The Constitutional Court was of this opinion when declaring unfounded the application for amparo filed by Alan Quintano Saravia against the Third Provincial Criminal Prosecutor's Office of Abancay (File No. 00867-2011-PA/TC).
The plaintiff requested that the recordings of the conversations he had with Tomás Gutiérrez Berrio on December 29 and 30, 2009 be declared null and void, which were included in the tax complaint filed against him for the crime of bribery. passive.
From the recordings it was verified that Quintano, who was a member of the police, asked his interlocutor to deliver a sum of money. However, he argued that the recordings were obtained in violation of his right to the inviolability of communications, since the conversations were listened to and recorded without his authorization.
In this regard, the Collegiate indicated that a distinction must be made between the process and the content of the communication. Thus, in response to the right to secrecy of communications, any external interference in the communication process is prohibited, unless there is judicial authorization or authorization from one of the interlocutors.
For its part, there is no duty of confidentiality or secrecy of what is communicated. The content of the communication disseminated or transmitted to third parties can only, if applicable, imply an infringement of the right to personal or family privacy.
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Even not all dissemination of the content of the communication implies a violation of the right to privacy, since there are some cases in which this is justified by seeking to protect other equally legitimate goods, such as the general interest in the investigation and prosecution of crime.
“It is not possible to understand, much less defend, the constitutional interest that may exist, for example, in protecting the secrecy of the commission of a crime,” the Court affirmed. On the contrary, in these cases, there is rather the obligation to report the criminal act once known.
Therefore, the TC rejected that there was any violation of the right to the inviolability of communications, since the recordings were obtained with the consent of one of the participants in the conversation, that is, Mr. Gutiérrez.
Likewise, it stated that the plaintiff's right to personal privacy was not violated, since the content of the conversation was directly related to the commission of the crime of passive bribery. With this, the constitutional magistrates ruled out all the appellant's arguments regarding the illegality of the recordings.