Fiches Belges

Cross-border observations enable criminal investigators of foreign authorities who are conducting, on their territory, observation/surveillance of a person believed to have comitted an offence, to cross the border from their territory in order to continue their observation on the whole French national territory. There are two types of cross-border observations : ordinary cross-border observations (OTO) and urgent cross-border observations (OTU). Convention implementing the Schengen Agreement : The first type (OTO) involves making a request for authorisation before crossing the border, in cases relating to extraditable offences punishable by the foreign State by a prison sentence of at least one year or where there are substantial grounds for believing that the person observed may assist in the identification or location of such a person for the purposes of a criminal investigation. The second type (OTU) involves making a request for authorisation after crossing the border. Authorisations for urgent cross-border observations (OTU) are limited to the categories of the most serious offences listed at article 40-2 of the Convention implementing the Schengen Agreement. These requests for mutual assistance take a simplified form and are sent via officer-to-officer (law enforcement) cooperation channels. On completion of a cross-border observation operation, the investigators conducting the operation produce a report of the observations carried out on the foreign territory. It usually involves making a summary report, but the French authorities can ask the foreign officers who have entered French territory to remain at their disposal and to contribute to an investigation concerning the operation. Paris Agreement with Switzerland : The first type (OTO) involves making a request for authorisation before crossing the border, in cases relating to offenses punishable under French law by at least one year imprisonment. The second type (OTU) involves making a request for authorisation after crossing the border, in cases limited to specific categories of offenses (article 12 of the Agreement). In customs matters, the Naples II Convention provides at article 3 that the judicial authority conducting a criminal investigation may choose to have recourse either to the provisions governing mutual assistance in criminal matters or those of the Naples II Convention. The conventions set out the terms of engagement of the role of the observing investigators.

Convention Implementing the Schengen Agreement of 19 June 1990 : article 40. Paris Agreement with Switzerland of 9 october 2007 : article 12. EC MLA Convention between Customs Administrations of 23 January 1998 (Naples II) : article 21.

The authorisation to observe (conduct surveillance on) a person on French territory, transmitted by the Central Directorate of the Judicial Police, is issued, in writing, by an agent of the Office for International Mutual Legal Assistance in Criminal Matters (BEPI) of the Directorate of Criminal Affairs and Pardons (DACG), of the ministry of Justice. This authorisation is also granted to the foreign authority on week-ends and in the evenings by the duty magistrate of the DACG. Conditions may be attached to the authorisation. The authorisation applies to the whole of the national territory. The office of the general prosecutor of the jurisdictions concerned is informed of the granting of the authorisation by the DACG.

French.

For an ordinary cross-border observation (OTO), it is necessary to send a request for an authorisation in advance, before the border is crossed. Urgent cross-border observations (OTU) must be stopped if France requires this after having been informed of the crossing of the border or after having received the request or if the authorisation was not given within 5 hours of the border being crossed (as required under the Schengen Convention and Naples II Convention) or within 12 hours (as required under the Paris Agreement with Switzerland).

The actions that the observing officers are permitted to carry out, while complying with the law of the contracting party on whose territory they are conducting the observation, exclude, in general, any coercive actions. Thus, while they can make various observations, they can conduct surveillance (i.e. following/"tailing" a person or persons), take photographs, gather spontaneous statements or seize items which have been provided on a voluntary basis, they are not permitted to conduct telephone intercepts, to enter places of residence or places that are not accessible to the public or to question or arrest a person who is the subject of the observation. The questioning or the arrest of the person who is the subject of the observation can only be carried out by the French authorities. French officers conducting observations in foreign countries are officers and investigators of the judicial police, of the national police and of the national gendarmerie. In addition, customs officers who have obtained an authorisation in advance from the public prosecutor can exercise this right within the parameters of a judicial investigation relating to the trafficking of drugs, arms or explosives or the illegal transporting of toxic or hazardous waste.