After the decision of the European Court of Justice (ECJ), which determined the criteria for the admissibility of evidence obtained from conversations from encrypted networks Encrochat and SKY, the Regional Court in Berlin made a decision on the inadmissibility of such evidence in criminal proceedings. This is just another of the decisions that followed the decision of the European Court of Justice.
The decision of the ECJ states that such evidence could only be used when the domestic law, the law of the country where the trial is being held is first respected and provided that the country has been notified of measures to intercept messages against its citizens.
Thus, the court in Berlin, in the proceedings against the defendant MN, acquitted him on all counts of the indictment, with evidence based on EncroChat communications, and lawyer Lejla Čović believes that this is a very significant decision because it directly relates to court proceedings in Bosnia. and Herzegovina.
– On December 19, the court in Berlin, in a case known as MN and in which the proceedings are based on evidence concerning the so-called EncroChat communications, made a decision acquitting the defendant on all counts of the indictment. This is a very important procedure, therefore a very important decision. The decision of the Berlin Court was expected after the decision of the European Court of Justice in Luxembourg. It was adopted based on the request of the court in Berlin, which asked for clear guidelines when deciding on the admissibility of evidence from the Enchrochat application, i.e. the so-called encrypted communications. The court in Berlin only applied the decision of the European Court, as a higher court, and accordingly acquitted the accused of all charges. The defense before the Court of Bosnia and Herzegovina all the time emphasized the same arguments about the inadmissibility of such evidence and in the same way as the European Court established – says Lejla Čović.
Our well-known lawyer reminds that similar decisions have been made in several countries of the European Union.
– In their decisions, all those countries followed the instructions of the European Court of Justice on the inadmissibility of such evidence, given that the various legal criteria necessary for the use of such evidence in court proceedings were not met. If our domestic courts do not allow the legality of actions taken by other countries to be challenged and if they do not allow access to complete evidence and original material, it will be an absolute and gross violation of the right to defense and thus a violation of international law. The basic right of the defense is to have the possibility to review the legality of all evidence, including evidence from encrypted applications, as determined by numerous decisions of the European Court of Human Rights in Strasbourg, and specifically by the decision of the European Court of Justice regarding encrypted applications. Domestic courts must provide the defense with access to the original evidence collected in foreign countries, because, otherwise, there will be a violation of the right to defense guaranteed by Article 6 of the European Convention on Human Rights – Čović is categorical.
A joint international team (France, Italy, Germany, the Netherlands and Montenegro – Joint Defense Team) was established in order to more easily monitor the events in all countries that have this type of case, and, as our lawyer points out, Bosnia and Herzegovina will be happy to join such a team. .
– We defense attorneys in encrypted application cases are in constant contact with colleagues from European Union countries, as well as colleagues from countries in the region, we exchange case law, and the help of lawyers from Germany and the Netherlands, who were the first to make decisions in encrypted application cases, is especially useful. I must point out that a colleague from Montenegro recently gave us a very important decision of the Appellate Court in Podgorica, which refused to use the evidence from the encrypted application Anom in the court proceedings conducted before that court. Such a decision resulted from the practice of German courts, which act in an identical manner, from which it is evident that the courts in the region, whose countries are not yet members of the EU (as well as BiH), act in accordance with the judicial practice of European countries. I believe that the courts in Bosnia and Herzegovina will act in the same way as their colleagues in Germany, the Netherlands and other countries of the European Union, and especially according to the practice of the courts in Montenegro, which have an identical legal system. All these decisions confirmed the position of the defense, which is that the evidence from the encrypted SkyEcc and Anom applications is only operational information, and by no means evidence that can be used as such in court proceedings – Čović underlined at the end.
