N6.T2 – Court Ruling: Sky and Anom App Communications Recognized as Legally Valid Evidence in Montenegro
HRA NEWSLETTER 6 – TOPIC 2
The Appellate Court of Montenegro has determined that communications from the Sky and Anom apps are legally valid evidence in two important cases.
In the first case, the court upheld the conviction from the High Court in Podgorica, which was based on evidence obtained through international legal assistance from the Sky app. Following the conviction, Darko Janjić from Nikšić was sentenced to five years in prison for his involvement in a criminal organization that was planning the murder of Željko Radulović and for drug trafficking. The Appellate Court confirmed the High Court’s judgment, stating that the evidence from the once-protected Sky app was supported by both material and personal evidence.
“The Appellate Court concluded that the Sky communications were legally acquired through international legal assistance in criminal matters, in accordance with the applicable laws of France and based on the decision of the competent judicial authority of that country. This aligns with the European Convention on Mutual Legal Assistance in Criminal Matters of April 20, 1959, and the United Nations Convention Against Transnational Organized Crime of December 15, 2000,” stated the court’s reasoning.
The court further explained, “The defendant and his defense attorneys were given a genuine opportunity to challenge the validity of the Sky communication evidence in an adversarial process before both the first-instance and appellate courts. They disputed its credibility, objected to its use, and presented their arguments. However, in the opinion of this court, they did not sufficiently raise doubts about the credibility of this evidence.”
In the second case, the Appellate Court ruled that evidence obtained through the Anom app could be used in the judicial process against an eleven-member criminal group allegedly formed by Milan Janković from Bar and Toni Junčaj from Tuzi, as claimed by the Special State Prosecutor’s Office. The court accepted the appeal from the Special State Prosecutor’s Office and rejected the defense’s request to exclude the Anom app communications from the case files as legally invalid evidence.
“To exclude certain evidence, the Appellate Court believes it must be certain that the evidence is legally invalid, as defined in Article 17, Paragraph 2 of the Criminal Procedure Code. This was not the case here. The United States obtained the communication data using international legal assistance from an EU member state, and there is no evidence in the case files to suggest that the national legal order of that country was not respected or that they did not have a valid court order to access the data from the Anom app.”
In January, the High Court in Podgorica had previously ruled to exclude communication evidence obtained through the Anom app, citing concerns about the identity of the foreign country that acquired the communications and provided the data to U.S. authorities. The court noted, “It is unclear whether there was a court order from that country to retrieve data from the server, making it impossible to examine the legality of the procedure by which the data was obtained.”
However, the Appellate Court clarified that “the Montenegrin prosecution authorities obtained this data through a request for mutual legal assistance and included it as evidence in accordance with Article 45 of the Law on International Legal Assistance in Criminal Matters. According to the legal understanding of this court, there is no reason to doubt the legality of the procedure in the country of acquisition, nor is there any basis to conclude that this evidence cannot be used in the case.”
These decisions by the Appellate Court mark the first rulings confirming that communications from previously protected apps, obtained through international legal assistance, are valid evidence in the fight against organized crime. It is critical that the communications were lawfully obtained in accordance with the procedures of the country where they were acquired, as established in both cases. Furthermore, it is important to note that these communications are not the sole basis for the convictions, and the defense was given an opportunity to challenge their credibility.
English