Destruction of magnetic records which were obtained by intercepting telecommunications and which the examining judge deems irrelevant
Equality of arms
Rights of the defence
RULING Nº 660/06
28 of November of 2006
If items of evidence obtained by telephone tapping (of which only the police and Public Prosecutor's Office are aware) are destroyed by order of the investigating judge, and the accused might want to use them in his defence, this results in an unacceptable and unnecessary reduction in the guarantees enjoyed by the defence. This reduction is particularly pronounced when one compares the position of the accused with that of the prosecution.
The accused (already limited in the exercise of his fundamental rights because his telephone was tapped) was not informed of the content of the communications and was consequently not even able to determine their importance, as the recordings were destroyed, while the prosecution had access to the full, intact content of the communications and was able (and obliged) to select and indicate the excerpts deemed important. The intervention of the prosecution prior to the judge's appraisal was therefore material.
At issue here are the standards set by the Code of Criminal Procedure concerning the destruction of recordings of communications by decision of a judge, based solely on the evaluation of their importance as evidence. The question is: can the judge order the destruction of the recordings without the content of the communications being transmitted in full, immediately or subsequently, to the defendant, so that he can at least determine to the best of his ability the importance for the trial of the conversations which the judge deemed irrelevant. His view is likely to differ from that of the judge.
It is true that the intervention of the judge represents an additional guarantee compared with a system where the prosecution alone decides what passages to select and their relative importance. However, it cannot be considered sufficient as a guarantee for the following reasons. Firstly, the criminal police and the public prosecutor may influence the judge's decision, as it is their duty to point out the parts of the conversation they consider important before the judge reaches a decision, while the accused is not informed of the content of the communications, and is therefore in a position of inferiority or inequality. Secondly, when the accused is preparing his or her defence, he or she needs access to the content of the conversations in order to determine their importance.
Moreover, one cannot rule out the possibility that the assessment made by the investigating judge may not be strictly correct, and that this may be brought to light in subsequent proceedings or by other events. In any event destroying the recordings makes it impossible to know.
The Court pronounced unconstitutional that part of the Code of Criminal Procedure authorising the destruction of evidence obtained by intercepting mail or tapping telephone conversations, to which the criminal police and the prosecution have had access and which the investigating judge has dismissed as irrelevant without the accused having seen or heard the evidence or been able to decide on its importance. The Court considered that this violated the guarantees concerning criminal procedure enshrined in Article 32.1 of the Constitution.
The destruction of recordings of intercepted communications has already been declared unconstitutional in Decisions 426/05 and 4/06. In this last decision, based on the vast case-law of the European Court of Human Rights, it had already been established that depriving the defence of the possibility of requesting the transcription of excerpts not selected by the judge and not transmitted intact and in full to the defence for examination, by immediately destroying the recordings the judge considered irrelevant, weakened the guarantees of the defence.