Belgium: Supreme Court allows Improperly Collected Evidence in Civil Cases

In 2003, the Belgian Supreme Court developed the so-called ‘Antigone’ theory, which allows the use of improperly collected evidence (collected without following the applicable rules) in criminal cases (Cass. 14 October 2003). For almost 20 years, there has been a fierce debate whether this theory can also be applied to non-criminal cases, including labour law cases.

According to the Antigone-theory (in Dutch ‘Antigoon’), improperly collected evidence does not have to be discarded by a judge, except in three cases:

1. If a rule of form prescribed under penalty of nullity has been breached;
2. If the reliability of the evidence has been adversely affected by the committed illegality;
3. If the use of the evidence violates the counterparty’s / defendant’s right to a fair trial.

During the 2000’s, it became clear in the case law of the Supreme Court that this theory can also be applied to ‘illegal’ evidence collected in dismissal cases, when the dismissal was linked to a crime (e.g. a theft by the employee which was illegally recorded by a video surveillance camera of the employer). Later, the Antigone doctrine was also applied in a case regarding social security. However, it remained unclear whether the theory can be accepted in purely civil labour cases. This uncertainty led to wildly diverging lower case law in which the different labour courts of appeal would constantly contradict each other. The discussion could be solved by the introduction of a new legal norm or by a clear decision of the Supreme Court. While the new rules of 2019 on evidence in civil procedures ignored the issue, the Supreme Court has now finally ruled on the application of the theory in a purely civil case.

In a judgement of 14 June 2021, the Supreme Court ruled on a dispute over the sale of a car. The parties both claimed having agreed on a different price.

However, the seller had submitted as evidence, a secretly recorded phone conversation with the buyer in which the buyer agreed on the price of the car. In its judgement, the Supreme Court stated that the recording should not be excluded from the procedure, if the reliability of the evidence seemed intact and the right to a fair trial of the buyer was not in jeopardy. The court must take into account all the circumstances of the case, including the manner in which the evidence was obtained, the circumstances in which the unlawful act was committed, the seriousness of the unlawful act and the extent to which it violated the rights of the other party, the need for proof on the part of the party committing the unlawful act, and the attitude of the other party.

Therefore, the Supreme Court appears to allow the application of the Antigone doctrine in civil cases. However, it does not mention the case of the “rule of form prescribed under penalty of nullity”. Moreover, it stated that the judge must take into account all the circumstances of the case. This is an important nuance to the Antigone test, and gives the judge in civil cases more leeway to balance in concreto whether or not the illegally obtained evidence should be excluded. Although this judgment does not concern an employment law case, it provides a clear direction to the employment courts on how to deal with illegally obtained evidence, in cases between private parties.

Key Action Points for Human Resources and In-house Counsel 

• When collecting evidence against an employee, follow the applicable rules to avoid any discussion on the legality of the evidence.
• When it is not possible to apply the rules or it is too late to do so, it could still be possible to use the improperly collected evidence if certain conditions are met, and if the judge finds it appropriate to do so, based on the circumstances of the case.
• The Antigone-doctrine should not be applied without nuances in cases concerning labour law.

Source: Cass. 14 June 2021, C.20.0418.N