
Vanja Bajović, Ph.D.
Associate Professor of the Faculty of Law, University of Belgrade
The development of digital technology renders the existing constitutional and legal provisions meaningless while they still speak of "surveillance and confiscation of letters and other parcels", even though the world has already moved from letters, postcards and greeting cards to e-mails and digital greetings, from landline phones to mobile, from SMS messages to Internet-related communication platforms such as Viber, WhatsUp and Telegram, and in recent years there has been more and more talk about encrypted devices that guarantee the secrecy and security of communication. These devices have come under public scrutiny after the discovery that criminals do not use "classical methods" for their communication, which the criminal procedure codes have in mind, such as letters, landlines or mobile phones, but use the latest technical achievements, such as encrypted communication platforms with servers. abroad, thus creating a "problem" for the competent authorities to discover and decipher the communication as well as to bring it under one of the existing evidentiary actions.
The "problem" escalated and came to the attention of many European countries after the "breaking" of the EncroChat and Sky ECC communication platforms, which certainly contributed to the discovery (and prevention) of numerous criminal acts by criminal groups, while leaving many questions open at the same time , starting with the method of discovering communication, delivering material to other countries and using it in criminal proceedings, the validity and admissibility of the so-called of "mass surveillance" that affects not only "criminals" but also "ordinary citizens", i.e. all users of certain communication platforms.
The paper discusses the issue of the legal nature and evidentiary significance of the data obtained by monitoring and decoding encrypted communication platforms EncroChat and Sky ECC. The first part of the paper deals with the manner in which the surveillance of these platforms was carried out, the legal basis for such actions, the legal basis for providing the obtained data to other countries, their assessment and further use in criminal proceedings. In the second part, we deal with the legal nature of the obtained data through the dilemma of whether it was targeted surveillance in criminal proceedings or mass surveillance carried out by the intelligence services, as well as the ECtHR's practice related to these issues and the protection of Article 8 of the ECHR. Bearing in mind that many data related to the discovery and disclosure of these platforms are not yet available to the public, the analysis was largely based on the available reports of certain organizations and decisions made by courts in Germany and Great Britain.