The WhatsApp application has become an important means of communication and there are numerous cases in which its contribution to a judicial process is intended, either as an element of charge with which to sustain an accusation, or as an element on which to base a defense. However, given its easy manipulation, said tool does not have the notes of authenticity and integrity essential for the authenticity of the evidence in the judicial process, being normally contested by the party affected by said messages.
The Supreme Court, given the need to respond to these emerging elements whose probative effectiveness is intended, set the criteria to take into account to accept the validity as evidence of WhatsApp messages. Thus, in judgment 300/2015, of May 19, 2015, it was determined, in the face of the objection made to the contrary regarding the authenticity of the evidence provided, the need to carry out an expert test on the documents provided that allows identifying the true origin of that communication, the identity of its interlocutors and the integrity of its contents, by maintaining that: “The challenge of the authenticity of any of these conversations, when they are contributed to the case by means of print files, shifts the burden of proof towards those who intend to take advantage of their probative suitability”. This provided that the legality of the proof is previously accredited as it has not been obtained in violation of fundamental rights (privacy, secrecy of communications).
The above assumption is contemplated for challenges made by the opposing party, however, it will not be necessary to prove the authenticity or integrity of the message through the computer expert, when the content of the messages has not been contested, or has been recognized by the other party.
Other forms of contribution to the judicial procedure that are currently being admitted is the comparison made by the Lawyer of the Administration of Justice, attesting to the correlation between the “screenshots” or transcription of the messages provided and the content that appears on the mobile device, as well as its correspondence with the telephone and with the corresponding number and the operation of the line and its ownership. However, this does not prevent that the corresponding challenge can also be made, since the Lawyer of the Administration of Justice can only corroborate the transcript provided with respect to one of the devices, which is easily altered through the erasure of messages, decontextualizing the conversation.
In short, despite the absence of express regulation, in practice the probative validity of WhatsApp messages has been admitted, however, we must not forget that the judge is governed by the principle of free assessment of the evidence (art. 741 LECrim.), therefore WhatsApp messages may be admitted as evidence, but without implying that it is valued in the desired sense, since the sentence must refer to the whole of the evidence as a whole.
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