Fiches Belges

Under French law, the use of a technical device for real-time tracking is governed by articles 230-32 to 230-44 and article 709-1-3 2° of the Criminal code of procedure and article 67 bis-2 of the customs code. Most of the time, tracking measures are limited to the implementation of a technical surveillance, disconnected from any physical surveillance. The location data is obtained in real time and processed immediately or afterwards by the investigators. The crossing of the border cannot always be predicted. The location data, which has taken place on the territory of another State, may only be used in proceedings after the issuing of a mutual legal assistance request, either when the requested State has previously or concomitantly given its consent, or when it has subsequently authorised their use.

• EU member states : 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 in Articles 694-15 to 694-50 replaces particularly the provisions of The European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (and its two additional Protocols) and the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (and its Protocol of 16 October 2001) except for Ireland and Denmark. • non-EU countries : the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, or other Convention.

Request for the purpose of using and exploiting in the proceedings the data obtained in the context of cross-border tracking must be sent to the competent French judicial authority. If the facts of the case for which the cross-border tracking is being requested concerns organised crime (articles 706-73 and 706-74 of the Code of Criminal Procedure), authorisation can be requested from the Specialised Interregional Jurisdictions (JIRS). In other cases, it will be the prosecutor or the investigating judge with territorial jurisdiction at the first point of entry into French territory.

• 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.

Mutual legal assistance request concerning cross-border tracking must be addressed to the prosecution service or the investigating judge of the JIRS (the Specialised Interregional Jurisdiction) or to the prosecution service or the investigating judge with territorial jurisdiction. The matter must be referred to the prosecutor as soon as the tracker has been put in place or as soon as the continued monitoring of a tracking device is envisaged. If it is impossible to request an authorisation to continue monitoring a tracking device before the crossing of the French border, the case can nonetheless be referred to the competent prosecution service or investigating judge to request its authorisation. The fact that the authorisation has not been requested in advance will not exempt the competent authority to request the authorisation of using the data after the border has been crossed.

Once the authorisation has been given by the French judicial authority, the authorisation is valid for the whole French territory. If it is not known where the point of entry will be, the public prosecutor or the investigating judge of Paris will have jurisdiction. The cross-border tracking may be accompanied by a physical surveillance of the person (cross-border observation). In this case, in addition to the mutual legal assistance request for the purpose of using and exploiting in the proceedings the data obtained, a request for cross-border observation must be made on the basis of the Convention Implementing the Schengen Agreement (art. 40) and the Paris Agreement (art. 12). The Office of International Mutual Legal Assistance in Criminal Matters of the Ministry of Justice, which is a central authority and not a judicial authority, issues authorisations for cross-border observations. Please see fiche Belge on cross border observation.