Does a new Supreme Court decision allow partially illicit evidence to be submitted?

Published on : 19/01/2021 19 January Jan 01 2021

A recent decision of the French Supreme Court of 25 November 2020 creates a surprising precedent on the topic of the validity of evidence that can be submitted in court.

The ruling allows evidence, deemed unlawful in regard to a law on information technology and civil liberties, to be admitted in court proceedings.

It marks an evolution of the Social Chamber's case law on the unlawfulness of evidence obtained by means of data that should have been declared to the CNIL, the French Data Protection Body.

In the case at hand, an employee (journalist) challenged his dismissal. He maintained that the evidence produced by his employer was illicit, since the files in question had not been declared to the CNIL.

The Court ruled that the unlawfulness of evidence does not systematically result in its rejection. Rather, it invites the trial judge to examine, in the context of a proportionality review, whether the infringement of the employee's personal life by such production is justified in the light of the employer's right to present evidence. It also specifies that such production must be “indispensable” and no longer merely “necessary” for the exercise of this right.

The ruling is neither entirely surprising nor shocking, in fact: it draws inspiration from the decisions of the ECHR in respect of Articles 6 and 8 of the European Convention on Human Rights. Those rulings had admitted evidence obtained at the expense of the right to privacy under Article 8 of the Convention or in breach of domestic law. This was justified on the basis of the right to a fair trial and the right to evidence.


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