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: Franta

Audierea martorilor: prin video conferinţă (703)

1. MEASURE IMPLEMENTATION

Franta

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

Yes.

2. LEGAL FRAMEWORK

Franta

International legal framework applicable for this measure in your Member State

• The European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (as well as its First Additional Protocol of 13 March 1978 and its Second Additional Protocol of 8 November 2001) Please see, in particular, article 9 of the Second Protocol • The Convention of 19 June 1990 implementing the Schengen Agreements • The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (and its Protocol of 16 October 2001) Please see, in particular, article 10 of the Convention • Other multilateral conventions, in particular United Nations conventions, or bilateral conventions to which France is a party (not detailed in the information below) • When there is no provision for this measure in the applicable conventions or when there is no applicable convention, a request for this measure can still be made to the French authorities on the basis of article 694-5 of the Code of Criminal Procedure.

3. COMPETENT AUTHORITY TO:

Franta

* receive the request/decision for judicial cooperation

• On the basis of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and its protocols and in accordance with the declaration made by France contained in the instrument of ratification of the Second Protocol deposited on 6 February 2012, requests for mutual legal assistance must be addressed by the requesting State to the Office of International Mutual Legal Assistance in Criminal Matters of the French Ministry of Justice. • On the basis of the Convention of 19 June 1990 implementing the Schengen Agreements (article 53), mutual legal assistance requests must be addressed directly to the judicial authority, i.e. to the competent public prosecutor or investigating judge. • On the basis of the MLA Convention of 29 May 2000 it is the judicial authority that has territorial jurisdiction which receives the request, namely the public prosecutor or investigating judge who has territorial jurisdiction (articles 695-1 et seq. and 694-1 et seq. of the Code of Criminal Procedure). The request can also be addressed to the Prosecutor-General, who will forward it to the competent magistrat (judge or prosecutor). Link to the directory of competent jurisdictions of the Ministry of Justice, listed by municipality.

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

• On the basis of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and its protocols, in particular the Second Protocol, requests for assistance are executed by the judicial authorities which have territorial jurisdiction, namely the public prosecutor or the investigating judge, and they can then instruct police officers or investigation officers of the judicial police to execute the requests (695-1 and 694-2 and -3 of the Code of Criminal Procedure). • On the basis of the Convention of 19 June 1990 implementing the Schengen Agreements (article 53), it is the public prosecutor or the investigating judge with territorial jurisdiction who will execute the request for assistance and they can then instruct police officers or investigation officers of the judicial police to execute the requests (695-1 and 694-2 and -3 of the Code of Criminal Procedure). • On the basis of the MLA Convention of 29 May 2000 it is the judicial authority that has territorial jurisdiction which executes the request, namely the public prosecutor or the investigating judge who has territorial jurisdiction, and they can then instruct police officers or investigation officers of the judicial police to execute the requests (695-1 and 694-2 and -3 of the Code of Criminal Procedure). Whatever the applicable legal basis, if there is any doubt as to whether it is the public prosecutor or the investigating judge who is competent to execute a request, it is preferable to transmit the request to the prosecutor, who will forward it, if necessary, to the investigating judge.

4. ACCEPTED LANGUAGES

Franta

Accepted languages for the request/decision

A translation in French is not required (article 16 of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. The Additional Protocols to this Convention, and the MLA Convention of 29 May 2000, simply complement the original Convention and do not raise any question of translation requirements) but it is nonetheless recommended that a 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)

There is no deadline for the execution of requests for assistance in French criminal law. However, it is possible, in the body of the request, to ask for a deadline to be observed; such a deadline will, however, only be regarded as a general guide.

6. CONCISE LEGAL PRACTICAL INFORMATION

Franta

a. Special requirements

Regardless of which legal instrument the request is based on, 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. If the request is made on the basis of the Second Protocol of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, the request should specify “the reason why it is not desirable or not possible for the witness or expert to be present in person at the hearing, the name of the judicial authority and the names of the persons who will conduct the hearing” (para 3 of article 9 of the Second Protocol). The hearing shall take place in the presence of a judicial authority of the requested Party with the assistance, if required, of an interpreter; this authority is also responsible for the identification of the person being heard and of the respect of the fundamental principles of the law of the requested Party. If the judicial authority of the requested Party considers that the fundamental principles of the law of the requested Party are not being respected during the hearing it shall immediately take the necessary measures to ensure that the hearing continues in accordance with the said principles (para 5a of article 9). The hearing is conducted directly by the judicial authority of the requesting Party, or under its direction, in accordance with its own national law (para 5c of article 9). The person to be heard may invoke his right not to give evidence, a right recognised under the law of either the requested Party or the requesting Party (para 5e of article 9). The judicial authority of the requested Party shall produce, at the end of the hearing, “a statement indicating the date and the place of the hearing, the identity of the person who has given evidence, the identities and the status of all the other persons of the requested Party who participated in the hearing, all of the oaths that have been sworn (in the event that oaths have been sworn) and the technical conditions under which the hearing was conducted. This document shall be transmitted by the competent authority of the requested Party to the competent authority of the requesting Party” (para 6 of article 9). If the request is made on the basis of the MLA Convention of 29 May 2000 the request should specify “the reason why it is not desirable or not possible for the witness or expert to be present in person at the hearing, the name of the judicial authority and the names of the persons who will conduct the hearing” (para 3 of article 10 of the Second Protocol). The hearing shall take place in the presence of a judicial authority of the requested Member State with the assistance, if required, of an interpreter; this authority is also responsible for the identification of the person being heard and of the respect of the fundamental principles of the law of that Member State. If the judicial authority of the requested Member State considers that the fundamental principles of the law of the requested party are not being respected during the hearing it shall immediately take the necessary measures to ensure that the hearing continues in accordance with the said principles (para 5a of article 10). The hearing is conducted directly by the judicial authority of the requesting Member State, or under its direction, in accordance with its own national law (para 5c of article 10). The person to be heard may invoke his right not to give evidence, a right recognised under the law of either the requested Member State or the requesting Member State (para 5e of article 10). The judicial authority of the requested Member State shall produce, at the end of the hearing, “a statement indicating the date and the place of the hearing, the identity of the person who has given evidence, the identities and the status of all the other persons of the requested Member State who participated in the hearing, all of the oaths that have been sworn (in the event that oaths have been sworn) and the technical conditions under which the hearing was conducted. This document shall be transmitted by the competent authority of the requested Member State to the competent authority of the requesting Member State” (para 6 of article 10). NB: the “cost of establishing the video link, the costs associated with making the video link available in the requested Member State, the remuneration of the interpreters that it provides and the expenses paid to the witnesses […] as well as their travel expenses in the requested Member State shall be reimbursed by the requesting Member State to the requested Member State, unless the requested Member State waives its right to reimbursement of all or part of these costs (para 7 of article 10). If the request is made on the basis of the Convention of 19 June 1990 implementing the Schengen Agreements which does not provide for specific arrangements for the hearing of witnesses via video link, please refer to the applicable arrangements contained in the European Convention on Mutual Assistance in Criminal Matters and its Protocols (please see above).

b. Other useful information

Regardless of which legal instrument the request is based on, the person can be informed that if he does not appear in court he may be forced to do so by the law enforcement authorities under the provisions of articles 78 or 109 of the Code of Criminal Procedure. The requesting authority may ask to be present when the hearing of a witness is conducted but they must ask the permission of the requested authority in the body of the letter of request (see, in particular, article 4 of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959). If the request is made under the Second Protocol of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, if a person refuses to give evidence when he is required to do so, or if he makes false statements, the national law of the requested State applies, as it would apply if the hearing were taking place in its own national proceedings. It is the requested judicial authority that issues the summons requiring the person concerned to appear in court in accordance with the rules laid down by its own national legislation (paragraph 4 of article 9 of the Convention). If the request is made under the MLA Convention of 29 May 2000, if a person refuses to give evidence when he is required to do so, or if he makes false statements, the national law of the requested State applies, as it would apply if the hearing were taking place in its own national proceedings. It is the requested judicial authority that issues the summons requiring the person concerned to appear in court in accordance with the rules laid down by its own national legislation (paragraph 4 of article 10 of the Convention). Apart from in the case of the MLA Convention of 29 May 2000 which provides for specific arrangements in this respect (please see para 7 of article 10 of that Convention), the requesting State is not required to reimburse the costs of executing a request.

Last reviewed on 6 iulie 2016 by Secretariatul RJE
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