Use of audio and video recording to protect rights

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Use of audio and video recording to protect rights

Now the topic of using technical means of audio and video recording in order to protect the rights of citizens has acquired special relevance. This is due, on the one hand, to the development and availability of appropriate technology, on the other hand, to quite numerous precedents when citizens suffered in its acquisition and use.
The loudest case that brought the problem out to the general public and gave impetus to progress in this matter was the story of a Kurgan farmer who used a tracker to track pets and was prosecuted. The story got publicity on a “direct line” with the president.
So how are things going on this issue, after all, the problem of self-defense, as well as evidence in court, is very acute, especially in our state, with the specific approaches of law enforcement agencies and the judiciary, which historically continues to protect the executive, not the law (probably, many motorists is the popular phrase "the court has no reason not to trust the testimony of the traffic police officer")?

The nuances of using technology

To understand how and what you can use to protect your rights without breaking the law, you need to keep in mind that currently there are a lot of recording devices and they are generally available. But "not all yoghurts are equally useful" (c).

1. A potential problem is associated with the fact that the device used may fall under the category of special technical means for secretly obtaining information (STS NPI) - in other words, "spy tricks". And this is a criminal offense. Moreover, you can get under persecution when you purchase the product.

Regarding the attribution of funds to the STS NPI and related incidents, you can write not just a separate post, a separate manual will be required here. And what is most interesting is that it still will not allow us to clearly understand what we are dealing with, because there is a gray zone in the legislation. We can only say that all these things from Chinese sites are in the zone of particular risk, there are a lot of precedents when people were "taken" right upon receipt of them by mail (by the way, the mentioned case with a farmer brought to justice is from the same series about Chinese devices).
But there is good news here - you can buy dictaphones, according to which there is a conclusion of the FSB (just the body in whose sphere these issues are) that they do not belong to the STS NPI. In addition to this, very pertinent in our realities details, they have characteristics that are just sharpened not for “pampering”, but for solving real problems (miniature size, long autonomy, sensitive microphone, ease of control).
Some modifications are equipped with special markers that allow you to confirm the authenticity of the record if it is necessary to provide it in court.
Of course, professional mini-dictaphones are more expensive than a mass product, but risks (legal and technical) are minimized. In addition, they are manufactured in Russia, and therefore, there are opportunities for technical support for users, it is much easier with repair, replacement and similar problems.

1. Another aspect is that all information can be divided into legally protected and available for fixation and use.

Accordingly, the first (protected by law) cannot be recorded and used in any way (for example, it would be illegal to adapt audio and video recording devices for attempts to secretly obtain personal and family secrets, information transmitted over communication networks, commercial, banking and state secrets). But the conversation of a driver or another citizen with a law enforcement officer on duty does not apply to such information. Or recording a conversation by one of its participants is a legal action, but the possibility of recording it by a third party (third) is regulated.

Audio recording as evidence in civil proceedings

As mentioned above, not only constitutional norms, but also the norms of procedural legislation provide for the possibility of using audio recordings as evidence in the process (for example, Articles 55, 77–78 of the Code of Civil Procedure of the Russian Federation). But on the other hand, no one canceled the right to privacy, personal and family secrets (Article 24 of the Constitution of the Russian Federation,), moreover, the Criminal Code (Criminal Code of the Russian Federation) provides for punishment for illegal collection or dissemination of information about the private life of a person constituting his personal or family secret, without his consent (Article 137 of the Criminal Code of the Russian Federation) (not to mention the fact that there are some problems with the legislative definitions of the concepts used). Well, and STS NPI, which were also mentioned above. All of this added a lot of confusion to the issue, making it much more difficult to use this useful and effective tool.

But then the Supreme Court of the Russian Federation intervened, expressing its position when reviewing cases.
Perhaps one of the most fateful in this regard can be considered the Determination of the Armed Forces of the Russian Federation of December 6, 2016 in case No. 35-KG 16-18.
The key point of this decision can be considered that the court accepted as evidence an audio recording made without the knowledge of the other party, and used the evidence established with its help when making a decision on the case.
The position on this matter was such that the prohibition on the dissemination of personal and family secrets did not work in this case, since the recording was carried out by one of the participants in the conversation and concerned the terms of the contract between them. And that was a landmark moment.
And today we can already say that in order for a dictaphone recording to work as evidence in a civil process, the following conditions are required:
1. It must be done to protect the violated right. That is, it is important to prove that the submitted recording was made to protect one's rights, and not to obtain information about private life and other information protected by law.
2. It must be possible to establish that it is about the disputed legal relationship, and not about some other, and the content must confirm the circumstances necessary for making a decision.
3. The entry must be made by the person whose right has been violated.
4. The recording must be made on a device that can be used in all procedural procedures (if necessary, transfer it (or the extracted media) for storage to the court, attach to the case file, submit it for examination, transcript, and so on).

That is, the law, of course, does not prohibit making a recording on the phone, but taking into account the above factors, it will be much easier and more reliable to do this on a professional voice recorder.
Nowadays, audio recording as evidence is most often used in labor relations, in loans (and by both parties), in resolving disputes arising in relations with law enforcement agencies and officials. But there are also nuances that need to be taken into account so that the court does not reject this, often the only, type of evidence (very often this is the last chance of the injured party), with the help of which important circumstances can be established.

Audio recording in court - objections of the opposing party and how to deal with it

Often difficulties are created by the other side, whose position is undermined by the information contained in the audio evidence. A party may:

1. Report distortion of data on the record, about its editing.

The situation can be solved. Expertise to help, as in almost all matters, when the opposing side "goes to rejection." The bad news here is that recordings made on widely-used dictaphones (and even more so built into telephones, etc.) are likely to be unsuitable for experts to answer the questions posed by the court. And the good news is that now there are voice recorders on the market with special digital markers to protect the recording from editing. For this purpose, imperceptible markers are added that allow you to determine the time and date of the recording, determine the type and serial number of the recorder on which the recording was made, and also determine whether it has been edited. And their other functions are tailored to work in specific conditions.

1. Declare the impossibility of identifying voices on audio recordings.

But here everything is the same as in the situation above - an expertise to help and an audio recording suitable for this. But at the same time, it is important to understand that such an argument can be considered valid if the phonogram submitted to the court is of poor quality, or extraneous noises are recorded on it, which interfere with the perception of the interlocutors' speech. Otherwise, the court will critically assess such statements. Therefore, a quality recording in this matter is very important.

1. Recognize the fact that the conversation presented on the audio recording took place, and even the parties were appropriate, but it was “about something else,” related to other debts, etc.

Here, the clarity of the pronunciation and sounding of the key points for the obligation under discussion is important, the more identifying markers there are, the higher the likelihood of tying the conversation recorded on the dictaphone to the legal relationship discussed in the trial. The same hidden markers on the dictaphone, with which you can set the date and time of the conversation, and in this aspect, link the recording and the subject of the litigation.


In addition, it is important that the original audio file can be submitted to the court and, accordingly, preserved, and not a copy copied from another medium. That is, information must be immediately written to a device with a carrier that can be presented to the court, transferred for examination, etc. The overwritten file is likely to be deemed invalid evidence.
Of course, the court will evaluate the audio recording in conjunction with other evidence. But, given that we do not really like and know how to write documents and obligations, all the more competently and throughout the legal relationship, and sometimes we simply do not have such an opportunity, audio recording may be almost the only chance to restore events and establish the circumstances of the case.

How to write? What does the market offer?

1. Video and audio recording devices built into smartphones, players, etc.

Other audio and video devices of mass demand.

1. Professional devices.

Each group has its pros and cons, there are cases when it is easier and more convenient to use one, and in other circumstances, something else is preferable. But since I consider the means of audio and video recording in a specific context - the creation of a factual basis for the protection of my rights in emergency situations, the use of audio recordings in court as evidence, the recording of the court session itself, and similar cases, it is from this point of view that I will approach the assessment of technology.
Can devices from the first group write? Certainly. This is the simplest and most inexpensive tool. Under certain circumstances, these types of technical means can cope perfectly (for example, you are a journalist and are conducting an interview with an audio recording, having prepared in advance - by charging the recorder, checking the availability of free space on the carrier, and turning on, adjusting the device and attaching it more comfortably and closer to the interlocutors before the conversation - great, most likely the most common voice recorder will suit you here).
But we're talking about other situations.
You are driving, you are stopped by a traffic police officer. How will it all turn out? It is likely that everything will be ok, but disputes and abuses are still possible. And it would be nice if somewhere quite close at hand - in a shirt pocket, or next to a car, there was a device that can be easily turned on with one press of a button, or that works constantly while driving in loop recording mode, for which there would be no critical +/– meter or two of distance, and in general there was a good sensitivity, allowing to capture speech, which is not done specifically for recording, but quiet, booming, indistinct. Which would have a good resource of autonomy and recording, because in unplanned situations the law of meanness works well and it would be great if there was something to oppose it.
That is, we have come close to the question of what properties a device for audio recording should have in order to serve in those circumstances and for those tasks in question. And here I would vote to have a professional, or even better - a specialized dictaphone.

Useful features of specialized devices

• The ability to start recording with one movement of the switch, even by touch.
• The sensitivity of the microphone and the ability to record can reach 8–10 meters (of course, the further, the higher the risk of quality loss, but standard voice recorders will be powerless at much closer distances).
• Loop recording mode, that is, the switched on dictaphone writes constantly, overwriting the oldest information. The presence of such a mode allows you to turn on the recorder strongly in advance, if an important meeting, conversation or some other situation is expected in which it makes sense to record what is happening, in this case, the empty memory will not reduce the resource, since it will be automatically cleared when the recorder enters the next round ...

At the same time, the built-in memory capacity can assume many hours of recording, there are modifications that allow you to write for 14 hours or even more than 100.

• Rugged metal housing, which makes the device more resistant to both mechanical damage and electromagnetic vibrations.
• Miniature (that is, it will not defiantly protrude even from a shirt pocket and generally be conspicuous and annoying).
• High-quality recording without compression and the use of systems that introduce distortion.
• There is no way to write a finished file to it, that is, to embed a fake recording.
• Built-in digital markers that allow you to determine when the recording was made, whether it was edited, as well as to establish the type and even the serial number of the recorder on which it was made.

These are just some of the characteristics that increase the likelihood of making a record of high quality and increase the possibility of using it as evidence (expert, etc.).

Where and when to use

In addition to the already mentioned non-standard life situations, nothing prevents the use of such devices in everyday life - for recording lectures (when "long range" and a large amount of memory will definitely not interfere), meetings, business meetings and other events where you need to record or large amounts of information , or key points.
Not to mention communication with all kinds of officials, managers and other situations when the fixation “who told whom what” can be useful. Sometimes it is even personally useful for ourselves, because sometimes we ourselves do not remember what we blurted out and how we behaved, but we download the rights.
And, perhaps, it makes sense to purchase Russian-made devices for these purposes. And not because I decided to support a domestic manufacturer here. But because he can support you.
I do not even mean traditional repair-replacement, namely the prospect that an examination may be required, consultation upon request (from a lawyer, a court, an expert, and the buyer himself), etc. And when such an important link is available, who also understands the realities, it can be great help. For the device is not the simplest, the expertise here is also quite complicated and, alas, not always correct, so the manufacturer can be useful.
In general, there are enough useful devices for audio recording of information on the market today. But here, as elsewhere, the choice must be made taking into account the answer to the question "for what?" From here, the set of desirable options and, accordingly, what to purchase will be more understandable.

As an illustration, what questions regarding the presented audio recording are of interest to lawyers, I will give a scan of a typical lawyer's question to a manufacturer of voice recorders

text provided by lawyer E.V. Melnikova

Использование аудио- и видеозаписи для защиты прав.

Сейчас тема применения технических средств аудио-и видеофиксации в целях защиты прав граждан приобрела особую актуальность. Это связано, с одной стороны, с развитием и доступностью соответствующей техники, с другой с довольно многочисленными прецедентами, когда граждане страдали при её…

korshun66.livejournal.com

 

[Частный детектив. Армения. Ереван.]

I understood all the nuances and rules of use, thanks!

 

[poles1469]

Thanks for the interesting analysis!