Phone conversations, why record interlocutors and how this recording can be used against you?
Author: Daria Vasina, Dynasty Law & Investment Lawyer
The purpose for which your telephone conversations may be recorded can range from wanting to obtain evidence in court, or gathering evidence, to corroborating the counterparty’s misconduct, or gathering information in criminal proceedings, to simply receiving compromising information on purpose. further extortion, etc.
In order to objectively investigate the legality of the recording process itself and the possibility of using the recording against you, you should examine the current legislation governing this issue.
Yes, Art. 31 of the Constitution of Ukraine guarantees every citizen the secrecy of telephone conversations.
According to the norms of the Central Committee of Ukraine, an individual has the right to freely collect, use and disseminate information, except for information concerning the personal life of a person. In this case, the consent of the person being recorded is required, except in cases specified in Art. 306 of the Civil Code of Ukraine.
As for direct telephone conversations, Art. 163 of the Criminal Code of Ukraine provides for criminal liability for violations, including the secrecy of telephone conversations.
The analysis of the specified norms gives grounds to come to the conclusion that nevertheless recording of telephone conversations can be carried out only with the consent of the person to whom the conversation is recorded or on the basis of the court decision.
When considering the possibility of using the obtained audio recording of a telephone conversation against you, it should be considered in terms of recognizing or not recognizing it as appropriate evidence.
According to Art. 84 of the CPC of Ukraine evidence in criminal proceedings are factual data obtained in the manner prescribed by this Code, on the basis of which the investigator, prosecutor, investigating judge and court establish the presence or absence of facts and circumstances relevant to criminal proceedings and subject to proof
Article 85 of the CPC of Ukraine stipulates that evidence that directly or indirectly confirms the existence or absence of circumstances to be proved in criminal proceedings and other circumstances that are relevant to criminal proceedings is appropriate.
Evidence is considered admissible if it is obtained in the manner prescribed by this Code, otherwise the evidence may not be used in making procedural decisions, and therefore it is inadmissible under the provisions of Art. 87 of the Criminal Procedure Code of Ukraine.
In view of the above, it should be noted that the received audio recording of a telephone conversation in order to officially obtain the status of appropriate evidence must be recognized as admissible evidence.
It should be remembered that even if we consider the existence of the recording, presenting it as evidence, even if it is formally confirmed in the manner prescribed by law, we should not forget that a person has the right to deny the authenticity of the audio recording, noting their falsification. by mounting. In this case, there is a need to appoint and conduct a forensic examination of this record and already based on the expert’s opinion, the court must accept this evidence as admissible.
In conclusion, I consider it necessary to recall that the audio recording of a telephone conversation obtained in the manner prescribed by law, combined with other evidence gathered during the pre-trial investigation, may play not the least role in the evidence collected by the prosecution during the trial.
In view of the above, it is necessary to remember that life in the active development of information technology, as well as the realities of fierce competition and corruption should constantly monitor their conversations, as well as carefully choose interlocutors. Self-control in this case is a guarantee of your safety.