Act To Consent To The Agreement Between The Kingdom Of Belgium And The United States Of America On The Strengthening Of Cooperation In The Prevention And The Fight Against Serious Crime, Established In Brussels (1) (2), September 20, 2011

Original Language Title: Loi portant assentiment à l'Accord entre le Royaume de Belgique et les Etats-Unis d'Amérique sur le renforcement de la coopération dans la prévention et la lutte contre la criminalité grave, établi à Bruxelles le 20 septembre 2011 (1) (2)

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8 MAI 2014. - An Act to Enact the Agreement between the Kingdom of Belgium and the United States of America on the Strengthening of Cooperation in the Prevention and Control of Serious Crime, established in Brussels on 20 September 2011 (1) (2)



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Agreement between the Kingdom of Belgium and the United States of America on the Strengthening of Cooperation in the Prevention and Control of Serious Crime, established in Brussels on 20 September 2011, will emerge its full and full effect.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 8 May 2014.
PHILIPPE
By the King:
Deputy Prime Minister and Minister for Foreign Affairs,
D. REYNDERS
Deputy Prime Minister and Minister of the Interior,
Ms. J. MILQUET
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Notes
(1) Senate (www.senate.be):
Documents: 5-2274.
Annales du Sénat : 23/01/2014.
House of Representatives (www.lachambre.be):
Documents: 53-3313.
Full record: 13/03/2014.
(2) Entry into force: 22/05/2014.

AGREEMENT
ENTER
BELGIUM ROYAUME
AND
THE UNITED STATES OF AMERICA
SUR
STRENGTHENING OF COOPERATION
IN PREVENTION AND LUTTE CONTRE LA CRIMINALITE GRAVE
the Kingdom of Belgium
and
the United States of America
(hereinafter "the parties"),
Desiring to cooperate as partners to prevent and combat serious crime more effectively, in particular terrorism,
Recognizing that information sharing is essential to combating serious crime, in particular terrorism,
Recognizing the importance of preventing and combating serious crime, in particular terrorism, in the respect of fundamental freedoms and rights, including privacy,
Inspired by the Prüm Treaty of 27 May 2005, aiming at strengthening cross-border cooperation to combat terrorism, cross-border crime and illegal immigration, as well as by the European Council Decision of 23 June 2008,
In seeking to strengthen and encourage cooperation among Parties in a spirit of partnership,
The following agreed:
Article 1
Definitions
For the purposes of this Agreement,
1. The concept of "criminal justice purposes" includes all activities defined as the administration of criminal justice, in other words the realization of one of the following activities: research, arrest, incarceration, release before trial, release after trial, prosecution, judicial decision, judicial review or reintegration of defendants or criminal offenders. The administration of criminal justice also includes criminal identification activities.
2. The notion of "ADN profiles" (ADN identification diagrams) means a literal or digital code representing a number of identification characteristics of the non-coding part of a human DNA sample analyzed, namely the specific chemical form of the different DNA loci.
3. The concept of "personal data" refers to all information concerning an identified or identifiable natural person ("the data subject").
4. The concept of "processing of personal data" refers to any operation or set of transactions carried out or not using automated processes and applied to personal data, such as the collection, registration, organization, preservation, adaptation or modification, sorting, extraction, consultation, use, communication by transmission, dissemination or other form of layout, interlocking or
5. The notion of "indexed data" refers to the DNA profile and the associated reference (DNA indexed data) or to the typographical data and the associated reference (Dactyloscopic indexed data). The indexed data cannot contain any data allowing the direct identification of the data subject. Indexed data that cannot be attached to any person (no traceability) must be recognizable as such.
Article 2
Purpose and scope of this Agreement
1. The purpose of this Agreement is to strengthen cooperation between the United States and Belgium in terms of prevention and control of serious crime.
2. The possibilities of consultation provided for in this Agreement are used only for the purposes of criminal justice, including when applied to the border where an individual on whom additional data are sought has been identified for further consideration.
3. This Agreement includes a comprehensive range of crimes punishable by maximum deprivation of liberty for more than one year or by heavier penalties. These crimes are referred to in the annex to this Agreement and are referred to in the following articles by the concept of "grave crime".
Article 3
Typographical data
For the purpose of carrying out this Agreement, Parties shall ensure the availability of indexed data from the file of national automated fingerprint identification systems created for the prevention and investigation of criminal offences. The indexed data contain only typographical data and a reference number.
Article 4
Automated consultation of typographical data
1. For the purpose of preventing and investigating serious crime, each Party authorizes the national contact points of the other Party, as referred to in Article 6, to access the indexed data of the automated fingerprint identification system it has created for that purpose, with the power required to conduct automated consultations by comparison of the typographical data. The consultation is only possible on a case-by-case basis and in accordance with the national law of the requesting party.
2. Confirmation of a formal agreement between a typographical data and an indexed data held by the File Manager Party is established by the requesting Party's national contact points, by means of an automated transmission of the indexed data required for a clear attribution.
Article 5
Additional personal data transmission and other information
If the procedure provided for in Article 4 reveals a consistency of typographical data, the transmission of other available personal data and other information relating to indexed data shall be governed by the national law of the requested Party, including the rules relating to mutual legal assistance, and such data shall be communicated in accordance with Article 6.
Article 6
National contact points and enforcement agreements
1. For the purpose of transmitting data referred to in Article 4 and subsequent transmission of additional personal data referred to in Article 5, each Party shall designate one or more national contact points. The contact point shall transmit the data in question in accordance with the national law of the party having designated it. It is not necessary to use other channels of mutual legal assistance available except where necessary, in particular to authenticate data for their admissibility in the judicial proceedings of the requesting Party.
2. Details relating to the technical consultation procedures conducted in accordance with Article 4 will be determined in one or more implementing agreements or conventions.
Article 7
Automated consultation of DNA profiles
1. If the national law of each Party authorizes it and on the basis of the principle of reciprocity, each Party may authorize the national point of contact of the other Party, as referred to in Article 9, to access the indexed data of its DNA analysis files, with the authority required to conduct automated consultations by comparison of DNA profiles, as part of an investigation into a serious form of crime. The consultation is only possible on a case-by-case basis and in accordance with the national law of the requesting Party.
2. If an automated consultation reveals concordances between a transmitted DNA profile and a DNA profile recorded in the viewed file of the other Party, the national contact point of the requesting Party automatically receives the indexed data for which a concordance has been highlighted. If no concordance can be highlighted, notification is made automatically.
Article 8
Transmission of other personal data and other information
If the procedure referred to in Article 7 reveals a concordance of DNA profiles, the transmission of other available personal data and other indexed data shall be governed by the national law of the requested Party, including provisions relating to mutual legal assistance, and such data shall be communicated in accordance with Article 9.
Article 9
National Contact Point and Implementing Agreements
1. For the purpose of transmitting data referred to in Article 7, each Party shall designate a national point of contact. The contact point shall transmit the data in question in accordance with the national law of the Party having designated it. It is not necessary to use other available mutual legal assistance channels except where necessary, for example to authenticate data for their admissibility in the judicial proceedings of the requesting Party.
2. Details of the technical procedures for consultations conducted in accordance with Article 7 will be settled in one or more implementing agreements or conventions.
Article 10
Transmission of personal data and other information
for the prevention of serious criminal and terrorist offences
1. For the purposes of the prevention of serious criminal and terrorist offences, Parties may, in accordance with their respective national law and in particular cases, without even having received the request, transmit to the national contact point of the other Party, as referred to in paragraph 7 of this article, the personal data referred to in paragraph 2 of this article, to the extent necessary in respect of particular circumstances allowing the person(s) concerned:
a. commit or have committed terrorist or terrorist offences, or offences related to a terrorist group or association, as defined in the national law of the Party providing the data; or
b. train or have been trained to commit the offences referred to in subsection (a); or
c. commit or have committed a serious criminal offence, or adhere to an organized criminal association or group.
2. The personal data to be transmitted includes, where available, the name, surnames, old names, other names, aliases, names orthographed differently, sex, date and place of birth, current nationality and former nationalities, passport number, number of other identity documents and the relevant data, as well as a description of any evidence or circumstances that are presumed to be givener of this article.
3. In addition to the notification referred to in Article 25, sentence 1, Parties may, in a separate declaration, notify each other of the terrorist offences considered to be such under the respective law of each Party and in accordance with paragraph 1er of this article. This declaration may be amended at any time by notification to the other party.
4. In accordance with its national law, the Party that transmits the data may establish conditions for the use of such data by the Party that receives them. If the latter accepts the data, it is obliged to comply with the said conditions.
5. The party providing the data cannot impose general restrictions on the legal standards of the receiving party for the processing of personal data as a condition for the provision of the data referred to in paragraph 4 of this article.
6. In addition to the personal data referred to in paragraph 2 of this article, Parties may transmit to each other non-personal data relating to the offences listed in paragraph 1er of this article.
7. Each Party shall designate one or more national focal points for the transmission of personal and other data to the points of contact of the other Party in accordance with this Article. The powers of national focal points are governed by the national law in force.
Article 11
Protection of privacy and data protection
1. The Parties recognize that the use and processing of personal data that they receive from each other is of crucial importance in preserving confidence in the implementation of this Agreement. Parties also recognize the critical importance of recourse mechanisms, the protection of privacy enjoyed by the persons concerned under the respective rights of the Parties and the strict and effective control of data protection and confidentiality regimes.
2. Parties undertake to process personal data fairly and in accordance with their respective rights and:
a. ensure that the personal data transmitted is adequate and relevant to the specific purpose of the transfer;
b. retain personal data only for the duration required for the purpose for which it was required or subsequently processed under this Agreement; and
c. to ensure that potentially incorrect personal data is notified promptly to the recipient Party in order to take the necessary corrective measures.
3. This Agreement sets out the rights and obligations of Parties with respect to the use of personal data provided in accordance with this Agreement, including the correction, locking and deletion of data as referred to in Article 14. The rights of individuals who exist independently of this Agreement are not affected. However, this Agreement does not confer any right on an individual, including obtaining, deleting or excluding any evidence or impeding the exchange of personal data.
Article 12
Additional protection for the transfer of certain categories
of personal data
1. Personal data that reveal racial or ethnic origins, political opinions, religious beliefs or other philosophical convictions, trade union affiliation or sexual health and preferences may only be transmitted if they are particularly relevant for the purposes of this Agreement.
2. Parties, aware of the particularly sensitive nature of the aforementioned categories of personal data, shall take appropriate safeguards, including appropriate security measures, to protect such data.
Article 13
Limitations to data protection processing
personal and other data
1. Without prejudice to Article 10, paragraph 4, each Party may process the data transmitted under this Agreement:
a. for purposes of criminal investigations;
b. to prevent a serious threat to public security;
c. in its non-criminal judicial or administrative proceedings, directly related to the investigations referred to in paragraph (a), or
d. for any other purpose, only with the prior consent of the Party that transmitted the data.
2. The parties shall refrain from transmitting the data transmitted under this Agreement to any third State, international body or private entity without the consent of the Party that transmitted the data and without the appropriate guarantees.
3. A party may conduct an automatic consultation of the typographical or DNA data files of the other Party, referred to in Articles 4 or 7, and process the data thus released, including communicating the existence of a result or not, solely for the purpose of:
a. Determine the consistency between DNA profiles or comparative typographical data;
b. prepare and submit a request for follow-up for mutual assistance in accordance with national law, including mutual legal assistance rules, in the event of consistency of such data; or
c. conduct a journalization, as authorized or required by its national law.
The File Manager Party may only use the data transmitted by the requesting Party during an automatic search, carried out in accordance with Articles 4 and 7, if this use is necessary to respond by automated means of the request or to carry out logs in accordance with Article 15. The data transmitted for comparison shall be erased immediately after obtaining the automated response, unless the continuation of the processing is necessary for the purposes provided for in that same article, paragraph 3, point (b) or (c).
Article 14
Correction, locking and deletion of data
1. At the request of the Party which transmits the data, the Party concerned shall be required to correct, lock or delete, in accordance with its national law, the data transmitted under this Agreement if it is inaccurate or incomplete. The same applies if the collection or subsequent processing of data violates this Agreement or the rules applicable to the Party providing the data.
2. Where a Party has reason to believe that the data transmitted by the other Party under this Agreement are inaccurate, it shall take all necessary measures to avoid considering these data as reliable. These measures include the addition of additional data, the removal or correction of data.
3. Each Party shall inform the other whether the data transmitted or received under this Agreement are inaccurate, unreliable or particularly doubtful.
Article 15
Documentation
1. Each Party shall report on any transmission and receipt of data made with the other Party under this Agreement in a logging register. The purpose of this register is to:
a. ensure effective control of data protection in accordance with the national law of the Party concerned;
b. allow Parties to assert the rights referred to in articles 14 and 19; and
c. ensuring data security.
2. Journalization includes:
a. Information on data transmitted;
b. the data transmission date; and
c. the recipient of the data when transmitted to other entities.
3. Daily data are protected by appropriate provisions against improper use and any other form of abuse, and are retained for a period of two years. Upon expiry of this period, the recorded data shall be deleted immediately, unless the deletion is contrary to national law, including the applicable data protection and retention rules.
Article 16
Data security
1. Parties shall ensure the application of the necessary technical measures and organizational arrangements to protect personal data from any incidental or unlawful destruction, incidental loss or unauthorized dissemination, alteration, unauthorized access or any other form of unauthorized processing. More specifically, Parties take reasonable steps to ensure that only authorized individuals can access personal data.
2. Agreements or enforcement provisions that govern the automatic search procedures for typographical or DNA data, in accordance with Articles 4 and 7, establish:
a. that measures that respond to the most recent techniques are being taken to ensure the protection, security, confidentiality and integrity of data;
b. that when using generally accessible networks, encryption and authentication procedures recognized by the competent authorities in this regard are used; and
c. a mechanism to ensure that only authorized research is carried out.
Article 17
Transparency - information transmission to affected persons
1. Nothing in this Agreement shall be construed as contradictory to the legal obligations of the Parties, as defined in their national legislation, to inform the persons concerned about the purpose of processing, the identity of the person responsible for processing, the recipients or the categories of recipients and the existence of the right of access and the right to rectification of the data concerning them, and to provide any other information such as the legal basis for processing, the time limits for the retention of the data and the
2. This information may be denied in accordance with the national law of the Parties, including if the transmission is likely to interfere:
a. the purposes of treatment;
b. investigations or prosecutions by the competent authorities in the United States or Belgium; or
c. rights and freedoms of third parties.
Article 18
Monitoring
1. The responsibility for controlling the processing of personal data by the Parties under this Agreement, including the transmission of data to other entities, shall be vested in an independent data protection authority or, where appropriate, the competent authority of the Party concerned.
2. The organization performing the recording of the data shall forthwith transmit the recorded data, in accordance with section 15, to the authority making the request, in accordance with paragraph 1er of this article.
Article 19
Information
Upon request from the Party that transmitted the data, the Party shall inform the processing of the data transmitted and the results obtained. The receiving Party shall ensure that the other Party responds promptly to the other Party.
Rule 20
Relationship with other agreements
None of the provisions of this Agreement shall be deemed to limit or infringe upon the provisions of any treaty, agreement, enforcement relationship of the law in force or national law allowing the sharing of information between the United States and Belgium.
Article 21
Consultations
1. Parties shall consult regularly with respect to the implementation of the provisions of this Agreement, including the Annex.
2. In the event of a dispute relating to the interpretation or application of this Agreement, including the Annex, the Parties shall agree to facilitate the resolution of that dispute.
Article 22
Costs
Each Party shall bear the costs incurred by its authorities in the implementation of this Agreement. Parties may agree on different arrangements under special circumstances.
Article 23
End of Agreement
Each Party may terminate this Agreement on a written notice of three months to the other Party. The provisions of this Agreement shall remain applicable to data transmitted prior to termination.
Article 24
Amendments
1. Parties shall consult when an amendment to this Agreement is requested by one of the Parties.
2. This Agreement may be amended with the written agreement of the Parties at any time and in accordance with the internal procedures of each Party.
Rule 25
Entry into force
1. This Agreement shall enter into force, with the exception of Articles 7 to 9, on the date of the last note concluding an exchange of diplomatic notes between the Parties indicating that each Party has taken all necessary measures to enter into force of the Agreement.
2. Sections 7 to 9 of this Agreement shall enter into force after the conclusion of the agreement(s) or of the enforcement arrangement(s) referred to in Article 9 and on the date of the last note concluding an exchange of diplomatic notes between the Parties indicating that each of them is in a position to apply these articles on a mutual basis. This exchange shall take place if the legislation of both Parties authorizes the type of DNA test referred to in Articles 7 to 9.
Established in Brussels on 20 September 2011, in duplicate, in English, French and Dutch, each text being equally authentic.

Annex
The crimes and offences referred to in this Agreement are listed below, and also include conspiracy offences for the purpose of committing such offences, membership in an organized criminal group, or attempting to commit such offences, when criminalized.
1. Offences against persons: genocide; torture; murder; homicide and related crimes trafficking in human beings; involuntary servitude; rape and other sexual crimes such as child pornography and sexual assault; assault and/or injury with intent to cause serious injuries or consequences of such injuries; abduction; hostage taking; management or supervision of a prostitution network.
2. Crimes against the State: terrorist offences (including offences referred to in the UN conventions on terrorism, the provision of material support to terrorists, the provision of material support to terrorist organizations, as well as the provision of military training of a terrorist organization or such training); violations of UN resolutions on blocking ownership and prohibiting transactions with persons violating the applicable rules of international arms trafficking; prohibited transactions of biological, chemical or nuclear materials; sabotage; spying (including computer and economic spying); smuggling of migrants; obstruction of justice; false testimony or incitement to false testimony; false statements; threats.
3. Offences involving weapons: offences involving firearms, including, but not exhaustive, the trafficking of weapons, offences related to equipment of destruction or explosive materials; concealed possession of a weapon with the intention of making use of it; use or illicit possession of biological, chemical or nuclear weapons or any other weapons of mass destruction; production, transfer or possession of radiological dispersion devices.
4. Flight/fraud offences: burglary; robbery; armed robbery; blackmail; robbery; corruption; diversion of funds; extortion; money laundering; racket; cheque fraud without reserve; fraudulent offences (fals-money, use of falsehood, fraud, fraudulent and illegal use of documents, including but not limited to credit cards and passports); tax fraud; offences relating to theft; smuggling; trafficking in stolen goods; falsification of currency or goods.
5. Serious offences involving controlled substances: distribution or trafficking of narcotics, controlled and psychotropic substances and marijuana; possession, or possession with intent of sale, narcotics, controlled and psychotropic substances, or marijuana, with the exception of the possession of small quantities not deemed to be a serious offence under national law.
6. Crime against property: criminal fire; explosive attacks; deliberate destruction of property; high seas piracy; environmental crimes; serious criminal violations of data privacy, including illegal access to databases; Computer crimes.