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Law On Additional Measures In The Fight Against Terrorism (1)

Original Language Title: Loi relative à des mesures complémentaires en matière de lutte contre le terrorisme (1)

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belgiquelex.be - Carrefour Bank of Legislation

27 APRIL 2016 - Anti-Terrorism Measures Act (1)



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
CHAPTER 1er. - General provision
Article 1er. This Act regulates a matter referred to in Article 74 of the Constitution.
CHAPTER 2. - Amendments to the law of 7 June 1969 setting the time during which no searches or house visits may be carried out
Art. 2. In the title of the law of 7 June 1969 fixing the time during which it cannot be carried out searches or house visits, the words "home searches or visits" are replaced by the words "perquisitions, house visits or arrests".
Art. 3. Article 1erParagraph 2 of the Act, as amended by the Act of 24 November 1997, is supplemented by the 6th drafted as follows:
"6° where the home visit or search involves an offence:
- in Book II, Title Ierter, Criminal Code, or;
- in book II, title VI, chapter Ier, in the same Code, where there are serious indications that firearms, explosives, nuclear weapons, biological or chemical weapons or harmful or dangerous substances that may endanger human lives in the event of a flight may be discovered. ".
Art. 4. Section 2 of the Act is replaced by the following:
"Art. 2. No arrests following a warrant to bring, arrest warrant, default arrest warrant or an immediate order of arrest, within the meaning of the Act of 20 July 1990 on pre-trial detention, may be made in an unopened place to the public before five o'clock in the morning and after nine o'clock in the evening. The same is true of an arrest made in Belgian territory under the Act of 19 December 2003 on the European arrest warrant or under a rule of treaty or customary international law by which Belgium is bound.
Prohibition referred to in paragraph 1er does not apply:
1° where a particular legal provision authorizes the arrest at night;
2° where a magistrate or a judicial police officer is present at the scene at or after the finding of a flagrant crime or offence;
3° in case of requisition or consent of the person who has the effective enjoyment of the place or person referred to in section 46, 2°, of the Code of Criminal Investigation;
4° in case of appeal from this place;
5° where the arrest relates to an offence:
- in Book II, Title Ierter, Criminal Code, or;
- in book II, title VI, chapter Ier, in the same Code, where there are serious indications that firearms, explosives, nuclear weapons, biological or chemical weapons or harmful or dangerous substances that may endanger human lives in the event of a flight may be discovered. ".
Art. 5. In article 1bis of the same law, inserted by the law of 5 August 1992, which becomes article 3, the words "in article 1, 3°" are replaced by the words "in articles 1, paragraph 2, 3°, and 2, paragraph 2, 3°".
CHAPTER 3. - Amendments to Article 90ter of the Code of Criminal Investigation
Art. 6. In Article 90ter, § 2, of the Code of Criminal Investigation, inserted by the law of 30 June 1994 and last amended by the law of 20 July 2015, the following amendments are made:
(a) 10° is replaced by the following:
"10° in Book II, title IX, chapter Ier, section 2bis, and chapter Ierbis of the same Code;
(b) a 16° bis is inserted as follows:
"16° bis to Article 47 of the decree of the Flemish Parliament of 15 June 2012 concerning the import, export, transit and transfer of defence-related products, other military-use equipment, law enforcement equipment, civilian firearms, parts and ammunition;"
(c) a 16° ter is inserted as follows:
"16° ter to Article 20 of the Decree of the Walloon Region of 21 June 2012 concerning the import, export, transit and transfer of civilian weapons and products related to defence; ";
(d) a 16° quater is inserted as follows:
"16° quater à l'article 42 de l'ordre de la Région de Bruxelles-Capitale du 20 juin 2013 relative à l'importe, à l'export, au transit et au transfert de produits liés à la défense, d'autre matériel peuvent servi à un usage militaire, de matériel liés au maintien de l'ordre, d'armes à feu à usage civil, de leurs pièces, accessoires et munitions;"
(e) a 16th quinquies is inserted as follows:
"16° quinquies in articles 8 to 11, 14, 16, 19, 1°, 2°, 3°, 5° and 6°, 20, 22, 27 and 33 of the law of 8 June 2006 regulating economic and individual activities with weapons, also known as the " Weapons Act";".
(f) a 16th sexie is inserted as follows:
"16° sexies to the Act of 28 May 1956 on explosive or deflagrated substances and mixtures and equipment that are loaded with them;"
(g) a 16° septies is inserted as follows:
"16° septies aux articles 21 à 26 de l'Accord de Coopération du 2 mars 2007 entre l'État fédéral, la Région flamande, la Région wallonne et la Région de Bruxelles-Capitale relatif à l'performance de la Convention sur l' interdiction de la mise à la point, de la fabrication, du storage et de l'emploi des armes chimiques et sur leur destruction, fait à Paris le 13 janvier 1993;".
CHAPTER 4. - Amendments to the Act of 5 August 1992
on the police function
Art. 7. Section 44/2 of the Police Service Act of 5 August 1992, inserted by the Act of 18 March 2014, the current text of which will form paragraph 1er, is supplemented by paragraph 2 as follows:
"§2. When the joint exercise, by all or part of the authorities, organs, agencies, services, directorates or commissions referred to in Article 44/11/3ter, each within the framework of its legal competences, of the missions for the prevention and monitoring of terrorism within the meaning of Article 8, 1°, b) of the law of 30 November 1998 of the information and security services or extremism within the meaning of Article 8, 1° c) of the same
The conditions for the creation of common data banks and the processing of personal data and information in these data banks are specified in article 44/11/3bis.
Section 139, paragraph 2, of the Criminal Code applies to common data banks. ".
Art. 8. In section 44/3 of the Act, inserted by the Act of 18 March 2014 and amended by the Act of 26 March 2014, the following amendments are made:
1° in paragraph 1er, paragraph 3, the words "Article 44/2" are replaced by the words "Article 44/2, § 1er";
2° it is inserted a paragraph 1er/1 to read:
§ 1er/1. A security and privacy advisor is jointly designated by the Ministers of the Interior and Justice for personal data and information processed in the context of the common data banks referred to in Article 44/2, § 2. It is responsible for these data banks for the missions referred to in § 1er, paragraph 5, and in particular, it ensures compliance with the general conditions of permissibility of processing as provided for in sections 4 to 8 of 8 December 1992 relating to the protection of privacy with respect to personal data processing.
The Security and Privacy Adviser is also responsible for contacts with the Organ and the Committee referred to in Article 44/6, paragraph 2.
It exercises its functions independently from the authorities, bodies, agencies, services, branches or commissions referred to in article 44/11/3ter. He reports directly to the Ministers of the Interior and Justice.
The function of a security and privacy advisor may not be exercised either by the manager or by the operational manager referred to in Article 44/11/3bis, §§ 9 and 10.
Following the advice of the Commission on the Protection of Privacy, the King may set out the rules that the Security and Privacy Adviser shall carry out his or her duties, particularly in connection with the authorities, organs, bodies, services, branches or commissions referred to in article 44/11/3ter.".
Art. 9. In section 44/4 of the Act, inserted by the Act of 18 March 2014 and amended by the Act of 26 March 2014, the following amendments are made:
1° in paragraph 2, paragraph 2 is supplemented by the words "in respect of data banks referred to in Article 44/2, § 1er".
2° Paragraph 2 is supplemented by a paragraph which reads as follows:
"The manager is the guarantor of the proper execution of these directives with respect to the data banks referred to in Article 44/2, § 2.".
Art. 10. In article 44/5 of the same law, inserted by the law of 18 March 2014, the words "article 44/2" are replaced by the words "article 44/2, § 1er".
Art. 11. In section 44/6 of the Act, inserted by the Act of 18 March 2014, the following amendments are made:
1° the words "article 44/2" are replaced by the words "article 44/2, § 1er",
2° the article is supplemented by a paragraph written as follows:
"In respect of the exercise of their respective missions, the control of the processing of personal information and data contained in the data banks referred to in Article 44/2, § 2, is ensured jointly by:
(a) the Police Information Control Board;
(b) the Standing Committee on the Control of Intelligence and Security Services, referred to in section 28 of the Act of 18 July 1991 on the Control of Police and Intelligence Services and the Coordinating Body for Threat Analysis.
They may at any time issue the recommendations they consider necessary for the treatments carried out in the common data banks. ".
Art. 12. In article 44/11/3, § 4 of the same law, inserted by the law of 18 March 2014, the words "article 44/2" are replaced by the words "article 44/2, § 1er".
Art. 13. In chapter IV, section 1erbis, of the same law, inserted by the law of 18 March 2014 and amended by the law of 26 March 2014, it is inserted a sub-section 7bis, comprising sections 44/11/3bis to 44/11/3quinquies, as follows:
"Subsection 7bis. Common data banks.
Art. 44/11/3bis. § 1er. For the joint exercise of the tasks referred to in Article 44/2, § 2, the Ministers of the Interior and Justice may jointly create common data banks which they become responsible for the processing.
§ 2. The creation of a common data bank is motivated by one of the following purposes:
1° the strategic, tactical or operational need to jointly process personal data and information to carry out the respective tasks of the authorities, bodies, agencies, services, branches or commissions referred to in Article 44/2, § 2;
2° aid in decision-making by administrative authorities, administrative police or judicial police.
§ 3. Prior to its establishment, the Ministers of the Interior and Justice declare the common data bank, as well as the processing procedures, including those relating to the recording of data, and the various categories and types of personal data and information processed, to the Committees and Organ referred to in Article 44/6, paragraph 2, which jointly issue a notice within 30 days of the receipt of the declaration.
§ 4. Common data banks allow the processing of different categories of personal data relating to persons, groups, organizations and phenomena that are adequate, relevant and not excessive in relation to the missions referred to in Article 44/2, § 2, and the purposes referred to in § 2.
For each common data bank, a royal decree deliberated in the Council of Ministers, after the advice of the Commission on the Protection of Privacy, determines the types of personal data processed, the rules of responsibilities for the protection of personal data of bodies, services, authorities and agencies dealing with data, the rules for the security of treatment, the rules for the use, preservation and deletion of data.
§ 5. The personal data retained in the common data banks shall be deleted as soon as the purposes referred to in § 2 disappear, and not more than 30 years after the last processing, without prejudice to the law of 24 June 1955 on archives.
After the last processing, it is examined at least every three years if the personal data always have a direct connection to one of the purposes of § 2. If this is not the case, the data is deleted.
§ 6. All treatments carried out by the branches, services, organs, bodies, authorities or commissions, in the common data banks are subject to a journalization which is kept for 30 years from the treatment carried out in the common data banks.
§ 7. Personal data and information to be deleted may be archived for up to 30 years.
At the end of this period, this data and information is erased, without prejudice to the Act of 24 June 1955 on archives.
The consultation of the archives of a common data bank can only be carried out in the following purposes:
1° support for the definition and implementation of police and security policy in the area of terrorism and extremism that can lead to terrorism;
2° the treatment of a history in an investigation of a criminal act of terrorism;
3° the defence of the authorities referred to in article 44/11/3bis § 2, 2° in court.
The result of the operation of the archives of the common data bank for the purpose set out in paragraph 1er1° is anonymized.
§ 8. Additional modalities for managing common data banks can be determined by a royal decree deliberated in the Council of Ministers, after the advice of the Privacy Commission.
§ 9. A manager is designated for each common data bank, by the King, on a joint proposal by the Ministers of the Interior and Justice. This manager is responsible for the technical and functional management of the common data bank.
The manager carries out at least the following tasks:
- create and make available the common data bank using the necessary technical means based on the possibilities arising from the ICT environment specific to its service;
- managing and maintaining the common data bank;
- translate into functional rules the procedures for the processing of information declared by ministers under § 3;
- to determine and enforce the technical standards necessary for the operation of the common data bank;
- provide technical and/or functional advice at the request of the operational manager or the security and privacy advisor;
- organize the rights and access to the treatments to be performed in the common data bank;
- providing documentation and technical assistance;
- managing and processing the reports of security incidents both technically and functionally.
§ 10. An operational manager is designated for each common data bank, by the King, on a joint proposal by the Ministers of the Interior and Justice. This manager is responsible for the operational management of the common data bank.
The operational manager shall at least:
- monitor the quality of the data processed in the common data bank and ensure their relevance to the purposes for which the data bank was created;
- perform a coordination function for the supply of the common data bank by the various services;
- to organize adequate collaboration between partner services with a view to achieving the intended objectives;
- ensure that the use of personal data and information meets the purposes described in § 2.
§ 11. For each common data bank, specific tasks of the manager and the operational manager may be determined by the King.
Art. 44/11/3ter § 1er. On the basis of the need to know, all or part of the personal data and information of the common data banks are directly accessible to the Organ and the following services, responsible for competence in the areas referred to in Article 44/2, § 2:
(a) the Organ for the Coordination of Threat Analysis;
(b) Integrated police;
(c) intelligence and security services.
§ 2. On the basis of the need to know, particularly at the strategic, tactical or operational level, the personal data and information of the common data banks may be communicated or be directly accessible to the following services or be subject to direct interrogation by these services, when they are responsible for competence in the areas provided for in Article 44/2, § 2:
(a) the Standing Committee on Local Police;
(b) General Directorate Crisis Centre;
(c) General Directorate Security and Prevention of Public Service in the Federal Interior;
(d) the General Directorate of Corrections and Prisons;
(e) Federal Public Service for Foreign Affairs, General Directorate for Consular Affairs;
(f) Public Ministry;
(g) The Financial Information Processing Unit;
(h) the Foreign Office;
(i) Investigation and research services of the General Customs Administration and Access.
By deliberately decreed in the Council of Ministers, after the advice of the Commission on the Protection of Privacy, the King determines the type of access and its terms and conditions for the bodies, authorities, directions or services referred to in paragraph 1er.
§ 3. By deliberately decreed in the Council of Ministers, after the advice of the Commission on the Protection of Privacy, the King may determine other Belgian public authorities, public bodies or bodies or public interests charged by the law of the application of the criminal law or who have legal public security missions, which, when they are responsible for competence in the areas provided for in Article 44/2, § 2, may access, on the basis of the need to know,
By deliberately decreed in the Council of Ministers, after the advice of the Commission on the Protection of Privacy, the King determines the type of access and its terms and conditions for the bodies, authorities, directions or services referred to in paragraph 1er.
In addition, on the basis of the need to know, in particular at the strategic, tactical or operational level, the Ministers of the Interior and Justice shall jointly designate the bodies, authorities or bodies provided for in paragraph 1er to which the personal data and information extracted from the common data banks can be communicated.
These bodies, authorities or bodies are determined in the prior declaration referred to in article 44/11/3bis, § 3.
§ 4. Organization and services referred to in § 1er as well as the directions, services, organs, bodies, authorities or commissions referred to in §§ 2 and 3 which directly access the common data banks shall, on their own initiative, transmit the personal data and information referred to in Article 44/2, § 2. These personal data and information are recorded in the common data banks, under their responsibility and following their internal validation procedures, in accordance with the rules determined by the King after collecting the notice referred to in article 44/11/3bis, § 3.
The personal data and information in the common data banks are immediately communicated to the head of the body of each police area concerned. In accordance with the conditions laid down in Article 44/1, § 4, and pursuant to this Article, the latter shall inform the competent administrative police authorities.
§ 5. By derogation from § 4, the obligation to supply common data banks is deferred when and as long as the competent magistrate, with the consent of the federal prosecutor, considers that this diet may compromise the exercise of public action or the security of a person. Where applicable, the federal prosecutor may determine the terms of this exemption. The federal prosecutor checks, on a regular basis, the need for the maintenance of the supply of common data banks.
By derogation from § 4, the obligation to supply common data banks is deferred, when and as long as the leader of an intelligence and security service considers that this power supply can compromise the security of a person or when information comes from a foreign service that has explicitly requested that it not be transmitted to other services.
Art. 44/11/3quater. For the purpose of strengthening the prevention and control of terrorism and extremism that may lead to terrorism, personal data and information extracted from a common data bank may be communicated in accordance with the terms determined by the King, to a third authority or entity after evaluation by the manager, operational officer, body and services referred to in Article 44/11/3ter, § 1er.
Art. 44/11/3quinquies. For the purposes referred to in Article 44/2, § 2, without prejudice to the international rules binding on Belgium, the personal data and information of the common data banks may be communicated to the foreign police services, international judicial and police cooperation organizations and international law enforcement agencies in accordance with Article 44/11/13.
For the purposes referred to in Article 44/2, § 2, without prejudice to the international rules binding on Belgium, the personal data and the information of the common data banks may be communicated to the foreign intelligence services and to the foreign bodies responsible for the analysis of the threat or equivalent in accordance with Articles 21 and 22 of the Act of 8 December 1992 on the protection of privacy with respect to the processing of personal data.
The King shall determine the terms of the communication referred to in paragraph 1er and 2. "
CHAPTER 5. - Amendment to the Act of 8 December 1992 on the Protection of Privacy with regard to personal data processing
Art. 14. In Article 3, § 4, of the Law of 8 December 1992 on the Protection of Privacy with respect to the processing of personal data, inserted by the Law of 11 December 1998 and amended by the Laws of 3 May 2005 and 10 July 2006, the words ", by the Ministers of the Interior and Justice and referred to in Article 44/2, § 2 of the Law on the Police Function" are inserted between the words "secretary" and the words "secretary"
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 27 April 2016.
PHILIPPE
By the King:
The Minister of Justice,
K. GEENS
Seal of the state seal:
The Minister of Justice,
K. GEENS
____
Note
(1) House of Representatives
(www.lachambre.be)
Documents: 54-1727
Full report : 14 April 2016