Accused person’s guarantees in cases in which the examining judge orders the destruction of material that is gathered by telephone tapping and is deemed non-relevant
Rules of evidence
RULING Nº 70/08
31 of January of 2008
From the angle of safeguards on the defendants' rights of the defence, particularly in terms of the principle of adversarial proceedings, and with the exception of the restrictions laid down in procedural rules, phone tapping is subject to the same regulations as any other legally admissible type of evidence and must also be dealt with in accordance with the general principles governing investigatory proceedings. Phone tapping differs solely in terms of the restrictiveness of either its admissibility or the formal procedure to which it is subject, which is justified by the fact that it objectively constitutes a form of violation of privacy.
Where the rule set out in the Code of Criminal Procedure on the destruction of information obtained by phone tapping is interpreted as allowing the investigating judge to destroy information which she/he deems insignificant without informing the defendants of such destruction, thus preventing the latter from judging the possible relevance of such information to their defence, it does not infringe the principle of adversarial proceedings and is not deemed unconstitutional.
The contested judgment primarily concerns the legal and constitutional protection of the confidentiality of communications transmitted through telecommunications networks. The right to secrecy of correspondence transmitted by telecommunications entails prohibiting anyone accessing such correspondence from infringing their secrecy and revealing the content. The law can only restrict this constitutional guarantee in the field of criminal procedure. The requirements of the prosecution and of evidence-gathering can justify restricting the individual right to privacy of correspondence, but these requirements must be assessed by the courts in the light of the principles of necessity, expediency and proportionality. The procedural system presupposes ensuring that the admissibility of the interception and recording of telephone conversations and communications or of information transmitted through other technological channels comply with the principle of proportionality, so that secrecy of communications can be said to be relative.
Where the Court has ordered or authorised special operations to intercept and record communications on the assumption that they might be needed in evidence, it is not required to preserve the items stored in the file, even if they are not all useful and even where they objectively constitute a breach of the constitutional principle of non-infringement of privacy. The defendant's ability to analyse the transcript must be interpreted in line with this provision. The defendant and counsel for the defence, as well as the individuals whose conversations have been tapped, may analyse the transcript in order to ascertain the conformity of the recordings and obtain copies of these items. It is, however, obvious that only the transcribed items of information, i.e. those deemed necessary for the investigations, may be examined by those concerned (including the defendant), with an eye to ensuring the exercise of their procedural rights.
According to the judgment, the question therefore is whether the interpretation which complies most closely with the literal and teleological meaning of the provision, under the conditions specified, is unconstitutional for reasons of violating the procedural guarantees enshrined in the Constitution.
The principle of adversarial proceedings is one specific aspect of the rights of the defence, but it is also expressly acknowledged in the Constitution. In particular, this principle comprises the defendants' right to intervene in proceedings, to state their views and to contradict any witness statements, depositions and any other evidence or legal arguments produced, which presupposes their having the last word in the proceedings.
Nevertheless, the principle of adversarial proceedings must be interpreted in the light of the accusatorial structure of criminal proceedings, viewed by the Constitution as another guiding principle for criminal proceedings. The accusatorial principle basically posits that no one can be tried for a crime where the investigation and indictment procedures are matters for a body different from that responsible for the trial. This involves differentiating the various stagesin proceedings (investigation, indictment and trial/judgment), and also the various bodies/officials involved (prosecutor, investigating judge and trial judge).
The accusatorial system does not preclude an investigatory phase preceding the indictment stage. However, the action taken under the investigatory proceedings must be justified by the quest for the truth (which means that the requisite action may be intended to confirm or disprove the suspected offence), and is subject to a fairness criterion that precludes the use of evidence which is not legally admissible or which infringes legally established formalities.
The aim of this stage in proceedings is the investigation, which is legally defined as the set of activities required to investigate a crime, to identify the perpetrators and determine their responsibility, and to uncover and gather items of evidence with an eye to an indictment.
Therefore, the importance of the accusatorial conception of proceedings as set out in the Constitution lies in its balancing of the legal position of the defence against that of the prosecution, ensuring compliance with the equality of arms principle via the entitlement of the defendant (and counsel for the defence) not only to help elucidate the facts during the investigatory phase but also to actively participate in the preparation and discussion of the case, whereby defendants are free to make their own inquiries alongside the formal investigations.
In this context, the principle of adversarial proceedings is reflected in the "trial hearing and legal investigatory acts", geared to ensuring an adversarial hearing between prosecution and defence, although there is a difference of degree between the trial and the indictment phases. The adversarial principle in the framework of the trial hearing presupposes inviting the parties to state their factual or legal claims, produce their evidence, verify the evidence produced against them and discuss the respective value and results of the said evidence. During the investigatory phase, the same principle represents the facility for the accused to produce any new items of evidence that have not yet been taken into account and/or to organise a debate during the investigatory proceedings facilitating oral adversarial discussions before the judge, with a view to ascertaining whether the judicial investigations have produced sufficient material and legal evidence to justify bringing the accused before a court for trial. In connection with activities conducted during the investigations, the adversarial principle involves defendants participating in acts of directly relevance to them and being heard whenever a decision personally affecting them is to be taken, accompanied by the right not to answer questions put, the right to the assistance of a lawyer of their own choice or an officially assigned defence counsel and the right to be informed of their rights.
Investigatory measures which are taken under the adversarial principle in the conditions set out in the Constitution and implemented during the investigatory phase can consequently directly affect the legal status of the accused.
It is not for the defendant to pronounce on the importance of recordings made under phone tapping procedures or on the procedure for and time or place of interception. These aspects are covered by expediency criteria assessed exclusively by the Public Prosecutor's Office. Nor is it for the accused to pronounce on any other result obtained by means of other evidence. The principle of indictment and recognition of the right to adversarial proceedings therefore have a completely different meaning, i.e. they enable defendants to contradict, in subsequent phases of proceedings, the grounds and evidence gathered against them, to take specific action under the investigatory proceedings and to obtain items of evidence which they deem relevant.
The right to adversarial proceedings applies to the evidence on which the indictment was based. Such evidence will be assessed by the investigating judge for the purposes of the indictment and referred to the Court for trial. The accused can reply only to questions concerning this evidence, either by advancing arguments against the evidential results or by producing other evidence challenging or disproving these results.
In its previous Judgments nos. 660/06, 450/07 and 451/07, the Constitutional Court had already reached decisions on the point at issue in this judgment, finding the interpretation of the provisions in question unconstitutional.
In these judgments the Court held that the destruction of evidence obtained by intercepting correspondence transmitted or received through telecommunications channels, based solely on a decision from the investigating judge and unknown to the accused, was sufficient to unacceptably and unnecessarily reduce the safeguards of the defence. Such reduction is particularly serious in view of the comparative positions of the defendants and the prosecution, since the former, whose fundamental rights were already restricted when their phone calls were tapped, have no access to the content of these communications and consequently cannot assess their importance in view of the destruction of the relevant recordings, whereas the police and the prosecutor have had access to the full content of the communications and can therefore select any excerpts they consider important. Furthermore, in these judgments the Constitutional Court held that it could not be argued that this operation was intended to ensure protection of the fundamental rights of third persons or of the defendants themselves in order to justify the destruction of the recordings deemed unnecessary, since the data recorded had been obtained by intercepting communications and therefore infringed the defendants' private lives. The Court drew attention here to the fact that the destruction of recordings in pursuance of the Code of Criminal Procedure is based solely on the judge's appraisal of the importance of the conversations for evidential purposes, not on the illegality of the phone tapping procedures or the protection of third persons' or defendants' rights.
Nevertheless, in connection with constitutional case-law prior to the judgment in question, particularly that established by Judgment no. 660/06, the judges who voted against considered that, conversely, investigating judges are responsible for guaranteeing rights and freedoms and that consequently the interpretation to the effect that such judges cannot order the destruction of recordings of tapped phone calls which they consider manifestly unnecessary is a disproportionate interpretation of the constitutional requirements vis-à-vis criminal procedure.
Five judges voted against the judgment in question, repeating the line taken by the Constitutional Court. Basically they consider that, in accordance with the case-law of the European Court of Human Rights, there should be a requirement that the law empowering the authorities to tap phones should set out the requisite precautions for communicating the recordings made in their entirety for verification by the Court and the defence, thus giving persons whose phones have been tapped access to the recordings and the corresponding transcripts, as well as the circumstances under which the deletion or destruction of tapes may take place, notably after a case has been discontinued or a final decision taken; and that since our system permits the destruction of recordings of communications of which the prosecution, but not the defence, has been apprised and whose importance has been assessed by the judge, it stands out in relation to other comparable legal systems.
It should also be stressed that the adversarial principle cannot apply to the investigatory phase, which means solely that the destruction of such special evidence (tapped communications) cannot be ordered during this phase. This is confirmed by the fact that the evidential value of conversations acquired for the proceedings during the investigatory stage is not confined to these proceedings. It is actually a case of incorporating all the items of evidence to be assessed by the Court, such assessment obviously taking place subsequently to the adversarial proceedings. If the adversarial proceedings are to be fully implemented in the procedural phases (viz the indictment and the trial), whose adversarial nature is guaranteed by the Constitution, the defendants must have guaranteed access to the full content of all the evidence gathered so that, having taken cognisance of it, they can not only discuss the evidential value of any conversations transcribed but also assess the importance of other conversation which have not yet been acquired for the proceedings, with a view to a final decision in the case, which obviously requires a retention order.