Fiches Belges

The hearing by teleconference is limited to the hearing of witnesses and experts (Art. 25 of the Directive on EIO, Art. 10 of the Second Protocol to the European Convention on Mutual Assistance in Criminal Matters and Art. 11 of the Convention of 29 May 2000) and can only take place during the investigation or the judicial information (Art. 706-71 of the French Criminal code of Procedure). Its use is not possible at the trial stage. In accordance with the Directive on EIO, the use of teleconferencing is limited to cases where it is impossible or inappropriate for the person to appear personally (Art. 25 paragraph 1). Under Article 10 of the Second Protocol to the European Convention on Mutual Assistance in Criminal Matters and Article 11 of the Convention of 29 May 2000, the consent of the person concerned to this form au audition is required, while it is not provided for in the Directive on EIO. Conditions for the use of teleconferencing: • Directive 2014/41 on EIO: Article 25 on hearing by teleconference refers to paragraph 3, 5, 6 et 7 of article 24 on hearing by videoconference which are applicable unless otherwise agreed. In accordance with article 24, paragraph 3 of the Directive, French legislation is applicable at the stage of summoning. The French magistrate responsible for executing the request must summon the person concerned to appear. The person may be informed, 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. 24, paragraph 3, c, of the Directive). The hearing is conducted by the issuing authorities in the presence of the French magistrate who is entitled to immediately take the necessary measures to ensure that the hearing continues in accordance with the French fundamental principles (Art. 24 paragraph 5, of the Directive on EIO). At the end of the hearing, the competent French authority draws minutes and transmit 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. 24 paragraph 6 of the Directive on EIO). The rights of the person to be heard: The executing State must verify that an interpreter assists the person if she, he or the issuing authority request it (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 executing State or of the issuing State (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. 24, paragraph 5, b, of the Directive on EIO). • Second Protocol to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and MLA Convention of 29 May 2000: the possibility of a hearing by telephone must be provided for under the national law of the requesting State (Art. 10, paragraph 1 of the Second Protocol and Art. 11, paragraph 1 of the Convention). The request for assistance must contain “the name of the judicial authority and the names of the persons who will conduct the hearing as well as an indication that the witness or the expert is willing to participate in a hearing by telephone conference” (Art. 10, paragraph 4 of the Second Protocol and Art. 11, paragraph 4 of the Convention). “The practical arrangements of the hearing are decided by common agreement between the Member States/Parties concerned and when it accepts these arrangements, the requested Member State/Party shall: "a) notify the witness or expert concerned of the time and place of the hearing; b) ensure the identification of the witness or expert; and c) verify that the witness or expert accepts the hearing by telephone conference” (Art. 10, paragraph 5 of the Second Protocol and Art. 11, paragraph 5 of the Convention). However, the requested Party may make its agreement subject, fully or in part, to the relevant provisions of Article 9/10, paragraphs 5 and 7/8 of the Protocol/Convention which provisions set out the modalities for a hearing by videoconference (Art. 10/11,paragraph 6/5 of the Protocol/Convention).

• 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 25) • Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 may 2000 (Article 11) • Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (Article 10)

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 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). 2/To execute the measure : The public prosecutor or the investigating judge that has territorial jursidiction.

• Directive on EIO of 3 April 2014: 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 on EIO of 3 April 2014: 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. Furthermore, such a hearing by telephone is only possible with the consent of the concerned person.