In re Skanska S.A. (Reg. No. 400/16.4), the Federal Court of Cassation (Argentina’s highest federal criminal court) ruled on the admissibility of hidden recordings into evidence in the context of a criminal investigation.
The Argentine subsidiary of a multinational construction group was under investigation by local authorities in connection with allegations of tax fraud and bribery. In that context, a federal judge issued a search warrant of the company’s office, seizing all documents relating to the construction projects under government scrutiny.
Among the seized documents, federal agents retrieved records of an internal audit led by the company’s controller, which included recordings of incriminating admissions made by a company executive.
The executive in question moved for the exclusion of the tapes, on the grounds that the recordings were made without his knowledge and consent. The court dismissed the motion and the defendant challenged the decision on appeal.
On reviewing the case, the Federal Court of Appeals overruled the court’s decision. In so deciding, the Court of Appeals held that even if privately-made recordings may be admissible in criminal proceedings, once judicial process is in place, all relevant evidence must be produced by government agents.
Federal anti-bribery agencies acting as accusers filed for review by the Court of Cassation, which originally refused to hear the case but was later instructed to do so by the Supreme Court.
On analyzing the circumstances of the case, the Federal Court of Cassation reversed the decision by the Court of Appeals and admitted the covert recordings as evidence.
In this sense, the Court of Cassation held that privately-made covert recordings are admissible evidence in a criminal proceeding, provided that the defendant was not coerced or deceived into making incriminating statements. Moreover, the Court added that even if the defendant was unaware that he was being recorded, he was well informed of the nature and scope of the audit, and was thus aware of the implications that his admissions would have. Thus, the court ruled that the defendant had no expectation of privacy over the issues discussed during that interview.
After a long procedural battle that lasted over 10 years, we have a clear federal case law admitting the admissibility of privately-made recordings and private investigations in general.