Fiches Belges
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Fiches Belges: Franta

Interception of telecommunication without the technical assistance of another Member State (107)

1. MEASURE IMPLEMENTATION

Franta

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

Articles 19-22 of the Convention on Mutual Legal Assistance between the Member States of the European Union of 29 May 2000 provide for the possibility of the interception of telecommunications on the national territory of a Member State, through the intermediary of service providers, without the technical assistance of another Member State. France has, by means of two Acts: Number 2005-287 and Number 2005-288 of 30 March 2005, authorised the approval, respectively, of the Convention, established by the Council, on Mutual Legal Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 and of its Protocol of 16 October 2001. Act Number 2004-204 of 9 March 2004 adapting legislation to address evolving forms of criminality inserted into the Code of Criminal Procedure provisions enabling the application of these international instruments in our law. The execution of this measure is only possible if an interception would also be possible in a similar domestic case.

2. LEGAL FRAMEWORK

Franta

International legal framework applicable for this measure in your Member State

The Convention on Mutual Legal Assistance in Criminal Matters of 29 May 2000 (articles 19 to 22). The Convention provides for the interception of telecommunications without the technical assistance of another Member State only as part of a criminal investigation, i.e. one presenting the characteristics of an investigation which is being conducted when a specific criminal offence has been committed, including attempts (in so far as they are criminal offences under national law), for the purposes of the identification, arrest, charging, prosecution or judgment/conviction of those responsible. The intercepting Member State is obliged to inform and notify the Member State on whose territory the interception is taking place of the interception, either before the commencement of the interception or as soon as the foreign authority has knowledge of the geographical location of the target. The notified Member State can ask for supplementary information in order to check whether an interception would also be possible in a similar domestic case. The notified Member State shall reply without delay, and, in any event, within 96 hours of the notification: either to allow the interception to be carried out or to be continued; or to require that the interception should not be carried out or that the interception be stopped (when such an interception would not be authorised under its national law); or to require that the intercepted data is not to be used, or is only to be used under certain conditions, which it specifies; or to request the extension of the time limit from 96 hours to a maximum of 8 days to enable it to carry out internal procedures required by its criminal legislation. For as long as the notified State has not taken a decision, the intercepting Member State can continue the interception and is not permitted to use the data that has already been intercepted unless it has already been agreed otherwise between the Member States concerned or in order to take urgent measures to prevent an immediate and serious danger to public safety. The notified Member State is then to be informed of the use of that data and of the grounds justifying that use. Under French criminal law this measure is only possible as part of a judicial investigation (when it is necessary for the judicial investigation and when the offence is punishable by a prison sentence of two years or more) or in a preliminary investigation in an organised crime case (offences under article 706-73 of the Code of Criminal Procedure). In both cases the interception is ordered by a judge (an investigating judge or a liberty and custody judge).

3. COMPETENT AUTHORITY TO:

Franta

* receive the request/decision for judicial cooperation

The authority competent to receive the notification of interception and to respond to it is the investigating judge.

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

The authority competent to receive the notification of interception and to respond to it is the investigating judge.

4. ACCEPTED LANGUAGES

Franta

Accepted languages for the request/decision

A translation in French is not a requirement, but it is recommended that a French translation be provided in order to facilitate and expedite the execution of the request for assistance.

5. EXECUTION DEADLINE

Franta

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

The Convention of 29 May 2000 (article 20 4.) provides that the notified State shall respond within a maximum period of 96 hours, a period which can be extended to a maximum of 8 days to enable the notified Member State to carry out internal procedures required by its criminal legislation.

6. CONCISE LEGAL PRACTICAL INFORMATION

Franta

a. Special requirements

The measure is executed in accordance with French criminal law. The interception decision is ordered for a period of one month as part of an investigation in an organised crime case and for a period of 4 months as part of a judicial investigation. This decision is renewable once under the same conditions of form and duration. On completion the recordings shall be placed under seal. Under French law there are restrictions when the interceptions concern a lawyer in the exercise of defence rights, a journalist, a parliamentarian or a magistrat (judge or public prosecutor). In the absence of a bilateral or multilateral convention which provides to the contrary, the requesting authority can ask for certain particular procedural rules to be followed, in accordance with article 694-3 of the Code of Criminal Procedure, which provides that such rules must not reduce or impair “the rights of the parties or the procedural guarantees provided by the present Code”. The request can be refused if it is likely to harm public order or the essential interests of the Nation, as provided by article 694-4 of the Code of Criminal Procedure.

b. Other useful information

N/A

Last reviewed on 6 iulie 2016 by Secretariatul RJE

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