Fiches Belges

Under article 706-81 of the French criminal code of procedure, infiltration is a measure consisting in the surveillance of the person suspected of the committal of a crime or an offence. To this end, the judicial police officer or agent pretends to be its coauthor, accomplice or receiver. Especially, he is authorized to use an alias. • The carrying out on French territory of infiltration operations by foreign police officers is provided for at article 694-7 of the Code of Criminal Procedure. • Convention of 2000 (art. 14) and Second Additional Protocol to the Convention of 1959 (art. 19):Covert investigations on french territory shall take place in accordance with the national law and procedures of France. • Directive 2014-41 on EIO: The carrying out on French territory of infiltration operations by foreign police officers is provided for at article 694-47 of the Code of Criminal Procedure in relation with article 694-17. Regardless the applicable instrument, under French law, the infiltration is to be conducted under the direction of officers of the French judicial police and in accordance with the provisions of articles 706-81 to 706-87 of the Code of Criminal Procedure. This measure is applicable in relation to offences under article 706-73 of the Code of Criminal Procedure (organised crime). The foreign officers must be assigned, in their own country, to a specialised service and they must carry out police operations similar to those carried out by specially authorised national officers. The letter of request must state the length of time for which the infiltration is being requested. If the length of time exceeds 4 months the request must be renewed. Under French law, the infiltration is the subject of a report written by the judicial police officer who coordinated the operation. Moreover, the judicial police officer under whose responsibility the undercover operation is carried out may only be heard as a witness on the operation. Nevertheless if it appears from the report that the person under investigation or appearing before the trial court is directly implicated by findings made by an agent who personally carried out the undercover operations, this person may ask to be confronted with this agent. The questions asked to the agent during the confrontation must ensure the secrecy of the agent's true identity.

• EU member states: Article 29 of the 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 at article 694-47. Ireland and Denmark: Article 14 of the 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 more specifically article 19 of its Second Additional Protocol of 16 October 2001.

• 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. • Requests based on the MLA Convention of 29 May 2000 and the Second additional Protocol to the Convention of 20 April 1959 : a mutual legal assistance request asking for permission for infiltration operations to be carried out on French territory by foreign police officers must be addressed to the Ministry of Justice: Ministry of Justice, Directorate of Criminal Affairs and Pardons, Office of International Mutual Legal Assistance in Criminal Matters, 13 Place Vendôme, 75042 PARIS cedex 01, France. Fax: 01.44.86.14.11 (article 694-7 of the Criminal code of procedure). It will be necessary to obtain the agreement, in advance, of the Ministry of Justice, and that agreement may be subject to conditions. The request is then transmitted to the judicial authority with territorial jurisdiction (public prosecutor or investigating judge), whose authorisation for the operation is also required.

• Directive 2014/41/EU of 3 April 2014 on the European Investigation Order: French. • European Convention on Mutual Assistance in Criminal Matters of 20 April 1959: A translation in French is not required (article 16) but it is nonetheless recommended that a translation be provided, in order to facilitate and expedite the execution of the request for assistance. 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. • European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and MLA Convention of 29 May 2000: The requested State executes the request for mutual legal assistance as soon as possible (Art. 1 Second additional Protocol to the Convention of 20 April 1959, 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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