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What’s the admissibility of investigators’ covert recordings in Europe? Examining courts’ sticky legal and ethical issues

Sometimes fraud examiners need to record covert surveillance in their cases. But will their audio and video recordings be admissible in court? Here we examine a high-profile bribery case to test all the legal angles in deciding the usability of evidence in Europe and, by extension, the rest of the world.

In May 2019, two major German media publications, DER SPIEGEL and Die Süddeutsche Zeitung, released parts of a video purportedly showing Heinz-Christian Strache, then vice chancellor of Austria, and Johann Gudenus, former deputy mayor of Vienna, solicit illegal campaign support from a supposed niece of a Russian oligarch.

The video was recorded covertly two years before its publication in the run-up to the 2017 Austrian general election that resulted in the party of the two men — the right-wing populist Freedom Party of Austria — forming a governing coalition with Chancellor Sebastian Kurz’s conservative Austrian People’s Party.

On the tape, the “Russian” woman is heard seeking investment opportunities for 250 million euros, which she claims “cannot be deposited at a bank.” Strache is then seen suggesting possible mutually beneficial solutions and then alluding to illegal financing channels for his party and trying to convince her to buy one of Austria’s most widely circulated newspapers to influence voters in his favor — all, he suggests, in exchange for casino licenses and contracts for highway construction. (See The Strache Recordings – The Whole Story, by Maik Baumgärtner, Vera Deleja-Hotko, Martin Knobbe, Walter Mayr, Alexandra Rojkov and Wolf Wiedmann-Schmidt, Spiegel International, May 5, 2019.)

The publication of the footage triggered a storm of public outrage that wiped away Austria’s government barely 24 hours later and will undoubtedly stain the two politicians’ reputations for years.

It also raised questions about the legality of covert recordings in the investigation of fraud and corruption cases in Europe, where different courts have voiced various opinions and rulings on this matter.

In this case, the video’s publication exposed those behind the video to legal attack. Strache’s legal team said the production and distribution of the video was illegal because it was done without Strache’s consent, and it breached his inalienable right to privacy. He eventually sued several publications. (The identity of the person(s)who produced the video remains unclear.)

However, in May 2020, the Austrian Supreme Court decided that the freedom of the press in service of the public interest — a fundamental, constitutional legal principle — outweighed Strache’s right to privacy, which thereby rendered the distribution of the video lawful.

Key to the court’s decision was that publication of the footage served the public interest because the news organizations were careful to publish only selected parts of the video that contained discussions of political matters. Parts of the unreleased material were rumored to contain conversations about drugs and sex, which the publications apparently deemed irrelevant to the public interest.

So, a precedent was set in Austria: Courts will decide, in retrospect, the legality of public distribution of covert material, and the lawfulness of the acts of recording, which Strache’s legal team sought to address, won’t factor into decisions.

Even so, the legal use of secret recordings to uncover fraud and corruption in Europe may not always be so clear-cut in cases that often cross borders and legal jurisdictions.

Indeed, the Strache case highlights some of these complications. It involved an Austrian citizen who was covertly recorded in Spain, but who sued German publications. The making of the video, considered in isolation and not for its relevance to publication, falls under Austrian and German jurisdiction. To further complicate the situation, Spanish laws don’t prohibit recording someone without their consent.

In short, those producing the video had achieved their goals by swaying public opinion. But had the courts deemed the purposes of the video producers to have been different (to unduly malign Strache, for example), the legal remedy could’ve unfolded differently.

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