Bošković: SKY communications are not proof of guilt, their authenticity must be verified
Former Special State Prosecutor Nataša Bošković, who worked at the Special State Prosecutor’s Office for more than ten years and handled complex organised crime and corruption cases, told ETV Portal that the evidentiary value of SKY communications must be assessed on a case-by-case basis, with their authenticity, completeness and context verified, as well as the identities of the individuals to whom the messages are attributed.
She stressed that the effective detection and prosecution of serious criminal offences must go hand in hand with full respect for the rights of the defence and the presumption of innocence.
ETV PORTAL: How reliable is SKY material as evidence in criminal proceedings?
BOŠKOVIĆ: SKY communications can constitute significant evidence in criminal proceedings, particularly in organised crime cases. However, the fact that a particular communication was obtained from an encrypted communications platform does not, in itself, mean that its content is authentic, that it has been correctly attributed to a particular person, or that it establishes the commission of a criminal offence. It is necessary to examine how the material was obtained, its completeness, reliability and context, as well as its connection to the specific criminal incident in question. Therefore, the evidentiary value of SKY communications must be assessed in each individual case, in accordance with the law and the rules of criminal procedure.
ETV PORTAL: Can someone be prosecuted solely on the basis of SKY communications, or is additional evidence necessary?
BOŠKOVIĆ: It is necessary to distinguish between initiating and conducting criminal proceedings and delivering a conviction. Depending on their content, quality and evidentiary strength, communications may be sufficient to justify certain procedural steps. However, this does not mean that they automatically provide sufficient grounds for a conviction.
There is no universal rule requiring every SKY communication to be corroborated by another type of evidence, nor can the possibility that a single piece of evidence may, on its own, carry decisive evidentiary weight be ruled out in advance. Nevertheless, the more serious the allegation to be established, the more important it is for the court to carefully examine the reliability of the material and determine whether any reasonable doubts concerning the decisive facts have been eliminated. In practice, other evidence often plays a key role in corroborating or challenging the meaning of a communication.
ETV PORTAL: How does the Prosecution establish the authenticity of messages and the identities of the individuals who allegedly exchanged them?
BOŠKOVIĆ: This requires a comprehensive analysis of the technical and factual circumstances. It is necessary to examine the origin of the data and how it was obtained, the available technical documentation, the integrity and completeness of the material, as well as the reliability of the procedures used to extract, process and submit the data to the competent authorities.
It is particularly important to establish the link between a specific user account or device and the person to whom the communication is attributed. This should not be based solely on a nickname, code or assumption, but on a body of interconnected facts and evidence. Depending on the circumstances, telephone and other communications data, contact records, the content of conversations, location data, financial records, witness statements and digital forensic findings may all be relevant.
ETV PORTAL: How can the defence verify whether messages have been taken out of context and whether the Prosecution had access to the entire conversation?
BOŠKOVIĆ: The right of the defence to effectively challenge evidence is one of the fundamental elements of a fair criminal trial. In accordance with the law, the defence must be given access to the evidentiary material on which the charges are based and the opportunity to verify its authenticity, completeness, relevance and interpretation.
Where relevant to the defence, it is particularly important to establish whether complete conversations and related communications are available, rather than merely isolated messages, and whether there is information preceding or following the disputed communication that could alter its meaning. The defence must have the opportunity to challenge the analytical methodology, point out any shortcomings and propose appropriate evidence, including expert examination where necessary.
If the defence does not have a genuine opportunity to examine evidence that is decisive to the outcome of the proceedings, serious questions may arise concerning respect for the rights of the defence and the right to a fair trial.
ETV PORTAL: Is there a risk that a nickname or code could be incorrectly linked to a particular person?
BOŠKOVIĆ: This possibility cannot be ruled out in advance. A nickname or code serves as an identifying detail within a particular communication, but does not, in itself, prove the identity of the person who used it. It is necessary to establish who used the particular account or device during the relevant period and whether other evidence supports that conclusion.
Particular caution is required when identity is inferred from the content of conversations, presumed relationships between participants or the interpretation of coded expressions. Misidentification can have serious consequences for an individual’s rights, which is why conclusions about identity must be based on verifiable facts and evidence rather than assumptions.
ETV PORTAL: How important are witness statements, financial records, telephone data and other evidence in corroborating the content of SKY communications?
BOŠKOVIĆ: They can play an extremely important role because they make it possible to verify the content of digital communications against objective events and facts. Witness statements can shed light on the circumstances of meetings and events, financial records can confirm or challenge claims concerning money flows, while telephone and other technical data can help establish contacts, timing and the circumstances surrounding the communications.
None of these categories of evidence has a predetermined or automatically greater evidentiary weight. Their significance depends on their reliability, consistency with one another and relevance to the matters being established. The key is to assess all evidence both individually and in conjunction with the other evidence, in order to determine whether it forms a logical, consistent and reliable whole.
In conclusion, I believe that SKY communications require an approach that simultaneously enables the effective detection and prosecution of serious criminal offences and ensures full respect for the rights of the defence and the presumption of innocence. The purpose of criminal proceedings is not merely to obtain evidence, but to establish the truth about a specific event in a lawful and reliable manner. This is precisely where the responsibility of both the Prosecution and the Court lies.