Philip Traest

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.

The Autonomy of Defense and Defense Counsel

The role of defense counsel during criminal proceedings is generally understood as being to provide legal assistance and personal support to clients and help in observing the rules of criminal procedure. Recently, however, safeguards of this legal assistance have been under increasing pressure. This raises the important question whether the true autonomy of defense counsel is being threatened by these developments. International, european and Belgian legislative initiatives will be discussed in considering this question, but also the jurisprudence of the courts of Luxembourg (european Court of Justice) and strasbourg (european Court of Human Rights). This discussion will offer an analysis of the norms relating to the independence of defense counsel that can be inferred from relevant case law.