Fiches Belges

Hearing witnesses/victims/plaintiffs: This measure involves the hearing of witnesses during the criminal procedure. Hearing children: The hearing of victims or witnesses under the age of 18 of certain offences, namely hostage taking, indecent assault, rape, prostitution, incitement to debauchery, affront to public decency, child pornography, grooming, voluntary manslaughter not qualifying as murder and voluntary bodily injury, mutilation, failure to render assistance, child neglect or abandonment, deprivation of food or care, the abduction and concealment of minors are in principle audio recorded. During the hearing, the minor is in principle permitted to be accompanied by a person of his or her choice. Article 92 of the Code of Criminal Procedure provides for the possibility of ordering the hearing to be recorded in order to spare the minor from having to make potentially traumatising appearances before the examining and the ruling courts. This measure is subject to the prior consent of minors over the age of 12. Hearing persons collaborating with the inquiry: The hearing of magistrates, police officers and experts (as witness) is possible, with the possibility of partially (Article 75ter of the Code of Criminal Procedure) or fully (Articles 86bis-86quinquies of the CIC) preserving their anonymity.

Hearing witnesses: Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (Article 3); European Convention on mutual assistance in criminal matters of 20 April 1959 and its additional Protocol of 17 March 1978. + Hearing suspects/persons accused: Benelux Treaty on Extradition and Mutual Legal Assistance in Criminal Matters of 27 June 1962, and its Protocol of 11 May 1974.

* receive the request/decision for judicial cooperation The request must be sent to the local public prosecutor’s office of the geographical area where the investigating measure must be executed. If this area is not known, the request must be sent to the federal prosecutor’s office - section of international cooperation. * execute/recognise the measure (if other than the receiving authority) The public prosecutor. The investigating judge if the witness has to be heard under oath. The hearing of persons who are the subject of an anonymity measure is always carried out by the investigating judge.

Dutch, French, German and English. Important remarks: Before the execution, the request will be translated by the Belgian prosecutor if the language is not the language of the judicial area where the request must be executed. It is recommended, when possible, to obtain, prior to sending the request, information about the use of the correct language.

The deadlines as foreseen in the EIO Directive are applicable. There is no specific deadline foreseen by Belgian law for the execution of letters of request. If the requested deadline cannot be respected, the requesting state will be informed accordingly.

a. Special requirements Content of the international letters rogatory: It is important to indicate in the letter of request whether: - the oath is needed for the hearing of the witness; - a defence lawyer has to be present. At the information and examination stage, the person heard in whatever capacity enjoys certain rights (Articles 47bis §1 and 70bis of the Code of Criminal Procedure): 1. At the start of any hearing, a brief statement of the facts subject to the hearing is given and the person being questioned is told that: - he may request that all questions put to him and all his replies be placed on record in the terms employed; - he may request an examination measure or certain hearing to be effected; - his statements may be used in evidence; - he is not obliged to accuse himself; - All these elements are mentioned in an official record. 2. Any person questioned may use the documents in his possession, but this may not cause the interrogation to be adjourned. He may, at the time of the interrogation or subsequently, demand that these documents be attached to the official record of the hearing or filed at the registry. 3. The record mentions the precise time at which the examination begins, any interruption and resumption, and the time at which it ends. It mentions the precise identity of the persons participating in the hearing or part of it and the time of their arrival and departure. It also mentions the special circumstances and anything from a particular day which may clarify the statement or the circumstances in which it was made. 4. At the end of the hearing, the record is given to the person questioned to read, unless he asks for it to be read out to him. He is asked whether any corrections or additions need to be made to his statements. 5. If the person questioned wishes to express himself in a language differing from that of the proceedings, either a sworn interpreter is called upon, the person's statements are recorded in his language, or he is requested to record his statement himself. If the interrogation takes place with the assistance of an interpreter, the latter's identity and status are mentioned. Hearing by the investigating judge: The investigating judge may choose whether to hear a witness under oath or not (but see below). If this is not the case, he will hear the witness in his capacity as criminal investigation officer to obtain a statement for information. Refusal to take an oath is treated as a refusal to appear and may incur the penalty provided for in Article 80 CIC (Any person summoned to give evidence will be required to appear before the court and to comply with the summons: otherwise he may be compelled to do so by the investigating judge, who will duly - on the public prosecutor's submissions, without any other formality or time limit, and without appeal - impose a fine not exceeding thousand euro, and may order the person summoned to be forcibly detained in order to give evidence). A witness wishing to remain anonymous may not be heard under oath. His statements will therefore be valid only for information purposes. The witness's statements and documents are reproduced in the form of an official record signed by the investigating judge and registrar. If he wishes to do so, the witness signs the record after he has read it through and declared that he adheres to his statement. He may still add any clarifications or corrections he wishes. These are mentioned at the end of the document. b. Other useful information The presence of the requesting judicial authority and/or investigators can be allowed. This has to be requested explicitly in the request. Hearing children: The recorded hearing is located in specially adapted premises and the examiner explains to the minor the reasons why he or she wishes to proceed with the audio-visual recording of the hearing. He or she informs the minor that he or she can ask him or her to stop the hearing at any time. In principle, the minor has the right to receive a copy of the transcript of his or her hearing. If, however, there is a risk that he or she could be dispossessed of it or would not be able to protect its personal nature, the prosecutor or the investigating judge can refuse to issue it to the minor. Hearing persons collaborating with the inquiry: Magistrates, law enforcement agents or experts can always apply their professional secrecy.