Evidential significance of information from communications obtained by encryption application/modified devices: Such as Sky ECC and EnchroChat

Abstract

In the article is presented one view of information and potential evidence from communication, obtained using special devices and applications for encryption of communication. In particular, the phenomenon of the Sky ECC application is explained, which is not only the most commented on in the media, but is current in a whole series of current criminal proceedings, especially in the sphere of organized crime, both in Serbia and throughout Europe, but also in the world in general. After analysing the basic evidentiary rules in the positive criminal procedural legislation of Serbia, which in principle could be important when it comes to the evaluation of the evidentiary credibility of information derived from communication made with special applications for encryption of conversations, in the article are explained relevant examples from the comparative judicial practice of a number of European countries. Very current cases of this type that were resolved in Serbia were also explained. The practice of the European Court of Human Rights, which concerns the possible violation of the right to privacy due to the interception of communications made with special applications, was also analysed. Special attention was given to the opinion of the General advocate who acts before the Court of Justice of the European Union in relation to a series of questions that the Regional Court in Berlin put to that court, which concern the information resulting from the application of the European investigative warrant, which was previously obtained in France by a special operativetactical ways to collect data from communications encrypted by the EnchroChat application. In conclusion, it is emphasized that there is no miracle recipe that will absolutely solve all evidentiary problems that arise or may arise when dealing with information from communications made with special applications for encryption of conversations. The time in which the future judicial practice will be implemented (the basic contours of which can already be seen relatively clearly), and above all the positions of the highest courts of specific countries, including the positions of the Serbian courts, will show the real importance and the degree of relevance of a number of factors, which could in principle have an impact on the evidentiary credibility of such information/evidence. Of course, such judicial practice, as usual, the practice of courts in the legal environment of the rule of law, must arise in legally and fairly conducted criminal procedures.