- When using an EIO: no special requirements are needed.
Otherwise:
- There are two options: either the requesting authority states in the request the details of the order to wiretap and that it has been issued OR the wiretap order is enclosed with the request.
- It must be a written request, stating reasons; in case of urgency this can be done verbally, and then to be confirmed in writing within 3 days.
- In Nl an authorization by an examining judge is required, also in the case of amending/adding/extending.
According to the Dutch implementation law, implementing Article 28 and 29 of the Directive EIO, an additional ground for non-execution applies; if in a similar Dutch criminal case the application of the measure is not possible, this is a reason to refuse the EIO. Furthermore the public prosecutor can choose another measure then asked for in the EIO, if the requested measure does not exist in Dutch law or would not be applicable. It is important to thoroughly explain the necessity for the wiretap
The wiretap order can only be issued for a maximum of four weeks. This period can be prolonged with four weeks (unlimited with view to the investigating needs).For a prolongation an additional request is needed, in which the necessity for the prolongation is explained.
e.g. limitations of the scope of the measure, confidentiality of the request, proportionality check, assistance or participation of agents of the requesting/issuing state in the execution of the measure, possibility to execute the measure in conformity with the procedure applicable in the requesting/issuing state, links to national web pages etc.
a) Conditions under which it is possible to order the measure based on a request of foreign authority:
This measure is strictly regulated and can be used in any part of the telecommunication system, including facsimile machines and internet. There are specific articles regarding tapping in terrorism cases.
The following conditions must be met:
- The measure can only be applied to the suspicion of serious offences in which the suspect can undergo pretrial detention. Generally speaking this means all serious offences with a four year or more prison sentence.
- The measure must be urgently required for the investigation (the necessity for the wiretap needs to be explained).
- Applicable to (tele) communications not intended to the public in which a user (not necessarily a suspect) participates by using the services or a provider of telecommunications.
- When using an EIO: no special requirements are needed. Otherwise: - There are two options: either the requesting authority states in the request the details of the order to wiretap and that it has been issued OR the wiretap order is enclosed with the request.
- It must be a written request, stating reasons; in case of urgency this can be done verbally, and then to be confirmed as soon as possible (maximum of two days).
- In the NL, an authorization by an investigating judge is required, also in the case of amending/adding/extending; According to the Dutch implementation law, implementing Article 28 and 29 of the Directive EIO, an additional ground for non-execution applies; if in a similar Dutch criminal case the application of the measure is not possible, this is a reason to refuse the EIO. Furthermore the public prosecutor can choose another measure then asked for in the EIO, if the requested measure does not exist in Dutch law or would not be applicable.
b) Competent authority to request the measure abroad: The investigating judge on application of the public prosecutor.
c) Conditions of admissibility of outcomes of this measure as evidence in your country as requesting state: The measure has to be admissible in the requested state. And needs to come from the investigating judge. With regard to, persons entitled to privilege, such as lawyers, doctors, notaries, etc. see below (under J).
j) What are the obligations under your law to control or review interception of telecommunication traffic already in progress (e.g. prohibition to intercept a call between the accused person and their defense counsel etc.)?
Is it possible in your opinion to transfer this obligation to the state, which requested the interception of telecommunications with immediate transmission to the issuing state? (this question concerns art. 30(6)(a) of the EIO Directive): In principal, it is not allowed to intercept a call between the accused person and their defense counsel. However, exceptions are possible. Phone calls of defense counsels are protected in the following ways:
First of all, the interception of communication needs to be ended when a number is recognized as the number of a defense counsel (there is an automated system in place for this).
If a call between the accused person and their defense counsel is intercepted, the recordings of communication that fall under the scope of attorney-client privilege/ the privilege to decline to give evidence need to be destroyed. If the communication does not fall under the privilege to decline to give evidence, the transcript thereof can only be used after the investigating judge has given authorization.
It is possible to transfer this obligation to the state that requested the interception of telecommunications with immediate transmission to the issuing state if the international law allows.
The measure of interception of telecommunication can be applied to anyone (other than the suspect) if it is urgently required in the interest of the investigation (which has to be substantiated).
In case of extreme urgency, both the public prosecutor and the investigating judge are available 24/7.