Fiches Belges

Under French law the following measures fall into the scope of interceptions of telecommunications and other forms of electronic communications : - interception of correspondence emitted by electronic communications : tapping of telephone conversations, SMS, messages left on an answering machine, real-time monitoring of an e-mail, instant messages exchanged between several people by means of a link secured by an encryption device, recording and transcription by the judicial police officer of telephone conversations by affixing a device connected to the handset of the device lived the agreement of one of the correspondents ; -"IMSI catcher": it is a proximity device that makes it possible to obtain data that is difficult to access through the traditional use of simple telephone requisitions ; - remote data capture. The interception may be authorised by the liberty and custody judge upon request of the public prosecutor during the enquiry and by the investigating judge during the judicial information. This measure can only be ordered if the needs of the enquiry require so. 1° Interception of correspondence : • During the enquiry (under the responsibility of the public prosecutor) : the interception of telecommunication is restricted to offences of a peculiar gravity and complexity. Under art. 706-95 of the Criminal code of procedure the use of this measure is limited to enquiries relating to infractions mentioned at articles 706-73 and 706-73-1. • During the judicial information (under the responsibility of the investigating judge) : this measure can only be ordered for crimes or offences punishable by 3 years imprisonment (art. 100). 2° "IMSI catcher" : The use of IMSI catcher is limited to offences listed at articles 706-73, 706-73-1, 706-72, 706-1-1, 706-1-2 and 706-2-2 of the French code of criminal procedure.

• 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. - Chapter V "Interception of telecommunications. • Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 : Title III "Interception of telecommunications".

• 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 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 (articles 695-1 et seq. and 694-1 et seq. of the Code of Criminal Procedure).

• Directive 2014/41/EU of 3 April 2014 on the European Investigation Order : French. • The Convention of 29 May 2000 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. • MLA Convention of 29 May 2000 : The requested State executes the request for mutual legal assistance as soon as possible (art. 4 paragraph 2 Convention of 29 may 2000). 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 measure is executed in accordance with the French Code of Criminal Procedure. It is ordered for a period of one month in an investigation under the responsibility of the public prosecutor in an organised crime case, and a period of 4 months in a judicial investigation (under the responsibility of the investigating judge). This decision is renewable once under the same conditions of form and duration. On completion, the recordings are placed under seal. Under French law, there are restrictions when the interceptions concern a lawyer in the exercise of defence rights, a journalist, a parliamentarian or a magistrate (judge or public prosecutor). IMSI catcher : It is ordered for a period of 48 hours. 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.