Facts
Lower court
High Court of Justice of La Rioja
Supreme Court


In a recent judgment, the Supreme Court examined whether sound recording evidence could be used to support a review of proven facts in an appeal.(1)

Facts

An employee on probation entered into a dispute over wages with her manager. The employee was subsequently dismissed on the grounds that she had failed her probation.

The employee challenged the dismissal. She requested that it be declared null and void on the grounds that the dismissal constituted a reprisal by the company for the dispute she had had with her manager over her salary.

Lower court

The lower court declared the dismissal to be lawful as it had taken place during the employee's probationary period. The employee appealed the lower court's judgment.

High Court of Justice of La Rioja

The High Court of Justice of La Rioja, after modifying the proven facts of the lower court's judgment on the basis of a recording of the conversation between the employee and her manager, declared the dismissal null and void.

The company appealed the appeal judgment for the unification of doctrine, arguing that – in accordance with the Law Regulating Social Jurisdiction (LRJS) – it is not possible to review the proven facts of a judgment on the basis of evidence that is not documentary. Article 193(b) of the LRJS establishes that one of the objects of an appeal for review is "to review the facts declared proven, in view of the documentary and expert evidence".

Supreme Court

In its ruling, the Supreme Court recalled its doctrine in relation to the ineffectiveness of evidence consisting of the reproduction of sound or image to support the review of proven facts in an appeal for reconsideration.

In this sense, the Supreme Court recalled that an appeal for judicial review is an extraordinary appeal. Consequently, the extent of factual review in such cases is limited – such a review can only be carried out in view of documentary or expert evidence. Likewise, the interpretation of the concept of "documentary evidence", given the extraordinary nature of such appeals, must be restrictive.

The Supreme Court stated that it had, in the past, accepted a broad concept of documentary evidence, whereby – for example – emails had been attributed the nature of documentary evidence. However, the Supreme Court established that the concept of documentary evidence could not cover an audio recording of a conversation between two people because, in itself, conversations do not have the character of a document that is incorporated into an electronic medium. Therefore, the Court determined that the recording of a conversation may not be used as evidence for the purpose of reviewing proven facts.

By virtue of the above, the Supreme Court upheld the appeal for the unification of doctrine and annulled the appeal judgment.

For further information on this topic please contact Elena Esparza or Eva Ceca at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] and [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms.law.

Endnotes

(1) Judgment of 6 April 2022 [ECLI: ES:TS: 2022:1469].