“In matters of divorce, evidence can be provided by any means [...]. The judge can only exclude a piece of evidence from the proceedings if it was obtained through violence or fraud” (Court of Cassation, 1st Civil Chamber, June 17, 2009, no. 07-21.796).

The evidence used by spouses must meet the obligation of fairness. Thus, a spouse cannot submit to the court “a piece of evidence that was obtained through violence or fraud” (Article 259-1 of the French Civil Code).

A Principle Differently Appreciated by Civil and Criminal Courts

In Civil Matters

Traditionally, French civil judges were reluctant to accept the recording of a private telephone conversation made and kept without the knowledge of the person whose statements are being contested. However, this principle has evolved, particularly in family court.

Under the provisions of Articles 9 of the French Code of Civil Procedure (CPC) and 6 of the European Convention on Human Rights (ECHR), the Second Civil Chamber of the French Court of Cassation ruled on October 7, 2004, that “the recording of a private telephone conversation made and kept without the knowledge of the person whose statements are being contested, is an unfair practice that renders the evidence thus obtained inadmissible in court.” The civil judge emphasized the requirement of fairness in evidence as an element of the right to a fair trial, as per Article 6 of the ECHR (Fair Trial), rather than Article 8 ECHR, which relates to privacy.

In Criminal Matters

In criminal law, evidence is not subject to such strict rules and is generally free. Therefore, telephone recordings are admissible before a criminal judge.

The approach of the French Criminal Chamber of the Court of Cassation has long differed from that of the Second Civil Chamber.

This difference is clearly illustrated in a ruling from January 31, 2007. In this case, a wife submitted an affidavit in a divorce proceeding, which detailed severe violence committed against her by her intoxicated husband. A telephone conversation, recorded without her knowledge, revealed the false nature of the affidavit. The husband, after the submission of the affidavit, filed a complaint and joined the case as a civil party, presenting the transcript of the telephone conversation where the wife admitted that the affidavit was false. The Criminal Chamber of the Court of Cassation, agreeing with the lower courts, held that “the appellate court, which admitted as evidence the recording of a private telephone conversation, did not violate Article 6 of the European Convention on Human Rights, given that the evidence was justified by the need to prove the facts of which the recorder was a victim and by the requirements of defense” (Court of Cassation, Criminal Chamber, January 31, 2007, no. 06-82.383, Bull. crim. 2007, no. 27, p. 100).

The Criminal Chamber thus effectively dismisses arguments related to the fairness of evidence whenever justified by “the needs of defense.”

What About Domestic Violence or Harassment Before the Family Court Judge?

The contrast between these two approaches, civil and criminal, has occasionally softened, often in favor of the criminal chamber's position.

Indeed, both the French Court of Cassation and the ECHR favor a proportionality assessment between the infringement of fundamental rights and the necessary and legitimate preservation of the litigant's rights, including the right to evidence.

It follows from some rulings of the French Court of Cassation that in cases of conflict between the right to evidence and the right to privacy, the former prevails if the lower courts establish “the necessity of the contested production for defense purposes and its proportionality to the intended goal.”

We provide some examples of civil and criminal case law related to moral harassment or domestic violence.

Submission of Recordings to Prove Domestic Violence or Moral Harassment

Despite case law that has generally been unfavorable to victims of domestic violence or harassment by their spouse, especially before the civil judge, the Paris Court of Appeal delivered an unprecedented ruling on March 23, 2021, stating that: “The recording of telephone conversations without the knowledge of the recorded person is, in principle, an unfair practice that renders the evidence thus obtained inadmissible in court. This rule only deviates when the contested production is indispensable for exercising the right to evidence and is implemented proportionately to the objective pursued and the conflicting interests at stake. [...] These conditions are [...] met concerning the recordings made by Mrs. Y of conversations exchanged on six occasions between herself and her husband, in the privacy of their home and in the presence of their twenty-month-old child, solely to substantiate the likelihood of the psychological and physical violence alleged in support of her protection request” (Paris Court of Appeal, March 23, 2021, no. 21/01409).

Details on Audio Recordings

• Court of Cassation, Criminal Chamber, January 31, 2007, no. 06-82.383, Bull. crim. no. 27: A husband undergoing divorce proceedings can submit the recording of a telephone conversation without his wife's knowledge to demonstrate the falsity of the serious accusations of violence made against him by his wife.

  The Court only requires that the rights of defense be respected, as mandated by Article 427, paragraph 2, of the French Code of Criminal Procedure, meaning that the parties must have been able to debate the probative value of the unfair evidence (Court of Cassation, Criminal Chamber, June 11, 2002, no. 01-85.559, Bull. crim., no. 131; Court of Cassation, Criminal Chamber, January 27, 2010, no. 09-83.395, Bull. crim., no. 16).

• Court of Cassation, Criminal Chamber, January 31, 2012, appeal no. 11-85464: The Criminal Chamber of the Court of Cassation ruled that audio recordings obtained without a person’s knowledge are admissible in court as evidence to file a complaint against that person for criminal offenses, without the right to privacy or even the violation of professional secrecy constituting valid limitations.

Submission of a Diary

• Court of Cassation, Second Civil Chamber, January 29, 1997, no. 95-15.255, D. 1997. 296, note Bénabent: The Second Civil Chamber of the Court of Cassation, in a 1997 ruling, allowed a husband to submit his wife’s diary and letters during divorce proceedings (admittedly obtained without fraud or violence), even though these pieces of evidence clearly infringed on her right to privacy.

  The Second Civil Chamber has since confirmed its jurisprudence (Court of Cassation, Second Civil Chamber, May 6, 1999, no. 97-12.437, JCP 1999. II. 10201; D. 2000. 557).

  The European Court of Human Rights (ECHR, May 13, 2008, request no. 65097/01, N. N. and T.A. v. Belgium, RTD civ. 2008. 650, obs. Marguénaud; JCP 2008. I. 167, obs. Sudre) ruled that the submission of correspondence in divorce proceedings is subject to two cumulative conditions: the holder of the correspondence must not have acquired it irregularly, and the documents must not be protected by professional secrecy.

Submission of Correspondence

Letters or emails (Court of Cassation, First Civil Chamber, May 18, 2005, no. 04-13.745, Bull. civ. I, no. 213; AJ fam. 2005. 403), or SMS (Court of Cassation, First Civil Chamber, June 17, 2009, no. 07-21.796, Bull. civ. I, no. 132; AJ fam. 2009. 298, obs. S. David), may be submitted, but only if they were not obtained through fraud or violence.

Submission of SMS

In a ruling dated May 23, 2007 (Court of Cassation, Social Chamber, May 23, 2007, no. 06-43.209, Bull. civ. V, no. 85; D. 2007. 1598, obs. Fabre), the Social Chamber of the Court of Cassation allowed that sexual harassment could be proven by SMS: “While the recording of a private telephone conversation made without the knowledge of the person whose statements are being contested is an unfair practice that renders the evidence thus obtained inadmissible in court, the same does not apply to the use by the recipient of text messages, known as SMS, which the sender cannot ignore are recorded by the receiving device.”