Disclosure of secrets

The Supreme Court (SC) has reviewed a conviction for a crime of discovery and disclosure of secrets. According to the proven facts, the accused recorded a phone conversation between the father and his two minor children without permission. Later, this recording was sent to a WhatsApp group ("3ºB") where the parents of the minors were (23 people). At first instance, the accused was convicted for the basic type of art. 197. 1 of the Criminal Code, with one year of imprisonment and a fine. On appeal, the Provincial Court upheld the conviction and added a compensation of 500 euros for moral damages to the father. The father appealed to the SC, requesting the application of the aggravated subtype because it involved data of minors (art. 197. 5 of the Criminal Code) and also the subtype for dissemination to third parties (art. 197. 3 of the Criminal Code). The SC partially agrees with him as it considers that the minors are indeed victims (passive subjects) because their rights to privacy and secrecy were violated.

In first instance , the defendant was convicted for the basic type of art. 197. 1 of the Criminal Code, with one year of imprisonment and a fine. In appeal , the Provincial Court upheld the sentence and added a compensation of 500 euros for moral damage for the father.

The father appealed to the Supreme Court, requesting the application of the aggravated subtype were involved in minors' data (art. 197. 5 of the Criminal Code) and also the subtype for disclosure to third parties (art. 197. 3 of the Criminal Code). The Supreme Court partially agrees with him as it considers that the minors are indeed victims (passive subjects) because their privacy and secrecy rights of communications. And clarifies that it was not an obstacle for the father to report "in his own name", it was enough for him to describe the facts that affected his children , because he had legal representation. In addition, the Public Prosecutor's Office took over the report, thus saving the requirement of procedurality.

The Supreme Court applies article 197. 5 of the Criminal Code and increases the sentence to 2 years, 6 months, and 1 day of imprisonment, plus a fine of 18 months. However, it does not apply article 197. 3 of the Criminal Code because the sentence states that the sending could have been a mistake and was immediately deleted, which raises doubts about the intention to disseminate. It upholds the rest of the rulings, including the compensation of 500 euros.