Fiches Belges

As provided for by the Code of criminal procedure, an EIO may be issued in order to determine whether a physical or moral person holds or controls one or more accounts in a banking or financial establishment or to obtain information about a specified bank account or a banking transaction during a specific period of time (art. 694-27). The issuing magistrate shall provide the reasons for which he considers that the information requested helps to establish the truth and the reasons for which he or she assumes that the banks located in the executing State hold an account and, where necessary, the banks that might be concerned. At section H4 of Annex A, the issuing authority may request the following information: the bank accounts held by a person, the account number, the name of the banking or financial establishment, the body address, a copy of the bank holder signature, the identity of the persons having the power of attorney and the copy of their signature, the copies of bank statements for a specified period, the copies of cheques with numbers, etc. The Code of criminal procedure allows the magistrate to ask any person, private or public institution, or public administration likely to have information relevant to the investigation to hand over this information, without being subject to the obligation of professional secrecy except with legitimate reasons. Furthermore, Article 694-49 of the Code of criminal procedure specifies that when the issuing State requests, under an EIO, the execution of an investigative measure that requires evidence to be obtained in real time, on a continuous basis and over a specific period of time, the practical details of the measure shall be determined by mutual agreement between the magistrate to whom the request is addressed and the competent authority of the issuing State. These provisions shall apply in particular to the monitoring of banking or other financial transactions carried out on one or more specific accounts.

Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters as transposed in the French Criminal Code of Procedure at articles 694-15 to 694-50. Protocole to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 may 2000 (16 october 2001)

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 protocole to the MLA Convention of 29 May 2000, 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 base, 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 the EIO 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.

The practicalities of the measure of monitoring of banking or other financial operations that is to be carried out through one or more specified accounts are determined by mutual agreement between the magistrates when the measure implies the gathering of evidence in real time, continuously and over a certain period.