Fiches Belges
Measure Implementation
Measure possibility

Legal Framework
Applicable Framework

Competent authority
Request/decision
Execute/recognise measure

Accepted Languages
Languages

Execution Deadline
Deadlines

Legal info
Special requirements
Other information

Fiches Belges: France

Joint investigation teams (805)

1. MEASURE IMPLEMENTATION

France

Is this measure possible in your Member State under International Judicial Cooperation?

Yes

2. LEGAL FRAMEWORK

France

International legal framework applicable for this measure in your Member State

• References to national legislation: Article 695-2 and 695-3 Code of criminal procedure. Provisions on JITs are explicitly applicable to JITs involving non-EU States (Article 695-10 Code of criminal procedure). • Applicable instruments: • Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (2000 EU MLA Convention); • Council Framework Decision of 13 June 2002 on joint investigation teams (2002/465/JHA) (2002 EU FD on JITs); • 2nd additional protocol to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959; • Convention on mutual assistance and cooperation between customs administrations (Naples II) (2006); • United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988); • United Nations Convention against Transnational Organized Crime (2000); • United Nations Convention against Corruption (2003); • Agreement on Certain Aspects of Mutual Legal Assistance in Criminal Matters between the Government of the United States of America and the Agreement on mutual legal assistance between the European Union and the United States of America (2003)). • Agreement of 9 October 2007 between the Swiss Federal Council and the Government of the French Republic concerning cross-border cooperation in legal, police and customs matters.

3. COMPETENT AUTHORITY TO:

France

* receive the request/decision for judicial cooperation

• COMPETENT AUTHORITY TO AUTHORISE THE SETTING-UP OF A JIT Ministry of Justice (Criminal law department) • COMPETENT AUTHORITY TO SIGN A JIT Prosecutor/investigative judge in charge of the case NB: based on the stage of the investigation and the complexity of the case, the prosecutor can either supervise the investigation him/herself (in which case he/she would be the one signing the JIT) or request the appointment of an investigative judge (in which case the investigative judge is competent to sign the JIT). If, at an early stage of the investigation, the prosecutor establishes the JIT and an investigative judge is later on appointed, then a new JIT agreement must be signed by the investigative judge (since the prosecutor is no longer ‘in charge’ of the case). However, this situation is extremely rare in practice. Since JITs are signed in most serious cases, an investigative judge is almost always appointed and he/she is the competent authority to sign the JIT. France has set up eight specialised inter-regional courts to handle organised crime cases (‘juridictions interrégionales spécialisées’ in Paris, Lille, Rennes, Bordeaux, Lyon, Marseille, Nancy and Fort-de-France), which will in practice often (but not necessarily) be the courts involved in the JIT. • COMPETENT AUTHORITY TO ACT AS JIT LEADER Not explicitly foreseen in the legislation. In practice, the leading investigator usually plays the role of JIT leader, but, in accordance with general principles of French criminal procedure, he/she must refer to the investigative judge/prosecutor in charge who supervises the investigation. • COMPETENT AUTHORITY TO ACT AS JIT MEMBER(S) Police officers (‘police nationale’, ‘gendarmerie nationale’), customs officers (‘douane judiciaire’), tax officers (‘officiers fiscaux judiciaires’), provided they have been specifically appointed to act in judicial investigations. • CAPACITY OF PARTICIPATION OF EUROJUST NATIONAL MEMBERS (ARTICLE 9F OF EUROJUST DECISION) On behalf of Eurojust (Article 695-9 Code of Criminal Procedure). The prosecutor/investigative judge in charge shall agree with the National Member’s involvement. Obligation to invite Eurojust National Members to benefit from EU funding has been specifically implemented. o CONDITIONS AND CRITERIA Requirement of a prior letter of request (Article 13(2) 2000 EU MLA Convention and Article 1(2) 2002 EU FD on JITs): Not required (neither by legislation nor in practice). (if available) model of letter of request in EN version N/A Features of the case/stage of the investigation (police/judicial): French legislation does not clearly foresee whether the involvement in a JIT requires the prior initiation of a criminal investigation in France. In practice, however, an investigation is already ongoing when the setting-up of a JIT is considered. Due to the nature of this cooperation instrument, JITs are set up in practice in serious cross-border cases. Offences concerned: No specific requirement (except practice describe above). Time limits No specific requirement (except the general requirement to indicate a specific duration in the JIT agreement).

* execute/recognise the measure (if other than the receiving authority)

N/A

4. ACCEPTED LANGUAGES

France

Accepted languages for the request/decision

One version in french

5. EXECUTION DEADLINE

France

Deadlines for the execution of the request/decision (where applicable)

Not applicable

6. CONCISE LEGAL PRACTICAL INFORMATION

France

a. Special requirements

I- EXCHANGE OF INFORMATION AND EVIDENCE WITHIN THE JIT o EXTENT OF INFORMATION/EVIDENCE-SHARING WITHIN A JIT Unlimited and immediate, or Possible restrictions, conditions (and are they reflected in the JIT agreement and how?) No specific provision regulating exchange of information/evidence within a JIT. In practice, all information collected is exchanged by police with their counterparts without limitation. In addition, all evidence (i.e. recorded in a specific procedural act from the police or the investigative judge/prosecutor – e.g. so-called ‘procès-verbaux’) can be exchanged and used in judicial proceedings conducted in another State involved in the JIT. O DISCLOSURE AND CONFIDENTIALITY ISSUES WITHIN A JIT Types of information/evidence subject to disclosure: • Can all information and evidence be disclosed or are any restrictions in place? All evidence collected in the framework of a criminal investigation is included in the case file, which is subject to disclosure to the suspect and his/her defence lawyer in its entirety. All information and documents collected during the investigation that may be of relevance for the case (even if they do not contribute to establish the suspect’s guilt) must be included in the file. No uniform practice is set out concerning minutes of Eurojust coordination meetings, but provided that other partners agree, they might be included in the case file. • If yes, under which conditions: general for certain items or on a case-by-case basis? In the latter case, on what grounds do the restrictions apply? See reply above. • If classified information is being processed in a JIT, what is the national legal regime governing the processing and sharing of such information? In France, classified information refers mainly to military secrets, and, as a consequence, the inclusion of classified documents in the case file is rather exceptional. If such inclusion is necessary, documents need to be ‘declassified’ (approval given by a specific administrative committee) before being included in the case file. Once this formality has been complied with, information and documents concerned can be exchanged within the JIT like any other evidence and used by the JIT partners. • Does disclosure include the JIT agreement and/or the operational action plan (OAP)? This issue is not explicitly regulated by French legislation. Based on principles mentioned above, the JIT agreement will most likely be included in the file, as it constitutes the legal framework of the cooperation with the other States. When established, the OAP is usually not included in the case file. Stage of proceedings when disclosure takes place: investigation, arrest of the suspect(s), charging of the suspect(s), closing of the investigation/indictment, trial, other. To be specified where applicable: in particular, if the scope of disclosure varies at different stages of proceedings. When the investigation is carried out under the supervision of the prosecutor, disclosure occurs at the stage of prosecution; the person(s) summoned to appear before the court and/or his/her lawyer(s) have access to the case file to prepare for the trial. When the investigation is carried out under the supervision of the investigative judge (likely in JIT cases – cf. supra), disclosure occurs four working days before the suspect appears before the investigative judge to be officially notified of the charges against him/her (procedural step called ‘mise en examen’). From that moment on, the suspect’s lawyer can consult the file. However, in serious cases such as those in which a JIT is set up, this first interrogation by the judge occurs immediately after the arrest of the person and interview by the police . In such case, the suspect’s lawyer can consult the file just before the interrogation. [During police custody, French legislation foresees a limited disclosure of evidence to the suspect (right to receive a copy of the record of notification of his/her rights, including the offences suspected, right to receive a copy of his/her medical examination, right to receive a copy of his/her interview(s) by the police)]. Thus, in JIT cases, disclosure occurs at the time of the operational phase, i.e. the arrest of the suspects, not before. From this moment on, access to the file is ensured until the trial phase. Conditions of disclosure. In particular: beneficiaries of access (the suspect(s), the victim(s), their respective lawyer(s), other interested parties; how access is granted (consultation of records of proceedings, handover of copies, other forms…). Access to the file potentially includes the possibility to consult it (to take notes) and to receive a copy. During the phase of the proceedings supervised by the investigative judge, the file can be consulted by lawyers appointed by the parties only (i.e. lawyers appointed by ’personnes mises en examen’ (suspects) and ‘parties civiles’ (victims)). Those lawyers can also receive a copy. In addition, the rights of the parties themselves to receive a copy of the file are limited (i.e. the ‘personnes mises en examen’ (suspects) and ‘parties civiles’ (victims)): - When the suspect/victim is assisted by a lawyer, only the lawyer can receive a copy. He/she can forward a copy to the suspect, but the judge can oppose this action on specific grounds (risk of pressure on other persons involved in the proceedings); - When the suspect/victim is not assisted by a lawyer, he/she can directly request a copy of the file. However, this request may be refused by the judge on the same grounds as mentioned above. In both cases, the decision of the judge can be challenged before the Court of Appeal. At the prosecution stage, the case file can be consulted by the lawyers of the parties (i.e. prosecuted persons and ‘parties civiles’).The lawyers are also entitled to receive a copy. If the parties are not assisted by a lawyer, they can consult the case file themselves and receive the copy. o NATIONAL RULES ON CONFIDENTIALITY ON THE PART OF THE JUDICIAL AUTHORITIES Any person contributing to the proceedings – including judicial authorities – must comply with rules on professional secrecy. Non-compliance with this obligation is a criminal offence, punishable by imprisonment of a duration of up to one year and a fine of up to EUR 15 000. In addition, the communication of a case-related document to a third party by a person having received a copy of the file is punishable by a fine up to EUR 10 000. II- PARTICIPATION OF SECONDED MEMBERS TO INVESTIGATIVE MEASURES o PARTICIPATION OF JIT MEMBERS SECONDED BY ANOTHER STATE TO INVESTIGATIVE MEASURES CARRIED OUT DOMESTICALLY Explicitly provided for in the law? Yes, with the consent of the seconding State (article 695-2 of Code of Criminal Procedure). Procedure (e.g. consent of JIT leader of the State of operation, etc.) Seconded members shall operate under the supervision of the judicial authority in charge of the case (investigative judge/prosecutor). Conditions and limits? Seconded members may, on the entire French territory: - Record any offence committed in their presence in the framework of JIT activities; - Interview people who might provide information in relation to the case investigated by the team. For these first two items and in line with Article 4 of 2000 MLA Convention, French legislation specifies that formalities resulting from the legislation of the seconding State might be observed, provided that such observance would not undermine guarantees resulting from French criminal procedure ; - Assist French investigators in the performance of their duties; - Carry out surveillance and, if granted with a special authorisation, covert investigations. In this situation, French legislation specifies that general conditions foreseen in the context of an MLA request to execute covert investigations –particularly the agreement of the Ministry of Justice, based on the verification that the concerned officer exercises similar duties in his/her jurisdiction – do not apply in the context of the JIT. The original record of the investigative measure carried out by the seconded member - which should be either drafted or translated into the French language – must be included in the file. Seconded members can only take part in (JIT) operations for the purposes for which they have been appointed. French JIT leader’s own prerogatives cannot be delegated to the seconded members. o PARTICIPATION OF JIT MEMBERS IN INVESTIGATIVE MEASURES CARRIED OUT IN ANOTHER STATE PARTY Explicitly foreseen by law (or reference to the legislation applicable in the State of operation)? Yes (Article 695-3 of Code of Criminal Procedure) Article 695-3 of the Code of Criminal Procedure specifies that French seconded members: - May act within the entire territory of the other State(s) Party(ies). - Carry out the investigative measures required by the JIT leader of this (these) State(s) within the limits of the prerogatives conferred on them by French law. - Can record offences committed and interview people in accordance with procedural rules foreseen by French legislation, with the agreement of the State on the territory of which they operate. Procedure (e.g. consent of JIT leader of the State of operation, etc.) Conditions and limits? See reply above. III- ADMISSIBILITY OF EVIDENCE COLLECTED WITHIN A JIT o ADMISSIBILITY OF EVIDENCE COLLECTED IN THE TERRITORY OF ANOTHER STATE DURING A JIT Unlimited? Possible condition(s)/restriction(s)? Applicable to evidence collected via the use of certain investigative measures only? French legislation does not regulate the issue and no case law specific to JITs is available. However, since JITs do constitute a (specific) form of mutual legal assistance, rules applicable to the admissibility of evidence collected in execution of an MLA request may be applied by analogy: - French courts are not entitled to assess admissibility/legality of evidence collected in another State; if challenged, the request must be brought before the courts of that State; - Admissibility/legality of the evidence cannot be assessed according to French legislation, which is by definition not applicable; - Nevertheless, the Supreme Court applies a ‘minimum control’ to ensure that evidence has not been gathered ‘in violation of defence rights or general principles of law’. These rights and principles are generally considered to correspond to those deriving from Article 6 ECHR. o ADMISSIBILITY OF EVIDENCE COLLECTED DOMESTICALLY BY JIT MEMBERS SECONDED BY ANOTHER STATE Unlimited? Possible condition(s)/restriction(s) (particularly by reference to conditions of participation of seconded members in investigative measures as referred to in section IV)? Applicable to evidence collected via the use of certain investigative measures only? As specified above, involvement of seconded members in investigative measures carried out on French territory is regulated by French legislation. Therefore, one could conclude that the admissibility/legality of evidence collected in violation of these rules could be challenged before the competent court. o ADMISSIBILITY OF EVIDENCE GATHERED IN ANOTHER STATE PARTY PRIOR TO THE SETTING-UP OF THE JIT Unlimited? Possible condition(s)/restriction(s)? Applicable to evidence collected via the use of certain investigative measures only? Evidence gathered prior to the setting-up of the JIT can be exchanged on the basis of Article 7 of the 2000 Convention (spontaneous exchange of information). In practice, the agreement sometimes foresees that such an exchange of evidence will be done ’in the framework of the JIT’. IV- OTHER RELEVANT INFORMATION The French Ministry of Justice has negotiated and concluded ‘model’ bilateral agreements with several Member States (ES, DE, SI, RO, NL, BE, BG, CY). The objective of these agreements, which are based on the EU model agreement, is to address in a standardised manner legal issues with a specific country (participation of seconded members, etc.), to facilitate and accelerate the signing of the JIT agreement. Please note: For measures 901-906 there is one single instrument (of mutual recognition) applicable to each measure. Consequently certain details set out above are not applicable. For other measures, such as 1001 or 903, the alternative of officer-to-officer (law enforcement) cooperation/mutual administrative assistance is not possible.

b. Other useful information

N/A

Last reviewed on 6 July 2016 by EJN Secretariat

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