The Romans already knew this: quod gratis affirmatur gratis negatur, or in other words: what is asserted without reason may be denied without reason. Evidence often lies at the very heart of legal actions. But what does and does not constitute valid proof? Tax consultants recently screamed blue murder because in a decision of 22 May 2015, the Court of Cassation allowed the tax authorities to use illegally obtained evidence to prove the existence of a tax liability.

The Order of Flemish Bar Associations, which represents all Flemish lawyers, regrets this decision and considers it a violation of the judicial protection that should safeguard all citizens and indemnify them against any arbitrary treatment by the government. The end of the legal state, or maybe even of democracy?

However, things may not be quite as bad as they seem, and the decision by the Court of Cassation on fiscal affairs only extrapolated an approach that has been around for over ten years in the criminal courts. After all, pursuant to the decision referred to as the ‘Antigoon’ ruling since the Cassation ruling of 14 October 2003, illegally obtained evidence can nevertheless be used by investigative courts or criminal courts if none of the following three circumstances is applicable:

  • compliance with the breached formal requirement was prescribed under penalty of nullity;
  • the breach committed has affected the reliability of the evidence;
  • using the illegally obtained evidence is irreconcilable with the right to a fair trial.

The latter must be evaluated taking into account the elements of the case taken as a whole, including the manner in which the evidence was obtained and the circumstances in which the irregularity was committed. For example, the judge will take into account the question of whether the gravity of the offence far exceeds the severity of the irregularity committed. For criminal cases, the Antigoon ruling has been converted into law through the Act of 24 October 2013, which added a new section 32 to the previous heading of the Code of Criminal Procedure.

Advocate General Francis Desterbeck commented in an article in Trends: ‘The underlying idea was… that invalid evidence must not automatically result in a discontinuance of the criminal proceedings. This is only allowed when the rights of the defendant are fundamentally undermined‘. To conclude from this that certain authorities will decide that numerous rules are not fundamental, is probably no exaggeration. The government is inclined to apply much more lenient judgement to itself than would be applicable to citizens. Citizens are still expected to follow all the rules, failure of which will result in punishment. Patere legem quam ipse fecisti (an authority must abide by the rules that it has established itself), as the Romans also taught, apparently does not apply to our Belgian authorities. Sooner or later, this is bound to lead to breaches against the principle of ‘equality of arms’ between the citizens and the Public Prosecution Office in the criminal trial system, which is recorded in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 14 of the International Convention on Civil and Political Rights.

In civil and commercial cases, in which the government does not play a predominant role, the rules of evidence are completely different. Here, it is still the case that illegally obtained evidence must not be used during a trial. For the rest, there are often major differences between the rules of evidence in civil cases (regulated by Section 1315 onwards of the Civil Code) and the rules of evidence in commercial cases, stipulated in Article 25 of the Commercial code. The proceedings-related aspects of the evidence, both in civil cases and in commercial cases, is regulated in the Judicial Code from Article 870 onwards. Whereas the furnishing of proof is in principle unrestricted in commercial law, there are more restrictions in civil law; at least in theory. In civil law, the legislator has always exercised caution in relation to witnesses. For example, the evidence produced by witnesses is inadmissible if it contradicts the content of written documents. If only prima facie evidence is in writing, or if it is impossible to produce written evidence, the witness evidence is accepted after all (Section 1341 Civil Code). In 2015, it is fair to ask what is considered to be a ‘written document’. Is an email a written document? A chat message? An SMS?

In commercial law, certain documents are considered to have a very specific evidential value that varies depending on whether the dispute has arisen between traders or between a trader and non-trader. For example, special evidential value is awarded to regularly produced accounts or to a regular invoice. The chance that special privileges are granted to authorities in relation to evidence in civil or commercial matters is therefore fairly small. The question nevertheless arises whether the time has come to adapt the rules of evidence (and by extension, the rules of interpretation) to the reality of the 21st century. The expectation that courts in civil or commercial matters will make milder decisions about the impact of irregularities when obtaining evidence, in analogy with criminal and fiscal matters, seems to be a self-fulfilling prophecy. After all, how can it be compatible with the principle of equal treatment that a piece of evidence can be considered acceptable despite it being obtained with some small irregularities, whereas it is not acceptable in civil or commercial cases? Antigoon therefore also threatens to insidiously undermine the rules of evidence in civil cases and commercial matters.


Dirk Van de Gehuchte

Portelio Law Firm