Marie-Aude Beernaert

Belgium : From Categorical Nullities to a Judicially Created Balancing Test

Although Belgium’s legal system was based on the French system and reflects many of its insitutions, such as “nullities”, the approach of the Belgian courts was quite different. Already in 1923, the Belgian Court of Cassation ruled that any “nullity” would ineluctably lead to exclusion of any evidence that was gathered as a result of the violation which was categorized as a “nullity”. This doctrine was reaffirmed by the Court of Cassation in 1986. In 1990 and 1995, however, rulings of the Court of Cassation signalled a slight softening of the rule of absolute exclusion, and this trend became law in the 2003 decision of the Court of Cassation, nicknamed the Antigone decision, after the police operation which led to the illegally seized evidence. In this landmark decision, the Court refused to suppress all evidence gathered in violation of the law, but limited exclusion to situations where the evidence was gathered following a violation punishable by a “nullity”, where the violation also affected the credibility of the evidence, or affected the defendant’s right to a fair trial. In Belgium, as in many European countries, the decision of the European Court of Human Rights in Salduz v. Turkey, discussed in detail in Chap. 16, has led to changes affecting the right to counsel during interrogations and exclusion of statements taken in violation thereof.