Fiches Belges

The rules applicable to the search of domiciles, offices, residence, vehicle used as habitation, are not the same as the rules applicable to the search of vehicles. 1/ The search of vehicles: The search of vehicles is possible in case of flagrante delicto or suspicion of crime committed by the occupant of the vehicle, upon request of the public prosecutor in cases of searches or judicial prosecution for particular infractions (terrorism, drug trafficking etc.), or to prevent a serious damage to the safety of the person or assets. In the latter case, the driver’s prior agreement is required. The search is carried out by a judicial police officer or under his responsibility by an agent of judicial police. The owner of the vehicle must be present during the search. In cases of custom fraud, customs officers are entitled to carry out the search of the vehicle. 2/ The search of premises: The search of premises is the search of a private place by a person authorised by the law in order to find evidence of an offence or to determine the perpetrator and concerns the following places: - Domestic premises – including vehicles used as habitation – (of a suspect, presumed accomplice or witness); - Domestic premises’ annexes ; - Premises of a company or public service ; - Lawyer’s, bailiff’s, notary’s and doctors professional premises. The procedure to follow depends on the nature of premises that are to be visited and on the judge directing the main enquiry. Occupant’s consent is mandatory for searches executed during preliminary enquiry while it is not mandatory during the judicial information or in case of flagrante delicto.

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.

The public prosecutor is competent to execute and recognize the EIO in respect of the search of vehicles. Regarding the search of premises: 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.

French.

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.

Searches of premises are only authorised to be carried out during the day, more specifically between 6.00hrs and 21.00hrs, although operations commenced during the day may be continued into the night. There are a number of exceptions to this principle: searches by night are possible: in the event of complaints lodged by persons inside the house; upon the express and written permission of the occupant of the premises (regarded in the same way as preliminary investigations: Decision of the Supreme Court of Appeal, Criminal Division, 19 June 1957); when investigating and detecting the offences concerning drug trafficking set out in article 706-26 of the Code of Criminal Procedure; under the conditions set out in article 706-28 and 706-29 of the Code of Criminal Procedure; the offences relating to procurement referred to in article 706-34 of the Code of Criminal Procedure; under the conditions laid down in article 706-35 of the Code of Criminal Procedure; and the acts of terrorism referred to in article 706-16 of the Code of Criminal Procedure under the conditions laid down in articles 706-24-1 of the Code of Criminal Procedure. To be present at the execution of this measure it is necessary to obtain the authorisation of the magistrate in charge of the execution of the request. For some premises, the police officer cannot execute the search. Indeed, a judge must do the search of: - the office or domicile of a lawyer; - the office or domicile of the president of the Bar; - the press office, the domicile or professional vehicle of the journalist; - the professional premises of the bailiff, notary and doctor; - the premises housing elements of national defence secrecy; - the tribunal or judge’s domicile in the presence of the first president of the Court of Appeal or of the Court of Cassation or his representative.