Fiches Belges

The purpose of a superficial body search is to look for signs/clues, objects or documents to make it possible to establish that an offence has been committed. To this end the procedure involves an examination of the clothes and body of a person (for which the person may have to be undressed) in order to find various traces of a fight/struggle or of injections/punctures to the skin. Intimate searches, which can pose a problem in terms of respect for the physical integrity of the person, are carried out by a doctor. A distinction is made between a body search and a security search (the latter being limited to the patting down or rubbing down of clothing). In contrast, the body search is an actual investigation which may involve the person undressing completely and opening the linings of his or her clothing. The latter is now regarded as a search in case law. • Superficial search: Searches can be carried out on all persons who appear to have been involved in the offence or who may be in possession of documents or objects relating to the facts which constitute the criminal offence, as well as all persons who are the subject of custody measures. The searches are carried out in police stations or stations of the gendarmerie (police), or, when they are conducted by a doctor, in doctors' surgeries or hospitals. The searches, apart from those carried out by a doctor, are conducted by a person of the same sex as the person who is being searched. They are carried out in an enclosed area in order to maintain the privacy of the person and the secrecy of the investigation. This request is most likely to be made in conjunction with a request for the hearing of a person. Searches are possible in the following cases: - Flagrante delicto - Preliminary investigation with the express consent of the person (if the person refuses the police officer has to inform the public prosecutor or the investigating judge) - Rogatory commission - Research of customs fraud A full search is only possible if a pat-down search or the use of electronic detection means cannot be performed. • Invasive search: The search must be indispensable for the enquiry. A medical expert is requested or designated by the magistrate. The examination takes place in a doctor's surgery or in a hospital. This measure can only be used after a crime or flagrante delicto and be can used on perpetrators or victims of a serious crime or other offence.

• 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.

• 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 European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and its additional Protocols, requests for mutual legal assistance are addressed by the requesting State to the Office of International Mutual Legal Assistance in Criminal Matters of the French Ministry of Justice. Nevertheless, the competent judicial authority of the requesting State can address the request for mutual legal assistance directly to the competent judicial authority of the requested State (see above for the competent authority in France: public prosecutor or investigating judge that has territorial jurisdiction). NB: In accordance with the declaration made by France to the Second additional Protocol (2001) requests for legal mutual assistance related article 1 paragraph 3 of the Convention and requests for legal mutual assistance made by the competent authority of the requiting State that is not a judicial authority must be sent to the Ministry of Justice, Directorate of Criminal Affairs and Pardons.

• Directive 2014/41/EU of 3 April 2014 on the European Investigation Order: French. • European Convention on Mutual Assistance in Criminal Matters 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.

• 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.

Invasive search in case of custom controls: Invasive search on the body of a person suspected of carrying drugs can be decided. The search is performed by a doctor. The person's consent is required. If the person refuses, the officer must ask the judge for authorization to proceed with the examination. The judge will have to designate a doctor.