A surprise decision from the Montenegrin Supreme Court: The results of coded wiretapping are illegal

In an article published in the newspaper VIJESTI, dated 04.12.2024 (authored by Komnen Radeviq), it is announced that, recently, the Supreme Court of the Republic of Montenegro has considered the content of the transcripts of the interceptions of the coded application "ANOM" illegal. This Court has not only concluded that the transcripts do not constitute "evidence" in the ongoing legal process against several defendants, but has also ordered the removal/exclusion of these transcripts from the trial file and their placement in a sealed envelope.

As has been reported in our country's media, in the sensational criminal case that is taking place in the capital of the neighboring country, the charges brought against the defendant Milan Jankovic and other defendants for criminal offenses committed within the framework of the criminal organization are based on data from interceptions of encrypted communications, of the ANOM application, which were submitted by registered mail, by the US Department of Justice, with a letter dated June 28, 2022 and were found on a USB memory stick.

It is widely known that the ANOM application allowed encrypted telephone communications and that it was created by the FBI and the Australian police as part of Operation Trojan Shield with international scope, to combat organized crime, especially in the field of narcotics. So this application was a TRAP set up by the FBI and other police authorities and is said to have been based on the cooperation of a convict. From the technical data it appears that this application preceded the Encrochat and SkyECC platforms and was installed on personalized phones, without other functions. ANOM had an extension in the Balkan countries (Croatia, Serbia, Bosnia and Herzegovina, Montenegro), Austria and beyond, involving about 3000 applicants from the most well-known among the criminal organizations of these countries.

According to the announcement, the representative of the Special State Prosecution Office had claimed to confirm the charges, relying on the data of the transcripts received within the framework of international cooperation, on a USB, but the High Court of the neighboring country has found that the evidence is legally invalid, therefore it has also decided to remove them from the content of the trial file, ordering them to be kept separate from the other written acts of the court file.

More complete details will be made public once we have the officially translated copy of the decision of the Supreme Court of the Republic of Montenegro, but we note that this approach is in line with the jurisprudence of the ECJ (April 30, 2024) and the recent jurisprudence of the ECHR (September 24, 2024) and confirms the position of the defense in the judicial process in the case with the defendant Pëllumb Gjoka etc.

Moreover, as is known, regarding these issues related to the interception of the encrypted SkyECC platform and the unusability of their results received by mail, on a CD, we are also awaiting the verdict of the Constitutional Court.