Convicted thanks to data from an application controlled by the FBI.
The appeal process in the case of nine people convicted of drug trafficking has ended. The evidence questioned by the defense was data from the Anom app, controlled by the FBI. By the decision of the Krakow court, one of the convicted people was acquitted, the others will remain in prison.
The trial took place before the Court of Appeal in Kraków and ended on Monday. It included nine of the 14 people illegally convicted in October 2022 by the District Court in Tarnów for domestic trade and smuggling of large amounts of drugs, as well as, in the case of most of the defendants, operating as part of an organized criminal group. The group was busted thanks to the FBI-controlled Anom application, installed on the phones used by the defendants to communicate. In the appeals, the defense questioned, among others: the possibility of using data from this software as evidence in the prosecutor's office investigation and court proceedings. It indicated, among others: on the regulations of national and international law. Court ruling The appellate court did not agree with the defense lawyers' arguments questioning the legality of this evidence, finding that their use was admissible in the trial. In the oral reasons for the judgment, judge Barbara Polańska-Seremet noted that "appeals in the discussed scope show an inaccurate understanding of the regulations constituting the basis for admitting evidence obtained through legal assistance in Polish proceedings."
- The condition for the admissibility of such evidence is that these activities are carried out in a foreign country in a manner consistent with the principles of the legal order in the Republic of Poland. This means that the criterion for assessing the admissibility of such evidence is not to perform these activities in a way that faithfully complies with Polish regulations on this subject, but only in a way that does not violate the principles of Polish law - she emphasized. - Therefore, neither the grounds for initiating operational activities nor their duration and similar circumstances regulated in Polish law are relevant. These are issues that are subject to detailed regulations in individual countries, which may be inconsistent with Polish law - explained judge Barbara Polańska-Seremet. Trials in other courts - Today's verdict is very important because a number of proceedings are ongoing throughout Poland, based on data obtained from the Anom application - commented prosecutor Anna Pałka from the District Prosecutor's Office in Tarnów after the verdict was announced, pointing out that the district courts in Kraków and Similar indictments were filed against Elbląg. - The local courts are waiting to assess whether the evidence from the Anom application is legal evidence and can constitute the basis for findings in the proceedings - she added.
The prosecutor stated that "the court today assessed that this is the most legal evidence." However, the court acquitted one of the nine men who appealed against the first-instance verdict. His guilt was proven based not on the data from the application, but on the explanations of the remorseful co-defendant, who, however, was not convinced of the man's guilt. The court, having doubts about the incriminating evidence, decided the case in favor of the accused. In the case of six defendants, he also reduced the amount of forfeiture of proceeds of crime. In the remaining scope, it upheld the judgment of the District Court in Tarnów. The judgment is final, except for the issue of court costs.
Judgment of the first instance In October 2022, the court of first instance sentenced 14 people to prison terms ranging from 3 to 9 years and fines ranging from PLN 8,000 to PLN 100,000. zloty. He also ordered the forfeiture of obtained financial benefits amounting to PLN 9 million. Those who decided to cooperate with law enforcement authorities received extraordinary leniency. The Anom program, used for anonymous, secret communication, was installed on the phones of people involved in drug trafficking. The application was created in the United States by a repentant criminal who cooperated with law enforcement agencies. Drug dealers did not know that American services also had access to the application.
Defense: data obtained without court consent The group operating in Poland was investigated in cooperation with the Polish Central Bureau of Investigation. The data was transferred by the FBI to Poland pursuant to Art. 9 of the 2019 Washington Agreement between the USA and the Republic of Poland, and were secured by one of the EU countries, which obtained court consent to use these materials as part of an internal procedure. In October 2022, the Tarnów court decided that it could use data from the application, taking into account the US assurance that it was obtained in accordance with the law of that country. He also took into account other evidence, including: arrest of some of the accused with drugs. In their appeals, the defenders pointed out, among other things, that to conduct surveillance in Poland, the court's consent was required, which was not available here. They pointed out that data from the application was also sent to a server in another country. Additionally, in their opinion, the application is unknown and it is not known whether third parties could have access to the content.
- The evidence can be used in the Polish legal system, it was obtained in accordance with all applicable legislation in Poland - cited the arguments of the appellate court, prosecutor Pałka.
