Act number 2014-372 of 28 March 2014 on the use of global positioning system (GPS) technology provides, from now on, in national law, a legislative framework for this measure.
Concerning [outgoing] letters of request for mutual assistance issued by the French judicial authorities:
The activation or continued use, beyond national borders, of a telecommunications terminal or the remote monitoring, outside the national territory, of a global positioning system (tracker/surveillance device) placed on a vehicle (means of transport) or on any other object requires the issuing of an international request for mutual assistance which will be executed in accordance with the law of the requested State.
In cases where tracking is accompanied by the physical surveillance of a person who is travelling towards the territory of another State, the request for mutual assistance can take the form of a request for the authorisation of cross-border observation under the conditions provided in article 40 of the Convention on the Implementation of the Schengen Agreement (CISA) of 14 June 1985.
At the investigation stage, if this involves a request to activate a tracker device in a foreign country, the request must be addressed to the foreign authority for execution under the relevant conventions and according to the means of transmission provided under these conventions, or, in cases of reciprocity, in accordance with the Code of Criminal Procedure. If the case concerns a request to continue, beyond the border, the monitoring of a tracker that has been put in place on the national territory, the request must, in particular, contain the prosecution documents and, possibly, in cases where it is requested that the measure be extended, the documents of the freedom and custody judge who authorised the measure in France.
At the judicial investigation stage, the international letter of request for mutual legal assistance is issued, in accordance with the same principles, by the investigating judge. If the case concerns a request to continue, beyond the border, the monitoring of a tracker that was put in place on the national territory, the request must contain the special letter of request which authorised the measure in France.
In all cases, the request for mutual assistance must, furthermore, contain material enabling the precise identification of the vehicle or of the object which is the subject of the tracking.
Concerning incoming letters of request for mutual assistance issued by foreign judicial authorities:
The Office of International Mutual Legal Assistance in Criminal Matters of the Ministry of Justice, which is a central authority and not a judicial authority, retains its authority to issue an authorisation for cross-border observation on the basis of article 40 of the Convention on the Implementation of the Schengen Agreement or article 12 of the Paris Agreement.
On the other hand, as soon as a tracking device which has been placed on a vehicle crosses the border it will be necessary for the foreign authorities to send a letter of request. The letter of request must be transmitted to the competent French judicial authority.
If the facts of the case for which the observation (surveillance) is being requested are within the provisions of articles 706-73 and 706-74 of the Code of Criminal Procedure (organised crime), authorisation can be requested from the Specialised Interregional Jurisdictions (JIRS).
In other cases it will be the first prosecution service with territorial jurisdiction in the district in which the tracking device arrives on French soil. So it will be the prosecutor or the investigating judge with territorial jurisdiction at the first point of entry into national territory. Once the authorisation has been given, as set out above, by the Specialised Interregional Jurisdictions (JIRS) or by the territorial jurisdiction, the authorisation is valid for the whole of the French national territory.
If it is not known where the point of entry will be, it will be the border-JIRS (the Specialised Interregional Jurisdiction responsible for the border) if the offence that is the subject of the request for assistance is one of the offences set out in articles 706-73 and 706-74 of the Code of Criminal Procedure.
Failing that, the public prosecutor or the investigating judge of Paris will have competence.
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