In said sentence, it is specified in a specific way when it would be within the law to record a conversation by a person who has not intervened in said conversation. First of all, it must be taken into account that recording a conversation without permission can constitute a serious crime against privacy, as established in article 197.1 of the Penal Code.
Hidden recording by a third party
The Supreme Court, after the presentation of an appeal by one of those convicted of a crime of murder with treachery in competition with a crime of arson to be expelled as evidence recording a conversation, came into play. Basically, within the appeal of the defense, it is considered that the right to privacy and the secrecy of communications that come within the article of the Constitution were violated.
In any case, this response from the Criminal Chamber of the TS reopens the conflict that exists when recording a conversation. However, in this way, we already know one more facet of when is it legal to record a talk by a third party if you have not participated in it.
First of all, the TS (Supreme Court) makes it clear that the recording of a conversation by a person who has not intervened in it can be considered lithic evidence if the following is true: the consent of one of the participants must be obtained. If this is fulfilled, then it is already considered a lithic and valuable evidence: «It is enough that one of the communicators or interlocutors gives his consent for the intervention and recording by a third party for the exclusion clause of art. 11 LOPS. Only listening or recording by a third party without the authorization of any of the communicators or the judicial authority makes this means of proof unusable”.
Instead, it is also established that will not be considered lawful evidence if the hidden recording that has been made is made by someone from a position of superiority. Like, it could be the case that a law enforcement officer forced the confession of another person through trickery.
In this specific case, in which three men came to set fire to the shack where the father of the ex-partner of one of those involved lived, they ended his life. But, as stated by the Supreme Court in this sentence, it is established that, if one of the interlocutors gives the necessary consent, then the recording is considered totally valid, carried out by the wife of one of the participants. With this, it is possible to distinguish in a better way the barrier that exists between a participant or not at the time of making a voice recording.
