Loyalty principle, evidence administration, fundamental rights, proportionality control, judicial authority, human rights, ECHR, unfair evidence, individual freedoms, right to evidence
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Abstract
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Abstract
The principle of loyalty in evidence administration has evolved to prevent clandestine methods and ensure respect for individual rights, with a balance between protecting freedoms and using legitimate evidence.
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[...] In all cases, the main idea remains the same: the search for truth should not justify an unjustified violation of individual freedoms and this point is particularly important to consider for managers (doc 22). Thus over time, this requirement has evolved and become more comprehensive, taking into account technological advancements. Courts therefore pay particular attention to recordings (audio and video) made to determine whether the evidence remains admissible. The requirement of loyalty applies in a transversal manner to the entire probative procedures. In case of doubt about the necessity of the means of obtaining evidence, the judge will give precedence to the respect of dignity and private life (doc 20). [...]
[...] This requirement has since been extended to other technical means (doc as well as to other branches of law (and even recognized as a general principle of law), such as in criminal matters (docs 15 and 27) by the exclusion of evidence obtained by excessive cunning or coercion (docs 9 and 11). In civil matters, loyalty takes on a different meaning through a greater permissibility by the judges. In parallel to the principle of loyalty, and the right to be informed of a surveillance device (doc there is also a right to evidence. [...]
[...] The idea of the loyalty of the evidence has gradually emerged in the doctrine, so that an evidence called "unloyal" is no longer so easily rejected. Nevertheless, the case law (doc 21) has gradually moved towards a proportionality control between the interest in demonstrating a fact and individual freedoms (doc 22)." The degree of articulation of this proportionality is a very pressing factor of interest. Thus, the progressive affirmation of this principle of loyalty is confronted with the analysis of the search for a new balance between the protection of fundamental rights and the legitimacy of these proofs (II). [...]
[...] The conflict between loyalty and the right to evidence is resolved through confrontation and arbitration of interests (doc 12). If this has been obtained in a questionable manner, the judge first checks that there is no other means of evidence that is less intrusive and, on the other hand, if the violation of fundamental rights is not disproportionate (doc 10). The case law sometimes admits recordings made without the knowledge of a third party, provided they are of crucial importance and do not constitute an excessive violation of the right. [...]
[...] Finally, the justification and necessity of the evidence presented are just as many elements to be assessed. The judge wonders if the evidence could not have been obtained otherwise, and if the party had no other option to prove serious facts such as harassment, discrimination or a penal fault. Thus, courts may exceptionally admit a 'dishonorable' proof in certain contexts, particularly if an employee felt victimized by difficult-to-prove behaviors (doc 19). Conversely, evidence is regularly excluded when it appears that the author of the recording deliberately violated fundamental rights in a disproportionate manner (docs 17, such as in cases of medical confidentiality violence (doc 20). [...]
