4.- It is not necessary to announce before the trial that you want to use the voice reproduction test, since it is legal to present this evidence in a surprising way in the same trial without notice and at the time provided for the practice of evidence in the trial without notifying the opposing party. Today, we all have mobile devices with recorders at hand and instant messaging systems are the most commonly used means of communication, but to what extent are they admissible as evidence before a trial? First of all, what is written in Article 299.2 of the Code of Civil Procedure is of the utmost importance: one of the judgments of the Supreme Court, 3585/2016, proves it. “Contributing to the process of recording private conversations made by one of its protagonists does not violate the right to secrecy of communications, since this right cannot be exercised against the participants themselves.” The influence attributed to recordings is directly proportional to the possibilities that they will be challenged as evidence, as they are generally not manipulated or forged. This leads to the fact that the person concerned often limits himself to “defending that the conversation does not infer what interests the other,” says Raya. However, it clarifies that the person who committed a crime was not Villarejo, but “the one who broadcast the recordings”, although the commissioner may also “assume criminal responsibility for the broadcast of these conversations, but not for the recording”. In mid-2018, the recordings released by Commissioner Villarejo with various public figures generated much controversy and enthusiasm. Although this police officer had the right to record these conversations, it is quite another matter to make them known. Felipe Fernando Mateo explains: “If we broadcast our conversation, I can commit a crime of divulging secrets provided for and punishable by articles 197 and following of the Penal Code. Can a person who has not attended a business meeting secretly recorded by a speaker, in which decisions are made to harm their profession, use the recording in court if the person who recorded it gives them a copy via Wahtsapp? If use is possible, can the anonymity of the person who made the recording be guaranteed in court? As has been shown, the use of a court record raises several complications, starting with its validity. It is entirely valid and lawful to contribute to the act of litigation of voice recordings of conversations conducted by the parties to the proceedings. not to consider itself a violation of the fundamental right to privacy of the arrested person, who did not know that he was registered, or of the right to effective judicial protection.
And it is not necessary to announce in advance the use of this type of evidence, because one is able to practice in a surprising way in the act of the process. On the contrary, the recordings of others will always be illegal because they violate the fundamental right to secrecy of communications under Article 18.3 of the Spanish Constitution, since the unauthorized third party interfered with the message and was able to know the content of the conversation that other people have. That is, the decisions of the Constitutional Court and the Supreme Court recognize that spontaneity and good faith are prerequisites for the acceptance of such registrations. “When a conversation is forced and provoked, it is no longer possible to put oneself on the same level,” the sentence concludes. Third, it refers to the identification and designation as witnesses or questioning of other interlocutors so that they recognize their voice and the existence of the conversation. It follows from that case-law that recordings made by mobile telephone may indeed be used as evidence of judgment, provided that they fulfil certain conditions. Before getting into the main question of the legality of registrations, it is important to know that there are different types of registrations. This importance lies directly in their legality or illegality. If the recording made is used as evidence in court – very useful evidence, for example, if you are the victim of a false report – there is no problem; However, if it is another use of this recording, such as dissemination on social networks, etc., may constitute an offence of disclosure of secrets or at least an unlawful interference with the privacy, right to honour or image of the person concerned.
With regard to voice recordings as evidence, not only do courts accept them only if the party providing them actively participates in the conversation, but there should be no form of provocation, deception or coercion and, depending on whether it is a public or private place, the consent of the owner is required. It is extremely important that you have actively participated in WhatsApp conversations and voice recordings. This is continuously indicated by case law (judgment of the Supreme Court of Andalusia of 22 November 2017, judgment of the Supreme Court of 23 June 2020, judgment of the Court of Galicia of 16 April 2021). In fact, this lawyer explains that these recordings are legal because the commissioner was part of them. “What is not legal is further broadcasting. That is why Baltasar Garzón complained about the media broadcasting these talks.