For years, litigators in civil proceedings have been used to compensate the lack of evidence by the so-called production of "attestation", i.e. non-formal written testimony emanating from a person stating his/her personal knowledge of the litigious facts for the defendant or the petitioner.
On the other hand, the Belgian Judicial Code specifically frames the hearing of witness in civil suits. Such procedure is however burdensome and, where rarely admitted by the judge, it often results in slowing down the course of the pending action.
To address the disadvantages of those processes, a form of written witnessing has been specifically recognized and regulated under articles 961/1 et seq. of the Belgian Judicial Code (Section Vbis-Production d'attestations/Overlegging van schriftelijke verklaringen) - as inserted by the Act of 16 July 2012 - and shall apply to pending civil procedures as from 13 August 2012. Consequently, a written testimony which is non-compliant with this new Section, could be set aside by the judge in case the latter is of the view that it does not offer sufficient guarantees. In that respect, the Order of the Belgian French and German Bars recommends that the litigants ensure that their clients replace any ‘old' attestations already produced in a pending litigation by new ones, compliant with the legal requirements now in force.
The newly regulated written testimony is admissible to the extent the testimonial proof (art. 1341 et seq. Civil Code and art. 25 Commercial Code) would be allowed in the case at stake. It can be produced by the parties or at the judge's request in order to enlighten the latter on the disputed facts whose the third witness is personally aware of.
From a formal point of view, the written testimony shall:
• be drew up only by persons eligible to be heard as witness (as per art. 931 Judicial Code);
• contain the report of the facts witnessed or personally noticed by the testimony's author;
• mention its author's first name, name, date and place of birth, and profession;
• mention, as the case may arise, the family or marriage relationship, subordination, collaboration or community of interests vis-à-vis the parties;
• set out that (1) it is established in order to be produced before the court and (2) its author is aware that a false statement will trigger criminal sanctions against him; and
• be in writing, dated and signed by its author (who shall justify his/her identity by attaching any official document bearing his/her signature).
The judge may in any case proceed with the hearing of the written testimony's author.
We trust that the use of this new tool by practitioners should participate in a more fluent conduct of civil proceedings.
