Nullity of irregularly obtained evidence limited - Legislator roots the so-called Antigoon case law in criminal law

The situations in which irregularly obtained evidence will be declared null and voided are now rooted in the legislation.

Based on a case law developed since the 1920's, irregularly obtained evidence was, until recently, consistently excluded from legal proceedings. For example, an employee guilty of theft who was caught on camera, could not be punished when the camera appeared not to have been introduced with respect of the applicable procedure (CBA 68) and the privacy of the employees.

Since the so-called Antigoon judgement of 14 October 2003 and its subsequent case-law in criminal procedural law, the Supreme Court has limited the situations in which such irregularly obtained evidence must be excluded to the following cases:

• when it concerns non-respect of a formal requirement which is prescribed under a penalty of nullity; or
• when the irregularity concerned would affect the reliability of the evidence; or
• when the use of the evidence would be a violation of the right to a fair trial.

Those principles are being applied by labour courts, although not unanimously.

With the Act of 24 October 2013, the legislator rooted the three cases in which evidence must be declared null and void in the Code of Criminal Procedure, so the principles are at least established with regard to criminal procedure law.

> Action point

When gathering evidence, the applicable procedures and privacy rights of the employees need to be respected. Evidence obtained in violation of the rules, may be excluded in some situations.