and Marko Miljkovic. Part of the evidence in this case related to Sky communication. The Court of Appeal then stated that the first-instance authority did not sufficiently argue the reasoning regarding the use of the Sky application. Recently, according to Serbian media, a retrial began, where the court accepted the defense's proposal to provide them with all encrypted communications of the accused, not only the part that incriminates them.
Insufficiently explained decision of the courts in Turkey
The only practice of the European Court of Human Rights in Strasbourg related to encrypted communications are the cases against Turkey, CIN-CG Pavličić confirmed.
From the report of the European Court for last year, it can be seen that in the case of Yuksel Yalcınkaya against Turkey, a violation of the right to a fair trial was established. It is a multi-year prison sentence for membership in a terrorist organization based on the use of the By lock encrypted messaging application. Domestic courts found that the application was designed for the exclusive use of members of a terrorist organization.
What was the main objection of the court in Strasbourg was that the data from the encrypted application was not given to the applicant.
“Domestic courts have not provided reasons for non-disclosure, nor has the applicant's request for an independent examination of the data or his concerns regarding its reliability been answered; the applicant was not given the opportunity to familiarize himself with the decrypted ByLock material, which would represent an important step in preserving the right of defense," the report of the court in Strasbourg reads.
Also, the court did not sufficiently justify the claims that the application could not be used by anyone who is not a member of a terrorist organization.
Pavličić points out that in another case against Turkey, which refers to the use of the same application, the European Court decided that the mere fact of the existence of the installed ByLock application is not enough for a well-founded suspicion to order detention, but there must be some other evidence in order to work at all on reasonable suspicion.
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