Deletion of audio data, if not carefully managed, could result in the permanent loss of potential evidence. The consequence of losing potential evidence, whether inculpatory and exculpatory, is that it could jeopardise potential pathways to accountability and lead to accusations from the opposing party of destroying material (see BP 10). The Collector should develop a deletion policy that clearly indicates the circumstances under which collected audio data is to be deleted, and the process for doing so.
The Collector must balance its caution to refrain from deleting potential evidence with its obligations regarding data minimisation.1 Any audio data that is deemed irrelevant to the objective of the collection effort should be deleted in order to adhere to the principle of data minimisation (see BP 2). Deleting irrelevant audio data may also be required by applicable privacy law, for example if the audio data includes a human voice or other forms of personal data.
If the audio data is deemed irrelevant , following the assessment of relevance detailed in BP 13, the data and its respective audio data file should be labelled as being ready for deletion. This data should be kept separate from the relevant audio data and should be deleted on a regular basis.
The Collector should consider regularly auditing the data that has been marked for deletion in order to ensure that the assessment of irrelevance has been appropriately carried out. The audit serves as a safeguard against accidental or inappropriate deletion of relevant audio data that might serve as potential evidence.
All deletion data, including a record of deletions and all undertaken audits, must be logged in a tracking system.2 The Collector should consider logging a general description of the deleted material along with its date range and other relevant information.
Legal Framework
See section 4.2.2.C. on the importance of data minimisation for ensuring that a collection effort’s interference with the right to privacy is proportionate and therefore justified.
See section 4.3. detailing the rights of accused persons in connection with the right to a fair trial, in particular the right to be given exculpatory material.
Footnotes
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Per GDPR, Article 5(1)(c), collection efforts that fall under the purview of the GDPR must implement data minimisation. ↩
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This is an extension of the requirement stated in BP 3 that Collector ‘personnel must at all times strive to document the collection effort in a manner that is as consistent, clear, and transparent as possible’: Prosecutor v Ongwen (ICC), Trial Judgment, para. 658; Prosecutor v Ongwen (ICC), Confirmation of Charges, para. 51; Prosecutor v Ongwen (ICC), Transcript, para. 44, lines 8-24; Prosecutor v Tolimir (ICTY), Judgment, para. 64, referring to Prosecutor v Tolimir (ICTY), Transcript, page 5033; Prosecutor v Blagojević and Jokić (ICTY), Decision on Admission of Intercept Materials, para. 21; Prosecutor v Katanga and Chui (ICC), Decision on Bar Table Motion, para 30. See the discussion in sections 5.2. and 5.3. of the Legal Framework. ↩