Fiches Belges

Under French law, in the context of the investigation, the judicial information or the trial, hearing is one of the means used by the competent authority in order to determine the truth. • For all hearings : Regardless of the legal instrument on which the request is based, the requesting authority can ask 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. • Suspects/accused persons; experts; victims/plaintiffs; witnesses: The inclusion of a list of questions to put to a suspect, expert or witness will facilitate the execution of a request for evidence and will enable more relevant information to be gathered for the requesting authority. The requesting authority may ask to be present when the hearing is conducted but they must request the permission of the requested authority in the body of the letter of request or the EIO. (see, in particular, article 4 of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959). The foreign authority may not ask that the requesting investigators, judge or prosecutor conduct the hearing themselves. • Victims/plaintiffs: Regardless of the legal instrument on which the request is based: This relates specifically to a victim who has become a "partie civile" [*Translator's note: a "partie civile" is a victim who has joined the criminal proceedings in order to claim compensation]. A victim who has become a ""partie civile"" must declare an address to the investigating judge (article 89 of the Code of Criminal Procedure). At his first hearing he is advised of his right to make a request (an application) for an act or to make an annulment request during the course of the judicial investigation and if he or she has made such request, within 1 or 3 months following the notification of the end of the preliminary investigation (article 89-1 of the Code of Criminal Procedure). Finally, a person who has established himself as a ""partie civile"" may no longer be heard as a witness. . The inclusion of a list of questions to put to the victim will facilitate the execution of the request and will enable more relevant information to be gathered for the requesting authority. The requesting authority may ask to be present when the hearing is conducted but they must request 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). The requesting authority may not ask that the requesting investigators, judge or prosecutor conduct the hearing themselves. • Minors: - The hearing of juvenile victims (under French law all persons aged under 18 years are minors): During the investigation or the preliminary judicial investigation, hearings of juvenile victims or confrontations with juvenile victims are carried out on the decision of the public prosecutor or the investigating judge, as the case may be, upon the request of the minor or of his legal representative, in the presence of a child psychologist or doctor specialising in the care of children, of a member of the minor’s family, of the ad hoc guardian responsible for representing the minor’s interests, or of another person appointed by order of the children’s judge. Every juvenile victim of one of the offences set out in article 706-47 of the Code of Criminal Procedure (sexual offenses) shall be assisted by a lawyer when he is being heard by an investigating judge. The offences in article 706-47 include: murder or assassination of a minor preceded or accompanied by rape, by torture or by acts of barbarism; torture or acts of barbarism; recidivist offences of murder or manslaughter; assaults or sexual assaults against a minor; the human trafficking of minors; procurement in relation to a minor; and having recourse to the prostitution of a minor. During the investigation or the judicial investigation, the hearing of a juvenile victim of one of the offences in article 706-47 shall be recorded by means of a videorecorder (mandatory). - The hearing of juvenile offenders (youth offenders): In French criminal law, a special Code provides rules which are enforceable in relation to the hearing and the placing in custody of minors in accordance with their age and with the applicable sentence. • Persons collaborating with the inquiry : There is no text in French criminal law which specifically regulates the hearing of persons collaborating with the inquiry. Certain provisions of the Code of Criminal Procedure provide as follows: Provision for the person to declare his address as being the address of the police station where the hearing has taken place or at the place where he carries out his profession (art. 706-57). Anonymous witness testimony, in the event that a witness wishes to report the facts of a matter without revealing his identity (art. 706-58). This procedure is only possible in proceedings relating to a crime or offence punishable by at least 3 years imprisonment and if the hearing of the person (in relation to whom there is no plausible reason to suspect that he has participated in the commission of the offence) is likely to put in serious danger his life or his physical safety or the lives or physical safety of his family or those close to him. The anonymous witness testimony shall be authorised by a decision of the liberty and custody judge. The person who has been indicted can challenge the recourse to this hearing if the knowledge of the identity of the witness is indispensable to the exercise of his defence rights.

• EU member states: Directive 2014/41/EU of 3 April 2014 on the European Investigation Order in criminal matters as transposed into the French Code of Criminal Procedure in Articles 694-15 to 694-50 replaces particularly the provisions of The European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (and its two additional protocols) and 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) except for Ireland and Denmark. • non-EU countries: The European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, or any other relevant convention.

1/ To receive the request: • On the basis of the Directive on EIO of 3 April 2014 : The investigating judge is competent to recognize and execute the EIO in respect of acts which can only be ordered or executed during the judicial investigation or which can only be executed with the authorization of the liberty and custody judge. In other cases, the public prosecutor territorially competent will recognize and execute the EIO. • On the basis of the MLA Convention of 29 May 2000, or of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and its additional Protocols, it is the judicial authority that has territorial jurisdiction which receives the request, namely the public prosecutor or investigating judge who has territorial jurisdiction (article 694-1 of the Code of Criminal Procedure). The request can also be addressed to the General Prosecutor, who will forward it to the competent magistrate (judge or prosecutor). 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. 2/ To execute the measure : • For victims/plaintiff; experts; witnesses; supects/persons accused: The judicial authority that has territorial jurisdiction executes the request, namely the public prosecutor or the investigating judge who has territorial jurisdiction. They can then instruct police officers or investigation officers of the judicial police to execute the requests. • For minors: Depending on the case and the stage of the proceedings, the specialised police service or gendarmerie designated by the public prosecutor, by the children’s judge or by the investigating judge shall conduct the hearing of the juvenile offender or victim. The children’s judge or the investigating judge can also conduct the hearing of the minor themselves (in particular if the request asks for the indictment of the minor).

• Directive 2014/41/EU of 3 April 2014 on the European Investigation Order: French. • European Convention of 20 April 1959 : A translation in French is not required (article 16) but it is nonetheless recommended that a translation be provided, in order to facilitate and expedite the execution of the request for assistance. Convention of 29 May 2000 complementing this Convention do not raise any question of translation requirements.

• Directive 2014/41/EU of 3 April 2014 on the European Investigation Order: The competent authority must execute it as soon as possible and at the latest within 90 days after the decision of recognition of the EIO. • European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and MLA Convention of 29 May 2000: The requested State executes the request for mutual legal assistance as soon as possible (Art. 1 Second additional Protocol to the Convention of 20 April 1959, art. 4 paragraph 2 Convention of 29 may 2000). 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.

1/Procedure: • Witness: The presence of a lawyer is not compulsory either at the investigation stage or at the judicial information stage. Nota bene : under article 109 of the French code of criminal procedure, any journalist, heard as a witness on information gathered in the exercise of his activity, is free not to reveal its origin. • Indicted person or "témoin assisté": The hearing must be conducted by the investigating judge. 2/ Requirements for minutes: • Hearing by the police officer: he writes the minutes of the statements. The person reads it over himself, can have his observations recorded and signs it. If the person refuses to sign the report, the report states this. If the witness states that he or she cannot read, the police officer or gendarme reads the statement to the him/her. • Hearing by the investigating judge : the minutes of the statements are drown up by the clerk. The person is asked to read his or her statement again, before signing it. If the person is unwilling or unable to sign, the minutes will state this.