Challenges of the procedural evidence in the social process and its resources, especially in the face of digital transformation

Abstract

The Spanish Parliament is processing a "package" of legal reforms to promote a digital Justice Administration, also in the field of procedural evidence. However, the social jurisdiction maintains many resistances, because it contradicts the basic principles of the social process. Likewise, judicial practice knows a greater presence of evidence based on conversations carried out through information and communication technologies (e-mail, social networks, WhatsApp, etc.). The Supreme Court attributes the value of documentary procedural evidence to e-mail but has not ruled on WhatsApp. In this situation, there is no unity of criteria in the doctrines of social supplication on how such evidence should be qualified. This study defends, on the one hand, that, as a rule, all the tests can be carried out electronically, of course that of expert ratification, unless, due to its characteristics, the electronic practice could harm some of the interests at stake or not meet the guarantees of authenticity due. Likewise, digital evidence that enjoys the necessary guarantees of authenticity must be classified as documentary procedural evidence. Consequently, these technological tests must open the review of facts in supplication (and in cassation).