Court of Cassation rules on admissibility of unlawfully obtained evidence in civil case
06 Dec 2021
Earlier this year, the Court of Cassation applied its ‘Antigoon-doctrine’ for the first time on the admissibility of unlawfully obtained evidence in a civil law dispute in the strict sense (between two private parties). Although the underlying case was not an employment dispute, Labour Courts will still have to take the Court of Cassation’s judgment into account.
The origins of the Antigoon-doctrine
The Court of Cassation first introduced the Antigoon-doctrine in its judgment of 14 October 2003, by ruling that ‒ in criminal cases ‒ unlawfully obtained evidence can only be excluded from the proceedings:
in the case of non-compliance with formal requirements that are sanctioned with nullity; or
if the unlawfulness affects the reliability of the evidence; or
if using the evidence would violate the right to a fair trial.
In 2013, the legislator formalised the Antigoon-doctrine in criminal cases in Article 32 of the Preliminary Title of the Code of Criminal Procedure.
The new horizons of the Antigoon-doctrine
In 2008, the Court of Cassation further expanded the field of application of its Antigoon-doctrine outside of criminal law proceedings. In its judgment of 10 March 2008, the Court of Cassation ruled that the Antigoon-doctrine also had to be applied in a case concerning a dispute between an unemployed individual and the National Employment Office (‘RVA’/‘ONEM’).
In this judgment, the Court of Cassation repeated the exact same three conditions taken from its original Antigoon-judgment, based on which unlawfully obtained evidence can be excluded from the proceedings.
The Antigoon-doctrine in civil cases ‒ the story continues
Following the above judgment, in which the Court of Cassation applied its Antigoon-doctrine in a specific civil case, a debate ensued on whether the Antigoon-doctrine could be applied in all civil cases (including e.g. disputes between employer and employee). No clear consensus emerged from the case-law of the lower courts in this respect.
In its judgment of 14 June 2021, the Court of Cassation took the next step in further developing its Antigoon-doctrine, by ruling in a dispute over the sale of a car. The parties disagreed on which sale price they had initially settled on and to prove their claim that a higher price had in fact been the one which had been agreed, the seller submitted a secretly recorded phone conversation with the buyer in which the latter acknowledged the higher price. The Labour Court, however, ruled that this evidence was obtained unlawfully and could not be presented in court.
The Court of Cassation rescinded the Labour Court’s judgment and ruled that the use of unlawfully obtained evidence in civil cases can only be excluded:
if the unlawfulness affects the reliability of the evidence; or
if using the evidence would violate the right to a fair trial.
These conditions were taken from the Antigoon-doctrine conditions that the Court of Cassation set out in its previous case-law on the matter (see above), with the notable exception of one: the fact that unlawfully obtained evidence can also be excluded in the case of non-compliance with formal requirements that are sanctioned with nullity.
The Court of Cassation also stated that, when assessing whether unlawfully obtained evidence can be allowed in civil law proceedings, a judge must take all the circumstances of the case into account. This gives the judge a significant margin of appreciation in this respect. The Court lists the following ‒ non exhaustive ‒ possible considerations for the judge to include in their assessment: (i) the manner in which the evidence was obtained, (ii) the circumstances in which the unlawfulness was committed, (iii) the severity of the unlawfulness, (iv) the extent to which the unlawfulness violates the rights of the other party, (v) the party’s need for proof and (vi) the attitude of the opposing party.
Conclusion
This was the first time the Court of Cassation applied its Antigoon-doctrine to unlawfully obtained evidence in a civil law case in the strict sense, thereby seemingly ending the above-mentioned debate on whether the doctrine could be applied in all civil law cases. Although this judgment does not concern an employment law case, Labour Courts should still consider this new judgement when determining whether to allow unlawfully obtained evidence to be presented.
If you have any questions regarding the above or regarding the use of evidence in employment matters in general, please get in touch, we’d love to hear from you.
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