WORLD NEWS FOR MONTENEGRO DIASPORA
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SOURCE - POBJEDA
The European Court of Justice took the position according to which the data obtained by monitoring and decoding encrypted communications from the EncroChat platform and according to which system the Sky ECC platform also functioned, can be used as evidence in court proceedings when the domestic law, the law of the country where the trial is being held and provided that the country has been notified of the measures to intercept messages against its citizens.
The decision of the European Court of Justice of April 30 confirmed the position of Montenegrin lawyers that the communication from the encrypted Sky ECC application cannot be used as evidence before the Montenegrin judiciary, because it was obtained illegally, in violation of a number of international regulations and domestic laws, and in addition, it was selected on way susceptible to manipulation.
Commenting on this verdict for Pobjeda, lawyer Damir Lekić said that our courts should now proceed according to the judgment of the European Court of Justice and start to exclude SKY evidence from the file as legally invalid, and to abolish certain or extended detentions, and that depending on the stage of the proceedings courts suspend proceedings in SKY cases, and state prosecutors abandon criminal prosecution.
The European Court considered the issue of the validity of encrypted communications over the Encrochat network at the request of the Berlin Court in Germany.
On October 19, 2022, the Berlin Court in Germany turned to the European Court of Justice to clarify how it should handle the conversations of Encrochat and SKY encrypted networks, portalVox news.al. (Albania) writes.
This portal states that the Berlin court has asked the European court to take a position regarding the application in different EU countries of the transcripts of the interception of communications from the Encrochat platform that were "intercepted" by the French authorities through a technical device that infiltrated Internet-based communication traffic .
In its decision, the European Court confirms the principle of mutual recognition of court decisions of member states, calling this principle a "cornerstone" of judicial cooperation in criminal cases, but requires that the evidence sent by the French court through the European Criminal Investigation Order should be verified by judicial authorities. of other countries in the sense of whether the encrypted communications were obtained in accordance with the domestic legislation and principles of law of the country to which the evidence was submitted, writes Voxnews.
The Grand Chamber of the ECJ clearly defined that the penetration of terminal devices, the aim of which is to extract data on traffic, location and content of conversations carried out by a communication service based on the Internet, constitutes "interception of telecommunications".
- The Court of Justice of the EU establishes a deeper protection of these rights because, interpreting Article 14(7) of the Directive, it imposes on the national criminal judge that, within the framework of criminal proceedings initiated against a person suspected of criminal offenses, he does not consider the obtained information as evidence, if the suspect and his defense have not been given the possibility to effectively defend this information or effectively present one's observations, which significantly affects the assessment of facts - the aforementioned portal states.
Based on the criminal processes conducted in Albania, the results of the interception of the conversations of the suspects as users of the SKY ECC platform Encrochat, although they arrived by mail from the French judicial authorities, cannot be used to justify the detention and trial of these people.
This is because the transcripts are the result of mass interception, which was achieved by disrupting the flow of conversations of all interlocutors, violating the provisions of Albanian procedural legislation and disregarding constitutional guarantees for the secrecy of correspondence as well as any other means of communication.
With this decision, the European Court of Justice obliged the judiciary of each member state to exclude the use of transcripts if the method of their collection is not transparent, i.e. if
along with the communications, the decisions of the French court on extending the deadlines of these interceptions and if possible verifying the authenticity of the interception results were not submitted.
The judgment recalls that the French police, with the help of Dutch experts and the authority of the French court, succeeded in infiltrating the EncroChat encrypted telecommunications service.
The service was used worldwide on encrypted mobile phones for the purpose of illegal drug trafficking. The German Federal Police gained access to intercepted data related to EncroChat users in Germany through Europol's server. Based on the EIO (European Investigation Order) issued by the German Public Prosecutor's Office, the French court approved the transfer of that data and its use in criminal proceedings in Germany.
The Berlin Regional Court, before which the criminal proceedings were conducted, questioned the legality of those EIOs. Therefore, he submitted a series of questions to the European Court of Justice for a preliminary decision on the Directive on EIO in criminal matters. The answer given by the European Court of Justice is that the EIO for the transfer of evidence that already are in the possession of the competent authorities of the executive state (in this case France) does not necessarily have an order from a judge.
The order can be issued by the public prosecutor if he is authorized to order the transfer of evidence that has already been collected in a purely domestic case.
The fact that in this case the French authorities gathered evidence in Germany and in the interest of their German colleagues is, in this respect, in principle irrelevant. However, the court before which proceedings are initiated against that EIO must be able to review the compliance with the fundamental rights of the actors of the communications. .
The European Court of Justice also emphasizes that the member state in which the subject of the measure is located (in this case, Germany) must be notified of a measure that involves the infiltration of terminal devices for the purpose of collecting traffic, location and communication data of an Internet-based communication service. The competent authority of that member state then has the right to indicate that the wiretapping of telecommunications cannot be carried out or must be terminated, if it would not be authorized in a similar domestic case.
The ECJ states in its judgment that the existing framework for gathering evidence is too fragmented and complicated and that a new approach is necessary.
This court points out that the Stockholm Program adopted in December 2009, which established a comprehensive system for obtaining evidence in cases with a cross-border dimension, based on the principle of mutual recognition, should still be followed, but that a new approach is needed in this area.
- The creation of an area of freedom, security and justice within the Union is based on mutual trust and the assumption that other member states adhere to Union law and, in particular, fundamental rights. However, that assumption is rebuttable. Accordingly, if there are substantial reasons to believe that the execution of the investigative measure indicated in the EIO would result in a violation of the suspect's fundamental right and that the executing state would neglect its obligations regarding the protection of fundamental rights recognized in the Charter [on Fundamental Rights of the European Union ("Charter") ], the execution of the EIO should be refused - the judgment states.
This decision of the European Court states the fact that the data of the EncroChat service was not provided by the telecommunications operator based on the administrative order of the German authorities, but was collected directly by the French law enforcement authorities, which increases the violation of the basic rights of users of the EncroChat platform.
