Spain's Supreme Court confirms admissibility of evidence obtained via WhatsApp video call

The witness, residing in Ceuta and in an advanced stage of pregnancy, requested to be excused from attending the Provincial Court of Zaragoza in person. The court accepted this request and authorised her testimony to be heard via WhatsApp video call from her home.

The defence challenged the validity of the testimony, citing the lack of reliable identity verification, the absence of safeguards such as a court clerk or other official; and the technical shortcomings that hindered understanding and questioning.

The Supreme Court’s reasoning

The Supreme Court observed that waiving the witness’s obligation to appear in person was “justified and more than reasonable.” It endorsed the assessment of the High Court of Justice of Aragon, which considered travel inappropriate for a mother in an advanced stage of pregnancy due to the discomfort and potential risks involved for both her and the child.

The judgment equate WhatsApp video calls with judicial videoconferences, recognising WhatsApp as a “similar system” within the meaning of article 229.3 of the Organic Law of the Judiciary. The court emphasised that the platform enables two-way, real-time audio and visual communication, allowing geographically distant participants to interact fully. This functionality, the court noted, ensures that adversarial argument is preserved and the right of defence safeguarded.

While article 137 bis, paragraph three, of the Civil Procedure Act may seem to exclude evidence given from a declarant’s home, the Supreme Court held that, in this instance, the use of WhatsApp enabled full participation: the deponent’s statement and answers were visible to all parties without restriction.
The Court acknowledged that the procedure did not conform to strict regulatory standards and involved “genuine irregularities.” The use of the term “irregularities” rather than “nullity” is significant.

The Supreme Court centred its analysis on this distinction, clarifying that the right to a fair trial under Article 24.1 of the Spanish Constitution does not mean all procedural rules are constitutionally protected. Not every procedural irregularity will result in nullity. Therefore, only those breaches directly affecting fundamental procedural principles, and thus the right of defence, can justify such a consequence.

Applying this criterion to the specific case, the judgment concludes that there was no violation of the right of defence. While recognising that “a procedural safeguard is never trivial or negligible”, the court cautioned that it would not be only contrary to the rule, but also illogical, to treat every regulatory irregularity as grounds for radical nullity, especially where such breaches concern rules lower in the hierarchy of procedural guarantees.

The Supreme Court concluded that the evidence obtained was not rendered unusable and that procedural irregularities in the taking of evidence do not necessarily render it invalid.

Osborne Clarke comment

Although delivered in a criminal context, the judgment’s reasoning is equally relevant to civil proceedings. 

• In civil proceedings, the general rule is that hearings and statements require physical presence (article 129 bis of the Civil Procedure Act). However, three exceptions apply: where the court issues a reasoned decision, the witness resides in a different municipality, or the witness appears in their capacity as an authority or public official.
• Where videoconference is used, it generally takes place from the court office in the participant’s judicial district, unless the judge authorises another location where circumstances justify it and identity can be verified (article 137 bis of the Civil Procedure Act).
• WhatsApp and similar applications enabling two-way, simultaneous image and sound communication are equated with videoconferencing under article 229.3 of the Organic Law of the Judiciary.
• Non-compliance with formal requirements does not automatically deprive actions carried out by videoconference of their legal effects, nor does it render them void (article 61 of Royal Decree-law 6/2023).
• Nullity arises only when there is an actual violation of the right of defence. Irregularities alone are not sufficient, and the absence of official electronic identification does not result in nullity if no party challenges the declarant’s identity.
• Interruptions caused by connection failures do not, on their own, invalidate the procedural activity and are analogous to incidents that may occur during in-person statements.