Legal expert Miloš Vukčević has raised significant concerns regarding the admissibility of data obtained through the “Sky” communication platform in Montenegrin courts. He argues that while some European countries have successfully utilized “Sky” data as evidence, Montenegro lacks the necessary legal and procedural frameworks to validate such information. According to Vukčević, the absence of access to original digital files, metadata, and a reliable chain of custody hampers the ability of both the courts and the defense to verify the legality and authenticity of the data.
Vukčević emphasizes that materials submitted to Montenegrin courts do not meet the standards set forth in the Criminal Procedure Code or the Law on Electronic Documents. This raises critical questions about the integrity of “Sky” messages, which he describes as unverifiable secondary versions rather than robust evidence capable of withstanding forensic and procedural scrutiny.
Concerns Over Evidence Validity
When asked about the reliability of “Sky” data as evidence, Vukčević pointed out that in countries where law enforcement seized servers and decrypted data, such as France and Belgium, guarantees are based on official digital forensics. In Montenegro, however, such guarantees are absent. The original material has not been provided, nor has there been a documented chain of custody or an opportunity for independent forensic examination. Consequently, the defense cannot challenge the integrity of the data, leading to the conclusion that the court lacks a foundation to determine the authenticity of the messages.
Vukčević argues that establishing authenticity for “Sky” data necessitates comprehensive digital forensic evidence, including original hash values, metadata, server logs, and documentation of how the data was obtained. Without these elements, he asserts that it is impossible to verify the legality and reliability of the data presented in Montenegrin courts.
The Legal Framework and Implications
The Law on Electronic Documents in Montenegro stipulates that electronic documents must be verifiable, authentic, complete, and have identifiable sources. Vukčević contends that “Sky” data fails to meet these criteria without original forensic documentation. Countries that accept such data as evidence do so because they possess the original digital materials and documentation regarding their seizure. In contrast, Montenegro lacks these critical components.
Vukčević further explains that while “Sky” communications may serve as useful evidence in jurisdictions with original, verifiable data, they currently hold no substantial evidentiary weight in Montenegro. The inability of the defense to ascertain how the data was obtained or to confirm its legality culminates in a lack of independent forensic verification. As a result, the messages are merely “secondary” or “interpreted” versions that do not meet technical integrity guarantees.
Despite a ruling by the Supreme Court of Montenegro that acknowledged the use of encrypted “Sky” communication as potential evidence, Vukčević maintains that, under the existing procedural laws and European judicial standards, “Sky” communications fundamentally cannot serve as valid evidence. He highlights that the court’s decision was based on specific circumstances of a single case and does not establish general binding procedural standards.
The legal landscape could shift if the ruling were challenged in the Constitutional Court, where it might be overturned if found to infringe upon rights related to defense, the legality of evidence acquisition, and the authenticity and integrity of “Sky” communications.
In conclusion, Vukčević stresses that the crucial problem lies in the unknown methods of obtaining this evidence. In all cases involving “Sky” materials, the defense has been denied the opportunity to examine how the data was collected and whether it adhered to domestic and international regulations. Without the ability to verify acquisition methods, the evidence is, by definition, illicit. Consequently, the Supreme Court’s ruling may not withstand judicial review.
Ultimately, the challenges surrounding the admissibility of “Sky” communications in Montenegro underscore a pressing need for clearer legal standards and enhanced procedural transparency. Without the possibility of verifying the legality, authenticity, and integrity of such evidence, it remains operatively informational rather than legally binding.
