Fiches Belges

This measure involves technical or scientific investigations in the field of medecine or criminology carried out with the aim of searching for clues or information that may be useful in revealing the truth. In the context of an investigation, the Code of Criminal Procedure provides for the possibility of having recourse to experts' conclusions/findings or technical or scientific examinations as well as to all persons who, it is considered, may be in possession of items relevant to the investigation. The authority competent to undertake this measure is the officer of the judicial police, or under it's supervision, the agent of the judicial police, in cases of offences or serious crimes in flagrante delicto (articles 60, 60-1 and 60-2 of the Code of Criminal Procedure), or the officer of the judicial police acting on the authorisation of the public prosecutor, or the public prosecutor himself/herself in the context of a preliminary investigation (articles 77-1, 77-1-1 and 77-1-2 of the Code of Criminal Procedure). In the context of a judicial investigation the investigating judge can, if there is a technical question, order an expert evaluation, either on his own motion, at the request of the parties or at the request of the public prosecutor (article 156 of the Code of Criminal Procedure). He makes an order appointing an expert, determining the task required of the expert and the deadline by which the expert must submit his/her expert's report. The trial court can also order the provision of additional information and can appoint an expert under the same conditions (articles 434 and 463 of the Code of Criminal Procedure). Criminal liability of an expert : The expert may incur criminal liability. For instance he will be criminally liable for the following offenses : violation of professional confidentiality (art. 226-13 of the criminal code), corruption (art. 434-9 of the criminal code) or falsification of the results of the expertise (art. 434-20 of the criminal code).

• 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 : 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). 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.

Every decision issued by the trial court appointing one or more experts must include a deadline by which they must complete their task. The judge can confer the task of providing an expert evaluation upon several experts. When they have completed the task the expert or experts submit their report to the investigating judge. After having informed the parties and their counsels of the experts' conclusions, the investigating judge must set a deadline within which the parties can submit their observations or draft a request for additional expert evaluation or for a second opinion. The measure is executed in accordance with French criminal law. In the absence of a bilateral or multilateral convention which provides to the contrary, 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.