Internal investigations in Belgium: mixed signals given by the Supreme Court and the legislator

Last month, the Belgian Supreme Court ruled in a case concerning a former employee who, following an internal investigation, had been first dismissed by her employer for and subsequently convicted of several criminal offences, including forgery and fraud. In its decision, the Supreme Court seized on the opportunity to clarify the scope of the due process rights in the context of an internal investigation. This decision comes at a time when the Belgian Parliament has adopted the new Private Investigations Act (PIA), which will overhaul the legal framework governing internal investigations in Belgium. Interestingly, at least on some points, the Belgian legislator has taken a different approach than the Supreme Court. We consider these developments below.

Due process in internal investigations today

In the Supreme Court’s case, the appellant raised two main arguments concerning due process, arguing that both her right to a trial within a reasonable time frame and her rights of defence had been violated because of the preceding internal investigation.

Trial within a reasonable time frame

First, the appellant argued that she had not been offered a trial within a reasonable time frame, as protected under Article 6 of the European Convention on Human Rights (the ECHR) and Article 14.3.c of the International Covenant on Civil and Political Rights (the ICCPR).  She argued that the relevant time period commenced on her initial interview by the employer’s internal investigation service rather than her first interrogation by the judicial authorities in the later criminal investigation.

The Supreme Court dismissed this argument.  It reiterated that the starting point for the calculation of the reasonable time frame is the moment when the person is formally accused or notified of any other act of the preliminary investigation or judicial investigation that gives rise to the threat of criminal prosecution.  The Supreme Court clarified that an internal investigation by a private company into potential criminal conduct, without the involvement of any public authority responsible for the detection and prosecution of a crime, does not constitute a criminal prosecution under Article 6.1 of the ECHR.  The company and its internal investigation service are not authorities that have been authorised by a public authority to detect or prosecute crimes.  Consequently, an interview by a private company’s internal investigation service does not mark the commencement of the reasonable time period.

Rights of defence

Second, the appellant asserted a violation of her rights of defence, as protected under Article 6 of the ECHR.  She argued that the evidence gathered during the internal investigation was compromised by coercion and exploitation of her vulnerable position and criticised that she did not have a lawyer to assist her during this phase, including during her interview by the employer’s internal investigators.

The Supreme Court confirmed that Article 6 of the ECHR is, as such, not applicable to internal investigations even if they relate to facts that may constitute a criminal offence, and even when those internal investigations are followed by criminal investigations.  The Supreme Court also clarified that the assistance of a lawyer is not mandatory during internal investigations (but only during the ensuing criminal investigation).

This does not mean that internal investigations are not subject to overall requirement of fair play: the Supreme Court emphasised that the right to a fair trial must be considered in its entirety, including by reference to the facts of the preceding internal investigation such as the quality, reliability, and accuracy of the evidence collected during the internal investigation, the circumstances under which this evidence was obtained, and the extent to which the accused person has been given the opportunity during the criminal proceedings to challenge the evidence.  As previously, it is up to the judge to assess the probative value of all the evidence presented, as well as the correctness and credibility of any challenge thereto, considering all the circumstances of the case.

Implications for employers

This decision is significant for employers conducting internal investigations into employee misconduct.  It confirms that internal investigations are not subject per se to the fair trial safeguards in criminal proceedings as provided for in Article 6 of the ECHR, and that employees are not entitled to a lawyer during internal investigations.  It also confirms that a private internal investigation is not sufficient to trigger the commencement of the reasonable time period.

Nevertheless, it is important for employers to conduct internal investigations with fairness, objectivity, and rigour, and with a general respect for due process.  Employers should remain careful to avoid any form of coercion or undue pressure that could taint the evidence.  Going forward, conducting internal investigations in accordance with fair play principles will become increasingly important in light of the new Private Investigations Act (the PIA) (see below), that provides for the sanction of nullity if specific obligations (including fair play principles) are not observed.  This may impact any employment related measures (eg termination of employment) that are taken on the basis of the internal investigation.

Finally, as indicated above, the Supreme Court confirms that assistance by a lawyer during internal investigations on the side of the employee(s) involved is not mandatory.  Until now, assistance by a trade union delegate in an internal investigation was, in principle, not mandatory either (although certain exceptions may apply), but in practice almost always accepted by the employer if the employee so requests.  As set out below, this principle has in the meantime been partially superseded by the Belgian legislator, who now formally acknowledges that an interviewee has the right to be accompanied by their person of choice in investigations falling within the scope of the new PIA.  Even outside of the scope of the new PIA, it remains essential to carefully evaluate whether the presence of personal legal counsel or another companion, such as a trade union delegate, is appropriate given the circumstances and the intended goals of the investigation. 

Legislative reform: the new Private Investigations Act (PIA)

Early May 2024, the Belgian parliament adopted the new PIA.  The PIA fundamentally changes the regulatory landscape governing private investigations in Belgium.  The Belgian legislator has taken a radical approach to private investigations, with a very strong focus on protecting the rights and interests of the subjects of an investigation.

The new PIA has a broad scope of application and will not only apply to private detectives, but also to private investigations carried out within a company by an established internal investigation service.  As the PIA targets established internal investigations services, this suggests that ad hoc reviews conducted by internal employees who are not structurally involved in internal investigations (eg internal HR staff), should not fall within the scope of the PIA.

The most significant exceptions to this broad scope of application are as follows:

  • Investigations carried out by outside counsel will remain outside the scope of the PIA; and
  • Investigations carried out to comply with other legal requirements, including investigations carried out under the EU whistleblowing framework will also remain outside the scope of the PIA.  We anticipate that the scope of this exemption will become a topic of debate, potentially leading to considerable ambiguity in its practical application.

The obligations set out in the new PIA are far-reaching and will have a significant impact on how to conduct internal investigations from start to finish.  In particular, we consider the following provision in the PIA to be game-changing:

  • License requirements: Private investigators, including internal investigation departments, are now subject to a licensing requirement.  If the obligations in the PIA are breached, their license may be revoked and administrative fines may be imposed.
  • Investigative report and file: At the latest one month after the last investigative act, a final written report must be completed, which must comply with specific requirements set out in the PIA.  In cases of urgency, the first report may be delivered verbally, but still needs to be followed up with a written report eight days later.  This report becomes part of a broader investigative file that must be compiled during the investigation.
  • Judicial review: The Belgian courts have the right to obtain a copy of the full investigative file (not only of the final report) in order to enable them to assess compliance with the new rules and to evaluate the probative value of the evidence, considering all the information the file contains.
  • Interviews: Interviewees must be informed of a number of specific rights, which closely mirror the rights granted in police interrogations.  These include the following:
    • The right to correct the interview minutes and to obtain a copy of these.  If the interview is recorded, the interviewee may obtain a free copy of the recording. 
    • The right to be accompanied by another person.  This can be personal legal counsel, but also a trade union representative or another companion.  As noted above, when the PIA does not apply (for example when the investigation is carried out by outside counsel), the Supreme Court confirmed that the interviewee does not have this right under Article 6 of the ECHR.
  • Reporting obligations: If the internal investigation uncovers clear indications of criminal conduct, there is a duty to report this to the public prosecutor or the investigative judge.  The public prosecutor and the investigative judge can then order the suspension or even termination of the internal investigation.  These new obligations make the interplay between an internal investigation and a criminal investigation even more challenging, although it remains unclear how the authorities will deal with a potential avalanche of reports. 
  • Policies: Employers are now under a strict obligation to establish clear written policies that set out the rules on the internal investigation.

We expect the new PIA to come into force in the coming weeks.  For some (but not all) rules, a transitional period has been established.  For example, transitional periods apply to the new license requirements (six months) and to establishing the written investigation policies (two years).  However, many other obligations will have an immediate impact on internal investigations.  

Breaches of the new rules may give rise to administrative penalties, but we expect their real teeth to lie in the sanction of nullity that has been established in case of the non-compliance of certain obligations.  This will mean that the Belgian courts may declare the findings of an internal investigation null and void, which will have far-reaching consequences for employment law related measures, including disciplinary action.