General

1 Everyone has the obligation to offer help
1.1 When
1.2 Legal obligation
1.3 The holder of the secret’s own defense
1.4 In what cases does the holder of the secret have to reveal the facts?
1.5 Testimony in court
1.6 Defense in court
1.7 Several cases of liability

 

1 Everyone has the obligation to offer help

1.1 When?

Aid workers can have a conflict of conscience of wanting to respect the law on the one hand and having their personal conviction with judicial insecurity on the other hand.
The means and capabilities of the person who is meant to act, has to be taken into account. Professional people are expected to make more effort and provide more help.
The first obligation consists in offering the help that is most obvious at that moment, for example alerting the specialist bodies. If it is clear later that this help was not effective or successful, this is no cause for being considered in default.
For example: wrong diagnosis of a doctor (while on the other hand, faking help is)
If a third party is called upon to help, it must be checked whether this appeal is being followed.
In the case of professional secrecy, one can be called upon to reveal this secret, if one judges this is necessary.

There are conditions:

 

1.2 Legal obligation

A crime has to be reported to the judicial authorities. If this is not done, there is no criminal prosecution , it is rather a moral issue. This ‘obligation’ does not apply to those who have to respect professional secrecy. Even in the case of a crime, professional secrecy has to be respected. This is not the case if the agent or medical examiner has been notified by the victim.

Different situations:

1.3 The holder of the secret’s own defense

Everyone has the right to defend himself in a criminal or disciplinary case. He can reveal his own secret at his defense.

1.4 In what cases does the holder of the secret have to reveal the facts?

The holder of the secret has the obligation to break the professional secrecy in emergencies. Criminal law which imposes secrecy, will become subordinate to the state of emergency.

Conditions being considered emergencies :

The professional secrecy will be violated but no criminal action will occur if it concerns an immediate, serious or imminent danger. This will be reported to the police or judicial authorities.
The protection of a child is of higher importance than respecting professional secrecy.
Professional secrecy cannot be used in the case of parents or guardians since they hold parental authority. In the case of an almost adult it will be assessed whether he already has a personality of his own.
The minor or almost adult also has the right to secrecy with respect to his parents. The protection of the child is of higher importance than parental authority, example if children are being abused by parents or guardian.

1.5 Testimony in court

Can only be called upon by the examining magistrate, judge or parliamentary committee in the form of an examination under oath. This can be an oral or written examination.
Still, revealing more than what is asked, remains punishable since additional information resorts under professional secrecy. When a helper is called to testify under oath, he has the obligation to appear, he will take the oath and after hearing the question, he himself can decide whether he will answer or not. This depends on his opinion whether his testimony will damage the interests of the person in need. Still, the judge will have the last word in this. He will finally decide whether the information is more important than respecting the professional secrecy. If the helper is obliged to speak and he refuses to do so, he can be convicted for refusing to testify. When interrogated by the police or magistrate, no details can be revealed, if this happens we have a breach of professional secrecy.

 

 

 

1.6 Defense in court

A helper who has to defend himself in court, can reveal the secret. He can only reveal those secrets which are necessary for his defense, for example when the person entitled to know the secret is suspecting the holder of the secret to have made a professional mistake.

 

1.7 Several cases of liability