Written testimony can no longer be drafted as you see fit!

As from 13 August 2012, the Judicial Code will regulate written testimonies drafted by parties in order to support their case in court. The new provisions of the Judicial Code are modelled after the French regulation.

Written testimonies are very often used in labour courts and courts of appeal (we are essentially speaking about testimonies from co-workers, clients, suppliers, etc.).

Next to the account of the facts, a written testimony will henceforth need to include the following elements:

• the first name, surname(s), date and place of birth, place of residence and profession of the author of the testimony;
• if necessary, the degree of family relationship or affinity with the parties, or whether there is a link of subordination, a form of cooperation or mutual interest between the author and the parties;
• the statement that the testimony is drafted in order to be submitted in court and that the author is aware of the fact that he/she exposes himself/herself to the risk of incurring sanctions when making false statements;
• the date and signature of the author of the testimony;
• a document that demonstrates the identity of the author must be enclosed with the testimony.

The Judicial Code deliberately does not provide for specific sanctions in the event the new rules are not respected and leaves it to the courts and courts of appeal to assess whether credibility must be given to written testimonies non-compliant with the rules above. An oral hearing of the author of the testimony is always possible (at the request of the judge or the parties).

> Action point

Ask third parties who draft testimonies in litigation to include all information in conformity with the Judicial Code. As a rule, it is better to avoid the use of standard forms so as to emphasize the unbiased nature of the testimony.