Friday 20 June 2008

On the Record

Since George Orwell wrote his famous novel on the dangers of an all-controlling Big Brother in the 1940s the possibilities to record human behavior have greatly increased. The challenges to the right to privacy are obvious, but audio or videotaping behavior can also form important proof in criminal and other proceedings. Such tapes can be used by or against the state. Two recent cases at the European Court illustrate this.

The first is the case of Victor Saviţchi v. Moldova. On 17 June the Court delivered its judgment in the case, finding a violation of Article 3 ECHR (prohibition of torture and inhuman or degrading treatment and punishment), concerning both its substantive and its procedural aspects. In many ways the case is one of the hundreds of instances of police violence which Strasbourg has to assess yearly: the applicant was beaten during his arrest by the police. But one element clearly sets the case apart: the whole incident was filmed, by the police for that matter! However, the national authorities and courts mainly used police testimony in deciding the case, mostly ignoring the taped evidence. All the more flagrant since the videotaped evidence showed that the applicant did not fight the arrest but tried to avoid the blows and kicks of the police officers. In that sense, in the Court's view, the authorities did not reasonably use all the available evidence. A clear Strasbourg pointer on how to conduct an effective investigation into allegations of ill-treatment.

A contrasting situation, where taped materials were used against an individual is the case of Bykov v. Russia, currently pending in Strasbourg. The facts are reminiscent of a James Bond movie. Bykov was suspected by the authorities of planning the murder of a former business associate of his. The police staged the discovery of the murdered body of the associate, with the help of the man ('V.') who had allegedly been hired by Bykov to commit the murder. The fake murder was widely publicised in the media and a few days after the 'discovery', V. went to Bykov to report that he had accomplished his mission, carrying on him a hidden radio-transmitting device, which allowed the police to record the whole conversation. On the basis of those tapes, Bykov was arrested and eventually sentenced to several years in prison for 'incitement to commit a crime involving a murder'. In Strasbourg, Bykov complained of un unfair trial (evidence obtained by entrapment being decisive) and about violations of the right to respect for his home, private life and correspondence.

The Grand Chamber hearing in this case was held on Wednesday 18 June and can be found here and the admissibility decision here. For an earlier Strasbourg judgment on entrapment, see Teixeira de Castro v. Portugal. To be continued!