Admissibility of Unfair Evidence in Civil Proceedings

Extract

[...] Then, the solution Necel is out of sync with penal case law. In fact, Article 427 of the Code of Criminal Procedure provides that 'except in cases where the law provides otherwise, offenses can be established by any means of proof and the judge decides according to his intimate conviction'document 11). The difference in regime with criminal matters may encourage the litigant to act beforehand through the penal route to circumvent the more restrictive regime of civil matters and then rely on the authority of the thing judged attached to the penal decision before the civil judgedocument 13). [...]

[...] The more so, as the law should not lead to a climate of suspicion where everyone would spy on everyone else and which would be very little compatible with the 'live together'. The solution of the Court of Cassation approaches that of the administrative judge. Loyalty remaining in fact little integrated as a conceptual principle before the latterdocument 9). An off-solution The Court of Cassation's classic solution fails due to its mismatch, both with European and penal jurisprudence, as well as the legislator. [...]

[...] It thus appears that illicit evidence and unfair evidence are only admitted under the double condition of satisfying the necessity and proportionality controls. In this sense, Olivia Guilhot pointed out that this reversal 'is not necessarily the door open to all forms of unfair evidence'document 16). The necessity control requires the study of several elements. Positively on the one hand, the disputed evidence must convince the judge, i.e. the evidence alone is of a nature to found the claim of the party that invokes it. Negatively, one must ensure the 'insufficiency' of the other means of proof. [...]

[...] Excess is 'naturally' recognized if the evidence is not necessarydocument 6). The Court of Cassation has subsequently confirmed its jurisprudence Rexel, notably in a decision of the social chamber of 17 January 2014. If it renews the principle of the jurisprudence Rexel, it applies it to dismiss the registration in question because the registration was not necessary to support the employee's claimdocument 15). A true balancing of interests is made. Thus, the European Court was able to rule that the production by a spouse of messages exchanged by his wife on a dating site in the context of a divorce procedure is not an infringement of the right to respect for private lifedocument 5). [...]

[...] Thus, the civil judge will now verify that the unfair or illicit evidence produced in the debate is indispensable to the exercise of the right to evidence, considered as an autonomous fundamental right that would be derived from Article 6 of the European Convention on Human Rights, seat of the right to a fair trialdocuments 3 and 8). This evolution does not come as a surprise in light of the aspiration for truth and transparency. In other words, the need to bring judicial truth closer to factual truthdocument 13). In addition, this reversal takes into account the probative difficulties that parties may face in proving their right. But also, it allows for a perfect alignment of illicit evidence and unfair evidence, the tracing of a watertight border between these two notions being delicatedocument 7). [...]