French Civil Judges can now 考虑不公平获得的证据
The French Court of C屁股ation has made a significant shift in jurisprudence in a ruling dated 12月22日, 2023. It now accepts that civil judges may, 在某些条件下, 考虑不公平获得的证据, 从而与 欧洲法学 (卡斯. 屁股. 全. 22-12-2023 No. 20-20.648 BR, Sté Abaque bâtiment services v. B.; C屁股. 屁股. 全. 22-12-2023 No. 21.11.330br, strexel dsm - development v. B.)
Court of C屁股ation evolved its position and thus conformed to 欧洲 law
The Court of C屁股ation issued two awaited decisions on the admissibility (or non-admissibility) of evidence obtained “unfairly” (Friday, 12月22日, 2023)在这个场合, the Court of C屁股ation reversed its jurisprudence.
Covert recording as a means of proof
In the first case presented, a commercial manager contested his dismissal for gross misconduct. 在上诉, the judges had declared inadmissible the evidence provided by the employer in support of the employee’s dismissal, as these proofs were collected through clandestine recordings of preliminary interviews, concluding that the dismissal of the employee was unjustified. These elements proved that the employee had expressly refused to provide his employer with the tracking of his commercial activity.
The employer filed an appeal in c屁股ation, arguing “那段录音, even when obtained without an employee’s knowledge, is admissible and can be produced and used in court as long as it does not infringe on the rights of the employee, that it is essential to the right to evidence and to the protection of the employer’s interests, and that it could be discussed in the context of a fair trial.“
A solution unchanged since 2011 in civil matters
The Court of C屁股ation was asked to answer the following question: “Should it be admitted, on the model of the 欧洲人权法院, that evidence obtained unfairly can, 在某些条件下, be submitted to the civil judge?” The Court of C屁股ation emphasized in the communiqué attached to the two decisions of 12月22日, 2023, ,“new technologies offer litigants additional perspectives on how to report proof of their rights, but they also present unprecedented risks of infringement on fundamental rights (privacy, 专业保密, 等.).“
The position of the Court of C屁股ation, since a Plenary Assembly ruling of 2011, 坚持一条规则:当证据被不公正地获取时, 这是, when it is collected without a person’s knowledge, 通过一种策略或计谋, a judge cannot take account of such evidence” (卡斯. 屁股. 全. 7-1-2011 no . 09-14.316及09-14.667 PBRI: RJDA 7/11第653号).
The Court of C屁股ation reverses its Jurisprudence
然而, 值此诉讼之际, it evolved its position and thus conformed to 欧洲 law. In its response to the posed question, it recalled ,“the 欧洲人权法院 does not, 作为原则, rule out the admissibility of evidence considered unfair.“
It also cited penal jurisprudence, according to which “no legal provision allows the 有罪的inal judge to exclude means of proof produced by individuals solely on the grounds that they were obtained illicitly or unfairly”(卡斯. 有罪的. 11-6-2002 No. 01-85.559 P).
Unfairly obtained evidence is admissible 在某些条件下
The Court of C屁股ation thus decides ,“在民事审判中, the illegality or unfairness in the obtaining or production of a means of proof does not necessarily lead to its exclusion from the debate. 法官必须, 当请求, 屁股ess whether such evidence affects the fairness of the overall procedure, weighing the right to evidence and the opposing rights involved, the right to evidence justifying the production of elements infringing on other rights provided that this production is indispensable to its exercise and that the infringement is strictly proportionate to the aim pursued.“
注意:
Even if unfairly obtained evidence is no longer automatically inadmissible, the conditions required by the Court of C屁股ation for its admissibility are very demanding: the judge must first inquire into the legitimacy of the control exercised by the employer and verify if there were concrete reasons justifying such recourse. He must then seek whether the employer could not achieve an identical result using other means more respectful of the employee’s personal life and must finally 屁股ess the proportionality of the infringement on personal life in relation to the pursued goal (卡斯. soc. 8-3-2023 No. 21-20.798 fs-d, 21-17.802 FS-B和21-20.848 FS-B).
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Information by ALARIS AVOCATS, English speaking lawyers in 法国 (Paris)