Fiches Belges

Electronic evidence means all the data collected that allows the gathering of evidences of a criminal offence in electronic form. It is more impartial than other types of evidence, such as testimony. They allow the identification of the holders of social network accounts who commit offences, to determine the various contacts of a person suspected of committing an offence, or to access certain content that may be essential to the characterization of offences. There are 3 categories of data: - Subscription data This is the data voluntarily provided by a subscriber when opening an account or subscribing to a service: the type of communication service used, the identity, postal or geographical address and telephone number of the subscriber, the billing and payment data, etc. - Connection data The connection data are automatically created by the communications carried out via Internet or telephone. It gives informations on each message exchanged (name, first name, IP address). - Content data This is the actual content of the conversations exchanged. The obligation to retain data is incumbent on electronic communications operators, Internet service providers and hosts. This obligation have be created by the law n°2021-998 of July 30, 2021 and by three decrees of the Council of State dated October 20, 2021. There are 3 situations where the preservation of data is mandatory: - For the purposes of criminal proceedings, the prevention of threats to public security and the safeguarding of national security: information relating to the civil identity of the user (five-year period) and the information provided by the user when subscribing to a contract or creating an account as well as information relating to payment (one-year period) ; - For the purposes of combating crime and serious delinquency, preventing serious threats to public security and safeguarding national security: technical data that makes it possible to identify the source of the connection or those relating to the terminal equipment used (one year); - For reasons relating to the safeguarding of national security, when a serious, current or foreseeable threat has been established, the Prime Minister may order electronic communications operators to preserve certain categories of traffic data and precise location data (one year period). A request for preservation of connection data requires an injunction by a public authority. Only the judicial authority and certain authorized administrations - for example, the intelligence services - can demand the communication of connection data. This request is made under the control of the National Commission for the Control of Intelligence Techniques (CNCTR), which detains effective and binding powers. Generally speaking, most acts of investigation are intrusive and involve an invasion of privacy. The seriousness of the infringement may vary according to the acts, their nature, the nature of the data collected or the duration of the collection.

• Directive 2014/41/EU of 3 April 2014: Article 14 • Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000.

• 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). The request can also be addressed to the Prosecutor-General, who will forward it to the competent magistrate (judge or prosecutor).

Directive 2014/41/EU of 3 April 2014 on the European Investigation Order: French. • Convention of 29 May 2000 complementing this Convention 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 it 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). 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.

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