A man was denounced by his ex-partner, who presented as evidence emails and screenshots of conversations obtained from the defendant’s cell phone. The access was made without forcing the device, using the password that he himself had given her during their relationship. The defense requested the nullity of such evidence on the basis that his right to privacy and inviolability of correspondence, guaranteed in Section 18 of the National Constitution, had been violated.
The National Court of Appeals in Criminal and Correctional Matters confirmed the first instance decision that rejected the nullity motion filed by the defense. It established that, although emails and conversations held through applications such as WhatsApp, Instagram or Facebook are protected by the constitutional guarantee of inviolability of correspondence, the access to this data had not been illegitimate.
The Court of Appeals considered that the access to the device was not forced or carried out by state agencies, but by a private individual in the framework of a relationship of trust. At the same time, it emphasized that the right to privacy is not absolute and must be weighed against other principles.
In this sense, the judgment remarked that the rules of evidentiary exclusion apply to evidence obtained illegally by the State, not by private individuals. In addition, it held that the sharing of passwords between partners is a common practice that does not, by itself, evidence a reasonable expectation of privacy.
The Court also considered that, in this case, facts that could affect the rights of children and adolescents are being investigated. In this context, it applied the principle of the best interests of the child, established by the Convention on the Rights of the Child and the Law for the Integral Protection of the Rights of Children and Adolescents, which requires prioritizing the protection of the rights of children and adolescents over any other interest at stake.
Accordingly, it was resolved that the digital evidence incorporated is not null, and its definitive validity will depend on the technical expertise still pending that will determine its authenticity.
