Increasingly, in legal proceedings — particularly those involving children — recordings made without the knowledge or consent of the persons involved are being used, raising the question of whether such recordings can be admitted and considered as evidence.
As a rule, under Portuguese law, the admissibility of evidence is also linked to the manner in which it is obtained, and its legality constitutes a limit to the right to produce evidence.
While it is true that criminal proceedings contain specific rules on the inadmissibility of unlawfully obtained evidence, it is also true that civil procedural law, despite setting limits on the use of certain means of proof, contains no express provision regarding the inadmissibility of illicit evidence.
The legal system prohibits evidence obtained through torture, coercion, or any offense to physical or moral integrity.
However, evidence obtained in violation of other fundamental rights — such as the right to one’s image, the right to privacy and family life, or the secrecy of correspondence — is also considered unlawful. Yet, in certain very specific circumstances, such evidence may still be taken into account.
It may occur that the unlawfully obtained evidence is both essential and appropriate to prove the specific fact in question, and that the significance of the right underlying the fact to be proven outweighs the importance of the right violated in obtaining the evidence. In such a case, the restriction of the violated right may be justified in order to safeguard the right at stake.
Consider, for instance, a situation in which a six-year-old child expresses not wanting to go to her father’s home, saying that her stepmother mistreats her — something of which the father is unaware, as it only occurs when the two are alone, creating a situation of fear for the child.
In this case, a recording made by the mother of a phone call between herself and the child, during which the stepmother — unaware that the call is taking place and being recorded — yells at and insults the child, might be the only way to demonstrate the alleged facts. Given the circumstances, it could be the only means to protect the child’s best interests and prevent further abuse, and should therefore be admitted, despite having been obtained unlawfully.
Conversely, a recording made by the child or by the mother when the child is older and able to explain to the court, during a hearing, the specific circumstances of her experience, would not be admissible. This is because such evidence, obtained through illicit means and without the stepmother’s consent, is null, and it is not the only way to prove the alleged facts — other forms of evidence, such as the child’s own testimony, could be used.
In other words, there is no absolute necessity to admit such evidence when other means exist to establish the facts.
In conclusion, in civil proceedings, the pursuit of truth cannot be considered an absolute value that justifies the use of any and all means to achieve it. Only fair, appropriate, and legally admissible means of proof may be used. Exceptions to the principle of nullity of unlawfully obtained evidence arise only in very specific situations, where the legal interest violated by the illicitly obtained evidence is less deserving of protection than the legal interest sought to be safeguarded through that evidence.
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