Fiches Belges

Videoconference or other audiovisual transmission is a mean of hearing that enables the magistrate to conduct a remote hearing of a witness, an expert, a plaintiff and under conditions a prosecuted or accused person. The videoconference is conducted by the requesting authority in the presence of a French magistrate. The hearing is conducted in accordance with the legislation of the issuing State. Nevertheless, French legislation is applicable at the stage of summoning (Art. 9 paragraph 4 of the Second Protocol, Art. 10 paragraph 4 of the Convention of 29 May 2000 and Art. 24 paragraph 3, of the Directive on EIO). The French magistrate responsible for executing the request must summon the person concerned to appear. The person may be informed, if he or she is a witness, that if he or she does not appear, he or she may be forced to do so by the police pursuant to the provisions of articles 78 or 109 of the Code of criminal procedure. Before the hearing the French magistrate must verify the identity of the person to be heard (Art. 9 paragraph 5 of the Second Protocol, Art. 10 paragraph 5 of the Convention of 29 May 2000 and Art. 24 paragraph 3, c, of the Directive on EIO) and if necessary his consent if that person is suspected or prosecuted. During the hearing the French magistrate is entitled to immediately take the necessary measures to ensure that the hearing continues in accordance with the French fundamental principles (Art. 9 paragraph 5 of the Second Protocol, Art. 10 paragraph 5 of the Convention of 29 May 2000 and Art. 24 paragraph 5, a, of the Directive on EIO). At the end of the hearing, the competent French authority draws minutes and transmits it to the competent authorities of the requesting State indicating the date and place of the hearing, the identity of the person heard, the identities and capacities of all the other person who participated in the hearing, any oath taken, and the technical conditions under which the hearing was conducted (Art. 9 paragraph 6 of the Second Protocol, Art. 10 paragraph 6 of the Convention of 29 May 2000 and Art. 24 paragraph 6 of the Directive on EIO). NB: Under paragraph 7 of article 10 of the Convention of 29 May 2000, 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". • Witnesses and experts: Article 9§1 of the Second Protocol to the European Convention on Mutual Assistance in Criminal Matters provides that the videoconference may be used where it is impossible or inopportune for the person to appear personally (same provision at article 10§1 of the Convention of 29 May 2000). Regarding the EIO, the requesting authority must specify in section H2 of Annex A the grounds on which the hearing by videoconference is requested. • Prosecuted and suspected persons: 1/ During the investigation : The hearing by videoconference is possible subject to the consent of the person concerned. The consent is mandatory when the request is based on the Second Protocol of the European Convention of 1959 while it is an optional ground for refusal to execute when the request is based on the Directive on EIO or the Convention of 29 May 2000. 2/ Appearances before the trial court: in accordance with the declaration of France to Second additional protocol of the Convention of 1959, France do not apply the provisions of Article 9 to hearings of prosecuted persons during the trial. The hearing by videoconference of a prosecuted person during his or her trial is possible when the request is based on the Directive on EIO. Under article 706-71 of the Code of criminal procedure, French authorities may execute the hearing by videoconference if the offence is not a "crime" (most serious offence), the prosecuted person is incarcerated and if all the parties consent to the hearing (public prosecutor included). • The rights of the person to be heard: The executing State must verify that an interpreter assists the person if she or the issuing authority request it (Art. 9, paragraph 5, d, of the Second Protocol and Art. 24, paragraph 5, d, of the Directive on EIO). The person to be heard must also be able to invoke his or her right not to testify under the law of the requested/executing State or of the requesting/issuing State (Art. 9, paragraph 5, e, of the Second Protocol and Art. 24, paragraph 5, e, of the Directive on EIO). The suspected or the prosecuted person must be informed of his procedural rights, including the right to not testify (Art. 24, paragraph 5, e, of the Directive on EIO).The person heard must be able to benefit from protective measures if necessary, which must be decided by mutual agreement between the competent authorities of the two States concerned (Art. 9, paragraph 5, b, of the Second Protocol and Art. 24, paragraph 5, b, of the Directive on EIO). The same provisions are provided by the Convention of 29 May 2000.

• 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 24) • Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 may 2000 (Article 10) • Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (Article 9)

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 who has territorial jurisdiction will recognise 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 : The public prosecutor or the investigating judge that has territorial jursidiction.

• 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.

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. The "témoin assisté (assisted witness), which has a special status under French law, should be considered as a person subject to criminal prosecution and his/her hearing by videoconference is thus suject to his/her consent.