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Access to Audio Recordings of Intercepted Communications: Fair Trials Files Amicus Brief before the Italian Constitutional Court
Arguing for a consistent interpretation of key procedural defence rights, Fair Trials has intervened in a constitutional case led by criminal defence lawyer and LEAP Advisory Board Member Nicola Canestrini.
The case concerns the provisions of Article 268(6) of the Italian Code of Criminal Procedure and Article 89-bis of the implementing provisions of the Code (Legislative Decree no. 271 of 28 July 1989). According to these provisions, defence counsel—but not the defendant him or herself—is allowed to access the digital archive of prosecution evidence, which includes audio recordings of intercepted communications. In practice, that means counsel must listen to the recordings at the archive; request copies of any recordings deemed relevant; confer with the defendant for contextualisation; and then, possibly, return to the archive to retrieve additional recordings in line with instructions. In this case, some of the recordings were in Arabic and Bengali, thus requiring defence counsel to be assisted by an interpreter.
Fair Trials argues that this arrangement imposes undue restrictions on the exercise of three procedural defence rights protected under EU law.
Right of access to the materials of the case
In order to challenge the lawfulness of arrest and detention, to safeguard the fairness of the proceedings, and to prepare an adequate defence, suspects and defendants have a right to access the materials of the case against them. EU law protects this access, demands that it be granted in a timely fashion, and allows restrictions only in exceptional circumstances and only on a case-by-case basis. While in some instances and for certain documents, access might be achievable through counsel, Fair Trials argues that preventing the defendant from listening to intercepted communications renders the right ineffective.
Particularly if there is an extensive number of recordings, as is the case here, counsel would have to be intimately familiar with every aspect of the defendant’s life and relationships to be in a position to assess the relevance of the recordings. Moreover, certain phrases, specific dates and names may only make sense once contextualised by the defendant him or herself. The presence of an interpreter only deepens these concerns. Their role is to provide literal translations of what is being said. Subtle conversational nuances, coded words, etc., can thus be easily lost on counsel and deemed irrelevant as a result.
The process is also highly inefficient. Where necessary, counsel may need to go back and forth multiple times, essentially taking a ‘blind stab’ at the evidence before selecting copies and being able to confer with the defendant. All the while, the prosecution have had ample opportunity and staff to review the evidence in full. This undermines not just the right to timely access but the fundamental principle of equality of arms.
Right of access to a lawyer
Under EU law, the right of access to a lawyer is interpreted in light of what the lawyer is for: securing an adequate defence—merely having one is not enough. Fair Trials argues that isolating counsel from the defendant during the review of audio evidence not just weakens the collaborative effort of an effective defence but, given the inevitable loss of information, puts the lawyer as a barrier between the evidence and their own client.
Right to a written translation of essential documents
Fair Trials argues that the Italian arrangement creates unfair obstacles for the inclusion of foreign-language evidence. EU law provides for a right to a written translation of documents which are essential to exercise the right of defence and to safeguard the fairness of the proceedings. If audio recordings include communications in a foreign language, and if the defendant is prevented from assisting counsel in assessing which communications are essential, then there is a real risk that key pieces of evidence and especially exculpatory ones are not translated and included in the evidentiary record.
The upshot
Fair Trials argues that, in principle, EU law requires Member States to grant the defendant unmediated access to the audio recordings of intercepted communications, especially if these recordings include communications in a foreign language. The European Criminal Bar Association and the Unione delle Camere Penali Italiane have also filed separate interventions.
You can download here our intervention in English and Italian.
