The Appellate Court of Montenegro overturned the first-instance verdict against the suspects for planning the murder of Marko Ljubiša Kan, a member of the Škaljari criminal clan, at the beginning of 2021 in Budva. The case – the first in which communication from the once protected SKY application was used as evidence – was thus sent back to the Special Department of the High Court in Podgorica for retrial.
In the reasoning of its decision, the Appellate Court stated that the verdict contained significant violations of the provisions relating to the criminal procedure:
“The disposition of the disputed verdict is incomprehensible, contradicting both itself and the reasons for the verdict; it also contains no reasons for the decisive facts, while the reasons given therein are completely unclear and to a considerable extent contradictory…”.
The part of the verdictt concerning the SKY communication is disputed as well.
“The appeals of the defendants’ attorneys justly indicate that the impugned judgment is affected by significant violations of the provisions of the criminal procedure under Article 386, paragraph 1, item 9 of the Criminal Procedure Code, as well as the part of the conclusion of the first-instance court that refers to SKY ECC communication, because in that part the impugned judgment does not contain clear, reasoned, sufficient and valid reasons for the admissibility or inadmissibility of said evidence (acquisition, legal nature, compliance with the principles of the domestic legal system and generally accepted rules of international law).”
In 2023, in the case of the defendant former police inspector Božidar Stolić, the Appellate Court in Belgrade also found that the first-instance court did not adequately explain the verdict in terms of the SKY ECC communication. In the second first-instance verdict, the Special Court in Belgrade convicted Stolić once again, reasoning that the evidence obtained through the SKY ECC application can be used as evidence when it relies on other evidence, and that a court verdict cannot be based on it alone.
The first final verdict in the region that confirmed that SKY communication can be used as legal evidence in criminal proceedings was issued in October 2024 in Croatia. It came after the European Court of Justice ruled, in April, that information from encrypted applications can be used if supported by other evidence.
As a reminder, the higher courts, the appellate courts and the Supreme Court in Montenegro have already been accepting SKY communication as evidence, but only in cases involving the determination and extension of detention.
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