20.02.2020 | Telephone recordings of a private person can be considered as evidence. On the basis of the complaint of the Prosecutor’s Office the RA Court of Cassation rendered a case-law

In December 2017 the RA Prosecutor General’s Office received a decision rendered by the RA Court of Cassation on the basis of complaints by a criminal case initiated under Part 1 of Art. 137 of the RA Criminal Code, launched by the RA Deputy Prosecutor General and the victim of the case. The legal positions expressed by this decision, which were on the basis of the complaints launched by the RA Prosecutor's Office are indicative for the formation of a unified judicial practice by these cases.


By the criminal case, according to the mentioned article, V. Mkhitaryan was charged for being in hostile relations with his ex-wife L. Virabyan, in November 2017 phoned the latter and threatened both her and her mother regarding the disagreement over the visits of children. And the next day he went to L. Virabyan’s place of residence, started knocking on the door and, by threatening, demanded to open the door. And only after L. Virabyan’s second call to the police he ceased his actions.


By the verdict of the Court of First Instance of General Jurisdiction of Lori Region dated 21.02.2018 V. Mkhitaryan was pleaded guilty for an offense incriminated to him and a guilty verdict  was rendered against him. On the basis of the decision as an evidence  were considered the testimony of the victim, witness, confrontation protocol of L. Viarbyan and V. Mkhitaryan and the protocol of inspection of the disk, which was recognized as another document (the disk concerned the recording of a telephone conversation between her and her ex-husband, carried out by L. Viarbyan's phone).


As a result of the consideration of the cassation appeal launched by the defendant, the RA Criminal Court of Appeal by a decision of 23.05.2018 satisfied the complaint, eliminated the verdict of the Court of First Instance and, in the absence of corpus delicti in the charge against him, declared V. Mkhitaryan not guilty. The Court of Appeal substantiated its decision by the fact that the protocol of inspection of the disk recognized as evidence should be considered as an unacceptable evidence, since the recording of the telephone conversation of V. Mkhitaryan was carried out in violation of the law, without the permission of the court, by an incompetent person, thus, the right to confidentiality of telephone conversations was violated.


The cassation appeals were launched regarding the mentioned decision of the Court of Appeal by the RA Deputy Prosecutor General and the victim in order to eliminate the decision of the RA Court of Appeal and give legal force to the verdict of the Court of First Instance. As a justification, the circumstance was presented that, according to the legal position expressed in the verdicts of the European Court of Human Rights (interference with the human right to privacy) in some cases, a person’s record can be used as evidence in criminal procedure.


During the investigation, the RA Court оf Cassation partially satisfied the complaints, by rejecting the decision of the RA Criminal Court of Appeal regarding V. Mkhitaryan and sent the case to the same court for a new investigation.


The RA Court of Cassation, by reviewing and developing the legal position expressed in the decision rendered by the case ԵԿԴ/0081/01/11, considers that the recording of a telephone conversation presented by a private person to the body conducting the criminal proceedings can be recognized as evidence, subjected to legal assessment, accepted as a basis for implementing investigative or other procedural actions.


At the same time, by the decision, the court of cassation established clear standards that should be taken into account by law enforcement bodies when considering the admissibility of using recording of telephone conversations as evidence made by a private person. In particular, when assessing this issue, one should take into account whether the recording pursued a legitimate goal, whether there was no alternative opportunity to achieve the pursued goal using measures of less interference with human rights, whether the person acted in good faith or maliciously, whether the recording was made by a direct participant of the telephone conversation or by a third party, was the recording made before or after the start of the criminal proceedings? And from the point of view of the fairness of criminal proceedings, according to the opinion of the court of cassation, it is also necessary to take into account whether the person had the opportunity to challenge the content of the telephone conversation recording, its authenticity and interrogate the recording person, as well as to what extent the recording is unique or decisive evidence justifying the guiltiness of a person in the commission of the alleged crime.