Covert (Secret) Recordings as Evidence in Georgian Criminal Court
Nowadays, in everyday life, it is widespread for people to record their own and/or other's private communication in such a way that all the participants of the conversation are not informed about it, and therefore, there is no express consent from them. It is interesting to see how much of a legal force such records, which are stored on most people's cell phones and other technical devices, have if the owner deems the time has come to use those records.
First, we must distinguish between the probative value of a recording of a private communication in civil and criminal proceedings, because it is often unclear to people how the same type of evidence can be admissible in one case and inadmissible in another. For civil law cases, the current judicial practice does not consider the secret recording of private communication in the category of admissible evidence provided by the Code of Civil Procedure, with the main argument that the secret recording of a private conversation and then its use as evidence in court is against the inviolability of private life and personal communication guaranteed by the Constitution of Georgia, as well as the freedom of the individual. development rights.
In contrast to civil proceedings, criminal proceedings have a lower standard of admissibility of evidence, one example of which is the use of secret recordings of private communications as evidence. In criminal proceedings, we can distinguish two main types of secret recordings of private communication:
1) Covert recording of private communication obtained by the relevant state agency, covert investigative action, namely covert monitoring and recording of telephone communication, removal and fixation of information from a communication channel, computer system, as well as covert video and/or audio recording.
2) A covert recording of a private communication obtained by a private person as a result of unauthorized recording of a conversation with a specific person or group of persons.
In the first case, the secret recording is done on the basis of the judge's ruling or, in case of urgent necessity, on the basis of the motivated decision of the prosecutor, which is then checked post facto and confirmed by the judge with the relevant ruling. A secret recording of a private communication obtained in this way is admissible evidence in criminal proceedings.
As for the second case, when a private conversation is secretly recorded by a specific person. The Criminal Law Code of Georgia recognizes and defines such a criminal act as: a violation of privacy of private communication. The illegal action provided for in Article 158 of the Criminal Code of Georgia combines two different alternative actions:
1) Unauthorized recording or monitoring of private conversations, as well as unauthorized acquisition of computer data or electromagnetic waves carrying such data transmitted in a computer system or from the system during private communication using technical means, or illegal storage of private communication records, information obtained by technical means, or computer data;
2) Unlawfully using, distributing, or otherwise providing access to a recording of private communication, information obtained by technical means or computer data.
It is interesting to what extent the said article and the criminal policy established by it will become a determining factor in punishing a person for recording a private conversation when he may have thought that he was a participant in a conversation that might lead to criminal action against any other person, or was simply protecting himself to avoid possible future criminal liability? In the first case, when a private conversation is recorded or monitored without permission, an exceptional rule applies in Georgian criminal law, according to which, although a person's action constitutes a crime, he will not be held criminally responsible if he has given the information obtained/stored by him to the investigative authorities and committed/expected other He provided them with information about the criminal act in this way. But when the second part of the action is alternatively or simultaneously included in his action, that is the use, distribution, or other provision of access to this record, when the addressee of the information is any person other than the investigative body, in this case, we will already be dealing with such a criminal action, which will result in corresponding criminal liability.
Based on the information given above, we can already say that it is possible to use the secret recording of private communication as evidence in criminal proceedings. Otherwise, investigative bodies would have no interest in receiving such records, and their transmitters would not be exempted from criminal liability.
The Criminal Chamber of the Supreme Court of Georgia had to discuss the mentioned issue, when the plaintiff challenged the use of a secret recording of a private communication in the criminal process and its recognition as admissible evidence, which resulted in the collection of evidence and a guilty verdict against the accused. The claimant's position was based on the main motivation, which at the time was based on the establishment of a new practice by the Civil Affairs Chamber of the Supreme Court of Georgia and recognition of secret recordings of private communication as inadmissible evidence.
The Criminal Chamber of the Supreme Court of Georgia established the basic legal vision, based on which the standard of recognition of the secret recording of private communication as admissible evidence was determined, and accordingly, the reasonable motivation for making such recordings was finally confirmed for the interested parties. In particular, when we write a private communication secretly, in order for its existence to be truly effective and, at the same time, not to incur our criminal liability, we must take into account the following basic circumstances:
- The extent to which a particular private communication relates to an admission of a crime committed by one of its participants, sharing information about a future crime or intention. Requesting assistance in covering up a committed criminal act or assisting in the commission of a crime.
- Is it possible or not, that the particular conversation we are a part of, witnessing, will be used against us in the future, and if we secretly record that communication, will this act be self-defense or insurance.
- Private communication in which we are participants, witnesses, in its content, what is the relationship with the legal priorities of the state. Between the public interest in the administration of justice and the rights to privacy of private communications, which legal good prevails depends on the issues that the particular private communication involves.
- In what period of time do we think of using these records, by transferring them to investigative bodies, and to what extent the possible period of time selected by us ensures the practical effect of the preventive influence of justice.
- To what extent will the secret recording of private communication made by us be authentic and unmistakable at the moment when we decide to use it by handing it over to investigative authorities?
As we have already confirmed, the use of secret recordings of private communication is permissible in criminal proceedings. This permissibility, in turn, includes the logical reservation that secretly recording private communications by a private person is also a permissible act, even though, taken separately, making such a recording, keeping it and/or distributing it is a criminal offense. It is just a matter of finding the right balance between the criminal, criminally punishable act and the circumstances excluding criminal liability. At the same time, we should not forget that even if we have done everything in accordance with the law and current legal practice, it is no less important to go through the last stage correctly, which involves the correct removal/fixation of the secret recording of private communication and meticulous observance of the necessary prerequisites for granting it the future status of admissible evidence. Otherwise, our action may go beyond the scope of exclusion of criminal liability, and the secret recording of private communication made by us may turn against us again, which will make criminal liability against the author of the recording inevitable.
If you need expert guidance on matters related to criminal law, including the use of covert recordings as evidence in Georgian criminal court, our experienced criminal lawyer in Tbilisi is here to help.
DISCLAIMER: This is not legal advice. Our opinion is not binding for any court or authorities. For proper legal advice from our law firm please book a consultation.
