Fiches Belges

Room surveillance, in French law, refers to the installation of a technical device having for object to capture, fix, transmit and record, without the consent of the concerned persons, their images while they are in a private place. It includes photographs taken by an investigator of a vehicle located in a private property not visible from the public highway or the capture of an image in the common parts of a co-ownership. The use of this device is codified in articles 706-95-11 and following of the Code of criminal procedure. This measure may be requested for the needs of the investigation and within the framework of investigations regarding of the following offences : - offenses related to organized crime under articles 706-73 and 706-73-1 of the code of criminal procedure; - offences committed on an automated information processing system covered by article 706-72 of the code of criminal procedure; - economic and financial offences covered by articles 706-1-1, 706-1-2 and 706-2-2. This special investigative technique can only be used with judicial authorization, either by the liberty and custody judge at the request of the public prosecutor (police investigation), or by the investigating judge after receiving the opinion of the public prosecutor (judicial investigation). The use of the system cannot have any other purpose than the investigation and the offense referred to in the authorization order of the liberty and custody judge or the investigating judge. The authorization to use this measure is issued for a maximum period of 1 month, renewable once (police investigation) or for a maximum period of 4 months, renewable (judicial investigation), but the total period cannot exceed 2 years. To install the device, the investigator is authorized, in accordance with article 706-96-1 of the Code of criminal procedure, to enter a vehicle or a private place, even outside the legal hours provided for in article 59 of the same code (6am-9pm). The article 706-96 of the Code of criminal procedure distinguishes: - on the one hand, the capture, fixation, transmission and recording of speech (the device may concern speech uttered in private and public places or vehicles) ; - on the other hand, the capture, fixation, transmission and recording of the image (the device is limited to people in a private place);

• EU countries : Directive 2014/41/EU of 3 April 2014 (EIO) Article 30 regarding interception of telecommunications, Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000, • Non-EU countries: the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, and its protocols or other Convention.

• On the basis of the Directive on EIO of 3 April 2014 : According to article 694-30 of the code of criminal procedure, the EIO issued by the authority of another Member State of the European Union is directly transmitted for recognition and execution to : - the investigating judge that has territorial jurisdiction, if this decision concerns acts that can only be ordered or carried out during a judicial investigation, or which can only be carried out in the course of an investigation with the authorization of the liberty and custody judge. - or, the public prosecutor that has territorial jurisdiction, in all other cases. • 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.

To place a hidden camera in a public place (e.g., in an office room) for investigative purposes, the rules are different. This device can be implemented under the general investigative powers of the public prosecutor and the investigating judge. The duration and perimeter of the installation of the device have to be limited. The judicial authority have to ensure that the system is proportional to the objective pursued. This device is intended to be used to search for evidence of the offence referred to it, against persons suspected of having committed them.