Measure Implementation

Is this measure possible in your Member State under International Judicial Cooperation?

This technique is strictly regulated and can be used in any part of the telecommunication system. The following conditions must be met: - Suspicion of an indictable offence (preventive custody allowed for any criminal offence with a 4 year prison sentence); - The measure must be urgently required for the investigation; - 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. Regarding other forms of telecommunications: The special investigative powers act offers the possibility to record other forms of communication, such as recording confidential communications with the aid of a technical device. - Suspicion of an indictable offence (preventive custody allowed for any criminal offence with a 4 year prison sentence and a breach of the legal order); - The measure must be urgently required for the investigation; - Applicable to any person; it is not a requirement for the suspect to be a party; When the location is an “enclosed space” * it regards an enclosed place as defined by Dutch law (a car f.i.); * dwelling, if urgently required by investigation + indictable offence subject to sentence of 8 years or more an authorization by an examining judge is required;

Legal Framework

International legal framework applicable for this measure in your Member State

EU Directive 2014/41/EU, with the European Investigation Order (EIO), was implemented in Dutch law, effective from June 17th 2017. For countries who have not implemented this EU Directive: - EU Convention on Mutual Assistance in criminal matters between the member states of the European Union (29 May 2000); - European Convention on Mutual Assistance in criminal matters (Strasbourg, 1959); - Several bilateral and multilateral treaties.

Competent Authority

* receive the request/decision for judicial cooperation

The competent authority receive the EIO/MLA are the regional International Legal Assistance Centres (the regional IRCs) and the National Legal Assistance Centre (LIRC). The public prosecutor is competent to execute and in case of a “enclosed space” the examining judge.

Accepted languages

Accepted languages for the request/decision

When using an EIO: Dutch or English. Otherwise: one of the official languages of the Council of Europe, but preferably in English or German or a translation in the Dutch language.

Execution deadline

Deadlines for the execution of the request/decision (where applicable)

The deadlines mentioned in the EU Directive 2014/41/EU (EIO).

Concise legal practical information

Special requirements

- 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.

Last reviewed on 7 November 2022 by EJN Secretariat

NEXT MEASURE

  • Electronic evidence, interception and surveillance (A.50 - A.56)
  • A.51 Interception of telecommunication without the technical assistance of another MS (Annex C of the EIO)
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