Law On The Management Of Police Information And Amending The Law Of 5 August 1992 On Police Function, The Law Of 8 December 1992 Relative To The Protection Of Privacy With Respect To The Processing Of Personal Data And The Code Of

Original Language Title: Loi relative à la gestion de l'information policière et modifiant la loi du 5 août 1992 sur la fonction de police, la loi du 8 décembre 1992 relative à la protection de la vie privée à l'égard des traitements de données à caractère personnel et le Code d'

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18 MARCH 2014. - Act respecting the management of police information and amending the Act of 5 August 1992 on the police function, the Act of 8 December 1992 on the protection of privacy with respect to personal data processing and the Code of Criminal Investigation



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART Ier. - General provision
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
PART II. - Amendments to the Police Function Act
Art. 2. Section 3 of the Police Service Act of 5 August 1992 is supplemented by the 6th drafted as follows:
"6°: Police Information Monitoring Body, hereinafter referred to as the "Control Body": the body referred to in section 36ter of the Act of 8 December 1992 on the protection of privacy with respect to the processing of personal data.".
Art. 3. In chapter IV, section 1re of the same Act, subsection 3, comprising sections 44/1 to 44/11, inserted by the Act of 7 December 1998 organizing an integrated, two-tiered police service, is repealed.
Art. 4. In chapter IV of the Act, a section 1 is inserted.rebis entitled "De la gestion des informations".
Art. 5. In section 1rebis, inserted by section 4, is inserted a sub-section 1re "General rules of information management".
Art. 6. In subsection 1re, inserted by Article 5, an article 44/1 is inserted as follows:
"Art. 44/1. § 1er. As part of the exercise of their duties, as defined in Chapter IV, Section 1re, police services may process personal information and data provided that they have an adequate, relevant and non-excess character in relation to the purposes of administrative police and judicial police for which they are obtained and for which they are subsequently processed.
§ 2. In order to carry out their duties, the police may collect and process, in accordance with the terms determined by the King, after the advice of the Privacy Commission, personal data referred to in section 6 of the Privacy Act of 8 December 1992 with respect to personal data processing.
§ 3. When, as part of the exercise of their administrative police missions, the police acquire the knowledge of personal data and information relevant to the exercise of the judicial police, they shall promptly inform or restrict it, with written confirmation, the competent judicial authorities.
§ 4. When, as part of the exercise of their judicial police missions, the police acquire the knowledge of personal data and information relevant to the exercise of the administrative police and which may give rise to administrative police decisions, they shall inform without delay or restriction, with written confirmation, the competent administrative police authorities, unless this may affect the exercise of public action, but without prejudice to the measures necessary for the protection of persons
Art. 7. In the same subsection 1rean article 44/2 is inserted as follows:
"Art. 44/2. When the exercise of administrative police and judicial police missions requires that police services structure the personal data and information referred to in section 44/1 so that they can be directly recovered, they are processed in an operational police data bank, belonging to one of the categories of data banks referred to in paragraph 2 according to the specific purposes of each category of data banks.
The categories of operational police data banks are:
1° the General National Data Bank, hereinafter referred to as "B.N.G."
2° Basic data banks;
3° special data banks.
The purposes referred to in paragraph 1er are specified respectively in articles 44/7, 44/11/2, § 1er and 44/11/3, § 2.
Art. 8. In section 1rebis, inserted by article 4, is inserted a sub-section 2 entitled "The Security and Privacy Adviser".
Art. 9. In subsection 2, inserted by section 8, an article 44/3 is inserted as follows:
"Art. 44/3. § 1er. The processing of personal data referred to in section 44/1, including that carried out in the data banks referred to in section 44/2, is carried out in accordance with the Act of 8 December 1992 on the protection of privacy in respect of personal data processing and without prejudice to the Act of 24 June 1955 on archives.
These personal data and information referred to in Article 44/2 are directly related to the purpose of processing.
Each police zone and each direction of the federal police dealing with personal data and information referred to in section 44/1, including those included in the data banks referred to in section 44/2, shall designate a security and privacy advisor.
The Security and Privacy Adviser may serve for several local police areas or several federal police departments.
The Security and Privacy Adviser is particularly responsible:
1° of the provision of qualified advice in the protection of privacy and security of personal data and information and their processing,
2° of the establishment, implementation, updating and monitoring of a privacy policy;
3° of the execution of other missions relating to the protection of privacy and security that are determined by the King or entrusted to him by his head of body or director respectively.
The Security and Privacy Adviser is also responsible for contacts with the Privacy Commission.
He exercises his functions independently. It reports directly to the chief of the local police if it belongs to the local police or the director if it belongs to the federal police.
The King may set the rules that the Security and Privacy Adviser exercises his duties.
§ 2. It is created a platform called the "data security and protection platform".
This platform is responsible for ensuring the coordinated implementation of the work of security and privacy advisers. The composition and operating modalities of this platform are fixed by the King.".
Art. 10. In the same subsection 2, an article 44/4 is inserted as follows:
"Art. 44/4. § 1er. The personal data and information referred to in section 44/1, including those included in the data banks referred to in section 44/2, relating to administrative police missions, are processed under the authority of the Minister of the Interior.
Without prejudice to the competence of the judicial authorities, the personal data and information referred to in section 44/1, including those included in the data banks referred to in section 44/2, relating to judicial police missions, are processed under the authority of the Minister of Justice.
§ 2. The Ministers of the Interior and Justice, each within the framework of their competence, determine by directives the necessary measures to ensure the management and security of which, in particular, aspects relating to the reliability, confidentiality, availability, traceability and integrity of personal data and information processed in the data banks referred to in Article 44/2.
The heads of bodies for the local police and the directors for the federal police are the guarantors of the proper execution of these directives.
§ 3. The Ministers of the Interior and Justice, each within the framework of their competence, determine by directives the appropriate, relevant and undue measures relating to the interconnection of the data banks referred to in section 44/2 between them or with other data banks to which the police services have legal access in the course of the exercise of their administrative police and judicial police missions. ".
Art. 11. In section 1rebis, inserted by section 4, is inserted a sub-section 3 entitled "Personal data interchanges recorded in B.N.G and database data banks".
Art. 12. In subsection 3, inserted by section 11, an article 44/5 is inserted as follows:
"Art. 44/5. § 1er. The personal data processed in the data banks referred to in section 44/2, paragraph 2, 1 and 2° for administrative police purposes are as follows:
1° the contact data of the representatives of the associations, voluntarily communicated by them or publicly available to enable the management of events;
2° the data relating to persons involved in the administrative police phenomena heard as, all the problems, impairing public order and requiring appropriate administrative police measures, because they are of the same nature and repetitive, that they are committed by the same persons or that they are directed to the same categories of victims or places;
3° data relating to members of a national or international group likely to infringe public order as referred to in Article 14;
4° data relating to persons who may affect persons or household and real property to be protected and data relating to persons who may be the target;
5° data on persons referred to in articles 18 to 21;
6° data on persons registered in judicial police for an offence committed in the maintenance of public order.
The data referred to in this paragraph also include data processed within the framework of international police cooperation in criminal matters.
§ 2. The list of phenomena referred to in § 1er2° and groups referred to in § 1er, 3°, is established at least annually by the Minister of the Interior on the basis of a joint proposal by the Federal Police, the Coordinating Body for Threat Analysis and Intelligence and Security Services.
§ 3. The personal data processed in the data banks referred to in section 44/2, paragraph 2, 1 and 2° for judicial police purposes are as follows:
1° data on suspects of a criminal act and convicted persons;
2° data on perpetrators and suspects of an administratively sanctioned offence and found by the police;
3° data on persons who have died suspiciously;
4° data on missing persons;
5° data relating to persons who have escaped or attempted to escape;
6° the data relating to the execution of sentences and its execution procedures;
7° data on witnesses of a criminal act;
8° data relating to persons referred to in Article 102, 1° to 3°, of the Code of Criminal Investigation;
9° data on victims of a criminal act.
§ 4. The personal data processed in the data banks referred to in Article 44/2, paragraph 2, 2°, for the purposes of judicial police are also:
1° data relating to persons who constituted a civil party or injured persons;
2° data relating to persons responsible for a criminal act.
§ 5. Data referred to in §§ 3 and 4 also include data processed in the context of international judicial and police cooperation in criminal matters.
§ 6. Where the police are aware, by themselves, by the person concerned or his lawyer, pursuant to Article 646 of the Code of Criminal Investigation or by any other means, by the fact that the data no longer meet the conditions for processing under § 1er, 3 or 4, these data are updated. "
Art. 13. In section 1rebis, inserted by article 4, is inserted a sub-section 4 entitled "The Police Information Control Board".
Art. 14. In subsection 4, inserted by section 13, an article 44/6 is inserted as follows:
"Art. 44/6. The control of the processing of information and data referred to in Article 44/1, including those included in the data banks referred to in Article 44/2, is provided by the Police Information Control Board. ".
Art. 15. In section 1rebis, inserted by article 4, is inserted a sub-section 5 entitled "La B.N.G.".
Art. 16. In subsection 5, inserted by section 15, an article 44/7 is inserted as follows:
"Art. 44/7. The B.N.G. is the police data bank that contains the data referred to in section 44/5 and the information that all police services need to carry out their duties and allow:
1° identification of persons referred to in Article 44/5, §§ 1er and 3;
2° identification of persons with access to B.N.G.;
3° coordination and cross-section of personal data and police information;
4° national audit of administrative police and judicial police history;
5° assistance to the controls carried out by the police by indicating the measures to be taken either on the basis of a decision of the administrative police authorities or the competent judicial police authorities, or on the basis of the existence of an administrative police or judicial police record;
6° support for the definition and implementation of police and security policy.
With regard to the registration in the B.N.G. of the data referred to in Article 44/5, § 3, 1°, relating to a minor who has not completed 14 years, the authorization of the competent magistrate is required.
Police services shall, on their own, transmit to the NGB the data and information referred to in paragraph 1er".
Art. 17. In the same subsection 5, an article 44/8 is inserted as follows:
"Art. 44/8. By derogation from section 44/7, paragraph 3, the obligation to feed the NGB is deferred when and as long as the competent judge, 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 regularly verifies the need for the continued adjournment of the B.N.G.".
Art. 18. In the same subsection 5, an article 44/9 is inserted as follows:
"Art. 44/9. § 1er Personal data referred to in Article 44/5, § 1ertreated in the B.N.G. for administrative police purposes are archived where they are not adequate, irrelevant or excessive and in any case:
1° for personal data referred to in Article 44/5, § 1er, 1°, 3 years from the last recording;
2° for personal data referred to in Article 44/5, § 1er, 2° to 6°, 5 years from the last recording;
Data referred to in Article 44/5, § 1er, 2° to 6°, are not archived as long as:
a) there is a measure to be taken on the basis of a decision of a competent administrative or judicial authority or
(b) data relating to the data subject, processed in the B.N.G. on the basis of Article 44/5, § 3, 1°, 2° or 6°, were not archived under § 2, (a), 2°.
§ 2. The personal data referred to in Article 44/5, § 3, processed in the B.N.G. for judicial police purposes are archived where they are unsuitable, irrelevant or excessive and in any case:
(a) for persons referred to in Article 44/5, § 3, 1°, 2° and 6°:
1° a year from the registration of the fact if it is a fact qualified as a contravention;
2° 10 years if it is a deed qualified as an offence, and thirty years if it is a deed qualified as a crime, from the recording of the fact.
If a new act is committed by the same person while the time limit for archiving the previous fact or one of the previous facts is not reached, the rule of paragraph 1er is applied to each committed act and the archiving of personal data of all facts takes place when the deadlines for all facts are met.
Where a person referred to in Article 44/5, § 3, 1°, 2° and 6°, and in the conditions referred to in paragraph 1er, 2°, is the subject of a firm imprisonment, a disposition of the government or an internment, for a period of not less than 5 years, the retention period referred to in paragraph 1er, 2°, is suspended for the duration of the sentence or measure.
The data referred to in Article 44/5, § 3, are not archived as long as:
- there is a measure to be taken on the basis of a decision of a competent administrative or judicial authority or
- information or judicial instruction within the meaning of articles 28bis and 55 of the Code of Criminal Investigation is open and for which duties of investigation have been prescribed to the police and until the police have been informed by the competent magistrate of the termination of the said information or judicial instruction.
(b) for persons referred to in Article 44/5, § 3, 4°, 5 years from the time the person was found;
(c) for persons referred to in Article 44/5, § 3, 5°, 10 years from the time the person was again arrested or from the attempted escape;
(d) for persons referred to in Article 44/5, § 3, 7° to 9°, 10 years from the registration of the last criminal act of which they are witnesses or victims, provided that the data are not archived as long as:
- there is a measure to be taken on the basis of a decision of a competent administrative or judicial authority or
- information or judicial instruction within the meaning of articles 28bis and 55 of the Code of Criminal Investigation is open and for which duties of investigation have been prescribed to the police and until the police have been informed by the competent magistrate of the termination of the said information or judicial instruction.
Data relating to persons referred to in Article 44/5, § 3, 3°, cannot be archived until an investigation is opened.
Derogation from paragraph 1er, (a) to (d), the data relating to persons referred to in Article 44/5, § 3, 1° to 9°, are archived in any case five years from the registration of the last information relating to a criminal act when it is not located in time or space. ".
Art. 19. In the same subsection 5, an article 44/10 is inserted as follows:
"Art. 44/10. § 1er. Personal data and information processed in the B.N.G. for administrative police or judicial police purposes are archived for 30 years.
At the end of this period, personal data and information are erased, without prejudice to the law of 24 June 1955 relating to the archives.
§ 2. Consultation of the B.N.G. archives is limited to the following purposes:
1 the knowledge and operation of an administrative police or judicial police record in the course of a crime investigation;
2° assistance in the identification investigation, based on the fingerprints of the persons referred to in Article 44/5, § 3, 1°;
3° support for the definition and implementation of police and security policy;
4° based on a written request from the Minister of the Interior, the defence of the police services in court and the follow-up of the review proceedings involving data contained in the B.N.G.
The result of the operation of the NGB archives for the purpose referred to in paragraph 1er3° is anonymized."
Art. 20. In the same subsection 5, an article 44/11 is inserted as follows:
"Art. 44/11. § 1er. The B.N.G. is developed and managed by a branch of the Federal Police Headquarters.
This direction can be assisted for technical aspects by services dependent on other branches.
This direction is headed by a director, who is assisted by an assistant director. One is a member of the federal police and the other belongs to the local police.
The King sets out the terms of their designation.
§ 2. Police officers responsible for the management of the B.N.G. are appointed by the King after notice of the Control Board referred to in section 44/6.
An appointment, assignment or reassignment shall be granted to them only on initiative or with the consent of the competent minister and after the advice of the Supervisory Body. The terms are determined by the King.
Disciplinary proceedings with respect to these police officers for acts committed during the term of their appointment may only be brought with the agreement or order of the Minister of the Interior.
The notice of the Review Body is collected for disciplinary proceedings that are not ordered by the Minister. ".
Art. 21. In the same subsection 5, an article 44/11/1 is inserted as follows:
"Art. 44/11/1. Any member of the police services who knowingly and voluntarily retains personal data or information of interest in the execution of public action or personal data or administrative police information that may result in the taking of measures necessary for the protection of persons, public safety or public health, or knowingly and voluntarily refrain from feeding the B.N.G. in accordance with the B.N.A.
The provisions of Book Ier the Criminal Code, including Chapter VII and Article 85, are applicable to this offence.".
Art. 22. In section 1bis, inserted by section 4, a sub-section 6 entitled "Basic Data Banks".
Art. 23. In subsection 6, inserted by section 22, an article 44/11/2 is inserted as follows:
"Art. 44/11/2. § 1er. Basic data banks are the police data banks created for the benefit of the entire integrated police force, which are intended to carry out administrative police and judicial police missions by exploiting the personal data and information included therein and informing the competent authorities of the exercise of these missions.
These data banks are developed by the direction of the Federal Police Headquarters, referred to in Article 44/11, § 1erParagraph 1er.
This direction can be assisted for technical aspects by services dependent on other branches.
§ 2. The personal data and information processed in the basic data banks with the exception of those relating to the management of investigations are available and directly accessible only by the police services that have registered them or which, by their legal missions, should coordinate the data and information.
Data on administrative police missions are available for five years from the date of registration.
Data on judicial police missions are available for 15 years from the date of registration.
§ 3. After the fifteen-year period referred to in § 2, paragraph 3, personal data and information relating only to judicial police missions may be consulted:
1° for a further 15-year period, only on the basis of the record number, the information report number or the record number;
2° for a new period of thirty years, only as part of an investigation into crimes.
§ 4. By derogation from § 2, paragraph 3, and § 3, data and information relating to judicial police missions relating to non-concrete facts are available for five years from their registration.
§ 5. By derogation from § 2, paragraph 3, and § 3, the data and information processed in the basic data banks relating to the offences referred to in the Royal Decree of 1er December 1975, by which the General Regulation on the Traffic and Public Channel Police is available for five years from registration.
§ 6. The data and information processed in the basic data banks relating to the management of investigations carried out within the framework of information within the meaning of article 28bis of the Code of Criminal Investigation or judicial instruction within the meaning of article 56 of the Code of Criminal Investigation for which duties of investigation have been prescribed to the police are available for thirty years from the time the investigation was terminated by the competent judge to the police.
The competent Attorney General may, in exceptional circumstances, decide on the grounds that, at the end of this period, all or part of the data of an investigation contained in a database relating to investigations must be kept for a further period of up to 10 years.
§ 7. Without prejudice to the Act of 24 June 1955 relating to archives, personal data and information are erased, after the deadlines referred to in this section are cleared. ".
Art. 24. In section 1bis, inserted by section 4, a sub-section 7 entitled "Special Data Banks".
Art. 25. In subsection 7, inserted by section 24, an article 44/11/3 is inserted as follows:
"Art. 44/11/3. § 1er. In exceptional circumstances and for the exercise of their administrative and judicial police missions, heads of bodies for the local police, and directors for the federal police may create, for special needs, particular data banks that they are responsible for the processing.
§ 2. The creation of a particular data bank is motivated by at least one of the following particular needs:
(a) the need to classify personal data or information within the meaning of the Law of 11 December 1998 on classification and authorizations, certificates and security notices;
(b) the technical or functional impossibility of supplying B.N.G. with all or part of the personal data and information processed in these data banks;
(c) the non-relevant or excessive nature of the centralization in the B.N.G. of all or part of personal data or information, as part of the exercise of administrative police and judicial police missions.
§ 3. Prior to its creation, the processing officer shall declare the particular data bank to the control body referred to in section 44/6, which shall issue a notice within 30 days of receipt of the declaration.
In the event that the Board issues recommendations regarding the particular data bank, and where the controller fails to respond to these recommendations, the Board shall forward its analysis to the appropriate Minister and, where appropriate, to the College of Attorneys General.
§ 4. Without prejudice to the registration or archiving of data in accordance with Articles 44/2, paragraph 2, 1°, and 44/10, the special data banks shall be deleted as soon as the special needs referred to in § 1er disappear.
§ 5. The Control Board maintains a central directory of particular data banks.
In particular, mention is made of the dates of creation and deletion of these data banks, the positive or negative nature of the notice referred to in § 3, the controller, the conditions of access, and the modalities of communication of the data and information processed therein.
This central directory is accessible to the Minister of the Interior or his or her delegate, the Minister of Justice or his or her delegate, the competent supervisory authorities, the judicial authorities, the administrative police authorities and the police. "
Art. 26. In section 1bis, inserted by section 4, it is inserted a sub-section 8 entitled "Data communication and access to the B.N.G.".
Art. 27. In subsection 8, inserted by section 26, an article 44/11/4 is inserted as follows:
"Art. 44/11/4. § 1er. By "communication of data and information", it must be understood that the transmission by any means of personal data referred to in section 44/1 including those included in the data banks referred to in section 44/2.
§ 2. By "direct access", you must hear an automated link to the B.N.G. allowing access to the data contained in it.
§ 3. By "direct interrogation" means a limited direct access to all or part of the following data:
(a) the existence of data on a person under Article 44/5, § 1erParagraph 1er2° to 6°, and § 3, 1° to 9°;
(b) the police qualification of the facts for which the person is registered;
(c) the data required to obtain more information from the competent authority;
(d) data on measures to be taken for persons under item (a). ".
Art. 28. In the same subsection 8, an article 44/11/5 is inserted as follows:
"Art. 44/11/5. § 1er. Communication, direct access and direct interrogation are carried out without prejudice to articles 44/1, §§ 3 and 4, and 44/8.
§ 2. The King may determine the general terms and conditions relating to security measures and the duration of data and information that have been received or have been accessed under this subsection. ".
Art. 29. In the same subsection 8, an article 44/11/6 is inserted as follows:
"Art. 44/11/6. The transmission of judicial information referred to in sections 44/11/7, 44/11/10 and 44/11/13 is subject to the authorization of the competent judicial authority. ".
Art. 30. In the same subsection 8, an article 44/11/7 is inserted as follows:
"Art. 44/11/7. Personal data and information are provided to the competent judicial authorities or administrative police authorities to enable them to exercise their legal duties. ".
Art. 31. In the same subsection 8, an article 44/11/8 is inserted as follows:
"Art. 44/11/8. Personal data and information may also be provided to Standing Committee P and its Investigation Service, the Standing Committee R and its Investigations Service, the Monitoring Body and the Organ for the Coordination of Threat Analysis to enable them to exercise their legal duties. ".
Art. 32. In the same subsection 8, an article 44/11/9 is inserted as follows:
"Art. 44/11/9. § 1er. In accordance with the terms and conditions determined by the directives of the Ministers of the Interior and Justice, each within the framework of its competence, personal data and information may also be communicated to the following bodies and services to enable them to exercise their legal duties:
1° intelligence and security services, without prejudice to section 14 of the Act of 30 November 1998 of the Organization of Intelligence and Security Services;
2° the Financial Information Processing Unit;
3° the Aliens Office;
4° the investigation and research services of the General Customs and Access Authority.
§ 2. Following the advice of the Supervisory Body, they may also be communicated to the Belgian public authorities, public bodies or bodies or public bodies responsible by the law of the application of the criminal law or who have legal public security missions where they need it for the execution of their legal duties.
§ 3. The recurring or large-scale communication of personal data or information is the subject of a memorandum of understanding between the services, organizations, agencies or authorities receiving such data or information and the Commissioner General of the Federal Police.
This protocol covers at least security measures in relation to this communication and the duration of the retention of such data and information.
§ 4. Without prejudice to the legal provisions that are applicable to them and without the possibility that they may jeopardize the exercise of their duties, the authorities, services, organs, organizations or bodies referred to in §§ 1er and 2 provide the police with the data and information they process in their missions and that are adequate, relevant and not excessive to ensure the execution of police missions. "
The terms of this communication are specified in a memorandum of understanding approved by the Ministers concerned. ".
Art. 33. In the same subsection 8, an article 44/11/10 is inserted as follows:
"Art. 44/11/10. The King shall determine, by order deliberately in the Council of Ministers, after the advice of the Commission on the Protection of Privacy, to which bodies or persons, personal data that are necessary for the performance of tasks of general interest related to scientific research entrusted to them by or under a law, decree or order may be communicated, as well as the terms and conditions of such communication. ".
Art. 34. In the same subsection 8, an article 44/11/11 is inserted as follows:
"Art. 44/11/11. Without prejudice to article 13, § 3, of the Act of 21 March 1991 on the reform of certain economic public enterprises, the King shall, by order deliberately in the Council of Ministers after the advice of the Commission on the Protection of Privacy, determine personal data and information that may be communicated to Bpost for the administrative treatment of immediate perceptions, as well as the modalities of this communication. ".
Art. 35. In the same subsection 8, an article 44/11/12 is inserted as follows:
"Art. 44/11/12. § 1er. The King shall determine, by order deliberately in the Council of Ministers, after the advice of the Commission on the Protection of Privacy:
1° the terms and conditions of direct access to personal data and information contained in the B.N.G. for the authorities referred to in article 44/11/7 and 44/11/8 as part of the exercise of their legal missions;
2° the terms of direct interrogation of the B.N.G. for the authorities referred to in article 44/11/9, as part of the exercise of their legal missions.
§ 2. The terms and conditions of direct interrogation or direct access referred to in this section shall at least include:
(a) the need to know about it;
(b) the categories of staff members who, on the basis of the performance of their missions, have direct access to or an opportunity to directly question the NGB;
(c) automated treatments that are performed on the basis of B.N.G. data and information;
(d) the obligation to respect professional secrecy by all persons who take direct or indirect knowledge of B.N.G. data and information;
(e) security measures, including:
1° security of infrastructure and networks;
2° the obligation to journalize all transactions and to keep these logging data for a minimum of ten years;
(f) the obligation to undergo training prior to obtaining direct access or the right to direct interrogation.".
Art. 36. In the same subsection 8, an article 44/11/13 is inserted as follows:
"Art. 44/11/13. § 1er. Personal data and information may be provided to foreign police services, international judicial and police cooperation organizations and international law enforcement agencies under the conditions provided for by an international law rule linking Belgium or referred to in articles 21 and 22 of the Act of 8 December 1992 on the protection of privacy with respect to personal data processing. With regard to the police services of the Member States of the European Union and Interpol, personal data and information may also be communicated under the conditions determined by the King, after the advice of the Committee on the Protection of Privacy, by order deliberately in the Council of Ministers.
§ 2. Recurring or voluminous communication of personal data or information to a service or organization referred to in § 1er is only possible under the conditions provided for by a rule of international law binding on Belgium or, for the services and organizations of the European Union or of one of its member States and for Interpol, under the conditions determined by the King, by deliberate decree in Council of Ministers.
§ 3. If it appears that a data that has been communicated in accordance with § 1er is no longer accurate, the police inform the recipient and strive to obtain correction.
§ 4. Direct access to all or part of the B.N.G. data and information or direct interrogation of all or part of this data and information is not granted to a service or organization referred to in § 1er only in the conditions covered by a rule of international law binding Belgium.
§ 5. This section applies without prejudice to the rules applicable to judicial cooperation in criminal matters. ".
Art. 37. In the same Act, subsection 4, comprising sections 44/12 to 44/17, becomes section 1ter.
Art. 38. In article 44/17 of the same law, the words "44/7 and 44/11" are replaced by the words "44/11/1".
PART III. - Amendment of the Act of 8 December 1992 on the Protection of Privacy with regard to the processing of personal data
Art. 39. Article 1er of the Act of 8 December 1992 on the Protection of Privacy with regard to the processing of personal data, replaced by the Act of 11 December 1998, is supplemented by paragraphs 9 to 13, as follows:
"§ 9. By B.N.G, the general national data bank referred to in section 44/7 of the Police Service Act of 5 August 1992 is defined.
§ 10. By "basic databanks", the data banks referred to in article 44/11/2 of the law of 5 August 1992 on the police function.
§ 11. By "special databanks", the data banks referred to in Article 44/11/3 of the Law of 5 August 1992 on the police function are defined.
§ 12. "Data and information" means personal data and information referred to in Article 44/1 of the Police Function Act of 5 August 1992.
§ 13. by "administrative police authorities" means the authorities referred to in Article 5, paragraph 1erthe Police Service Act of 5 August 1992. ".
Art. 40. In the same Act, a Chapter VIIter is inserted entitled "Police Information Management Control Board".
Art. 41. In the same Act, an article 36ter is inserted as follows:
"Art. 36ter § 1er. A Police Information Supervisory Body for the Control of the Treatment of Information and Data referred to in section 44/1 of the Police Function Act, including those included in the data banks referred to in section 44/2, shall be established with the Privacy Commission.
§ 2. This Body is independent of the Privacy Commission in the course of its missions. He shared the secretariat with the Privacy Commission.
§ 3. The operation of the Board of Auditors is regulated by an internal regulation that is subject to the approval of the House of Representatives.
§ 4. The Review Body does not deal with requests referred to in Article 13 but may be referred to by the Privacy Commission for serious or recurring breaches as part of the processing of such requests. ".
Art. 42. In the same Act, an article 36ter/1 is inserted as follows:
"Art. 36ter/1. § 1er. The Supervisory Body is chaired by a magistrate of courts and tribunals appointed by the House of Representatives.
The Review Body is also composed of a member of the Privacy Commission, one or more members of the local police and the federal police and one or more experts.
The number of experts cannot exceed the number of members from the police services.
Members of the Review Body are appointed on the basis of their knowledge of the management of police information by the House of Representatives for a term of six years, renewable once. At the end of this term, members continue to perform their duties until the oath of office of their successor.
§ 2. The appointment of the President of the Supervisory Body shall take place after he has taken the oath prescribed by Article 2 of the Decree of 30 July 1831 in the hands of the President of the House of Representatives. The appointment of the other members of the Review Body shall take place after they have taken the same oath in the hands of the Chairman of the Review Body.
§ 3. The provisions of Article 323bis of the Judicial Code apply to the President of the Supervisory Body.
The president has equal treatment with that of a presiding judge of a court of first instance whose jurisdiction counts a population of less than two hundred and fifty thousand inhabitants, as well as increases and benefits associated with it, without such treatment being less than that enjoyed by him in his office as a judge.
§ 4. At the time of appointment, the members of the Review Body must meet the following conditions:
1° be Belgian;
2° enjoy civil and political rights;
3° irreproachable driving;
4° justifying expertise in the processing of information or data protection;
5° to hold a security clearance of the "very secret" level granted under the Act of 11 December 1998 on classification and authorizations, certificates and security notices.
§ 5. At the time of appointment, the members of the Police Services members of the Board of Control must also meet the following specific requirements:
1st count at least ten years of service seniority and be at least graded as Police Commissioner or level 1;
2° having not been the subject of a final assessment described as "insufficient" in the five years prior to the introduction of the application, nor having in the course of a heavy disciplinary sanction not erased;
3° justifying at least one year's experience in processing information or data protection.
§ 6. At the time of appointment, experts must also meet the following specific requirements:
1° justifying a five-year experience as an expert in data processing or data protection;
2° to hold a degree giving access to level 1 jobs in state administrations or having held a level 1 job in state administrations for at least five years.
§ 7. The President and the members of the Supervisory Body may be revoked by the House of Representatives when the conditions referred to in §§ 3, 4, 5 and 8 and 36ter/2 are not or more fulfilled in their head or in the event of a serious cause.
§ 8. Members may not occupy any public mandate conferred by election. They cannot exercise public or private employment or activity that could jeopardize the independence or dignity of the function. ".
Art. 43. In the same Act, an article 36ter/2 is inserted as follows:
"Art. 36ter/2. The members of the Supervisory Body shall perform their duties on a full-time basis, with the exception of the member of the Privacy Commission who may serve as a member of the Part-time Control Board."
Art. 44. In the same law, an article 36ter/3 is inserted as follows:
"Art. 36ter/3. The exercise of a function within the Control Board is incompatible with:
1° a member of the general inspection of the federal police and the local police;
2° the membership of Standing Committee P, or its Investigation Service, Standing Committee R or its Investigation Service, an Information Service or the Coordination Body for Threat Analysis. ".
Art. 45. In the same Act, an article 36ter/4 is inserted as follows:
"Art. 36ter/4. Subject to the provisions of this chapter, the status of the members of the Police Service Supervisory Body shall be defined in accordance with Article 21, § 1erthe Royal Decree of 26 March 2005 regulating the structural detachments of police and similar personnel and introducing various measures.
Funding for local police personnel is defined in accordance with Article 20 of the same Royal Decree.".
Art. 46. In the same law, an article 36ter/5 is inserted as follows:
"Art. 36ter/5. At the end of its mandate within the Board of Control, the police officers are reassigned in accordance with the provisions of the Royal Decree of 30 March 2001 on the legal position of police personnel. ".
Art. 47. In the same Act, an article 36ter/6 is inserted as follows:
"Art. 36ter/6. The member of the Police Services member of the Board of Control, a candidate for a position within the police services and recognized as fit for it, has priority over all other candidates for this function, even if they have a priority under the law.
The priority referred to in paragraph 1er is valid in the last year of the six years advocated within the Control Board.
A two-year priority period is granted under the same conditions from the beginning of the tenth year presumed within the Control Body. ".
Art. 48. In the same Act, an article 36ter/7 is inserted as follows:
"Art. 36ter/7. A general interest leave may be granted to a federal public service officer to serve as an expert in the oversight body. The King sets out the terms of this leave."
Art. 49. In the same Act, an article 36ter/8 is inserted as follows:
"Art. 36ter/8. The Supervisory Body acts as an initiative, at the request of the Privacy Commission, judicial or administrative authorities, the Minister of Justice or the Minister of the Interior or the House of Representatives.
When the Board acts as an initiative, it shall immediately inform the House of Representatives.
When the control took place within a local police force, the Control Board shall inform the mayor or the police college and shall forward its report.
When the control relates to information and data relating to the execution of judicial police missions, the related report prepared by the Supervisory Body is also transmitted to the competent public prosecutor's magistrate as appropriate."
Art. 50. In the same Act, an article 36ter/9 is inserted as follows:
"Art. 36ter/9. The Supervisory Body is particularly responsible for monitoring compliance with the rules of direct access to and direct interrogation of the B.N.G., as well as the respect by all members of the police services of the obligation, referred to in Article 44/7, paragraph 3, of the Act of 5 August 1992 on the police function, to supply this data bank. ".
Art. 51. In the same Act, an article 36ter/10 is inserted as follows:
"Art. 36ter/10. § 1er. The Control Board shall ensure, through operational investigations, that the contents of the NGB and the data and information processing procedure, which are retained, are in accordance with the rules prescribed by sections 44/1 to 44/11/13 of the Police Function Act of 5 August 1992 and their enforcement measures.
§ 2. In particular, the Control Board checks the regularity of the following processing operations within the General Data Bank and the basic data banks:
1° the evaluation of data and information;
2° the recording of data and information collected;
3° the validation of data and information by the competent bodies for this purpose;
4° the entry of data and information recorded according to the concrete or reliability of the data;
5° the deletion and archiving of data and information at the end of their retention periods.
§ 3. In particular, the Control Board shall verify the effectiveness of the following functions and treatment operations, as prescribed by the competent police authorities:
1° the relationship between data categories and information recorded at the time of their entry;
2° the receipt of data and information by the authorities and services legally authorized to consult them;
3° the communication of data and information to legally authorized authorities and services;
4° connection with other information processing systems;
5° the specific rules of data entry and information according to the concrete nature of the reliability of the data.
The Monitoring Body shall ensure, through operational investigations, that the content and procedure for the processing of recorded and maintained data and information in the particular data banks are in accordance with the rules prescribed by sections 44/1 to 44/5 and 44/11/3 of the Act of 5 August 1992 on the police function and their enforcement measures.
In particular, the Control Board shall ensure that the conditions for direct access to and disclosure of the information and data of the particular data banks that are specified in the central directory of the particular data banks referred to in Article 44/11/3, § 5, of the Police Function Act of 5 August 1992 are respected. ".
Art. 52. In the same Act, an article 36ter/11 is inserted as follows:
"Art. 36ter/11. The Supervisory Body has an unlimited right of access to all information and data processed by the police services under section 44/1 of the Police Function Act of 5 August 1992, including those included in the B.N.G., base data banks and special data banks.
As part of its monitoring missions, the Control Board may charge one or more of its members to conduct on-site investigations. To this end, members of the Control Board have an unlimited right of access to premises in which and during the time when the information and data referred to in paragraph 1er are processed."
Art. 53. In the same Act, an article 36ter/12 is inserted as follows:
"Art. 36ter/12. § 1er. The Board shall, at the address of the competent authority, issue, within two weeks of receipt of the application, a detailed notice on the designation, promotion, appointment or transfer of officers of the police services responsible for the management of the B.N.G.
§ 2. The Supervisory Body shall issue, at the address of the competent minister, within two weeks from the date of receipt of the application, a circumstantial notice of the opportunity to initiate disciplinary proceedings with respect to the head of the B.N.G. management service or the deputy of the B.N.G.."
Art. 54. In the same Act, an article 36ter/13 is inserted as follows:
"Art. 36ter/13. The Review Body shall report to the House of Representatives in the following cases:
1° annually, by a general report of activities that includes, where applicable, general conclusions and proposals, covering the period from 1er January to December 31 of the previous year. This report is transmitted to the President of the House of Representatives and to the relevant ministers on 1er no later than June;
2° each time it considers it useful or at the request of the House of Representatives, by a report of intermediary activities, which may include, where appropriate, general conclusions and proposals relating to a specific investigation file. This report is transmitted to the President of the House of Representatives and to the relevant ministers;
3° when the House of Representatives entrusted him with a mission;
4° where, at the end of a period that it considers reasonable, it finds that no action has been reserved for its conclusions, or that the measures taken are inappropriate or insufficient. This period cannot be less than sixty days. ".
Art. 55. In the same Act, an article 36ter/14 is inserted as follows:
"Art. 36ter/14. Members of the Supervisory Body who are in office at the time of entry into force of this Article may decide to remain subject to the statutory provisions applicable to members of the Supervisory Body before the latter falls within the House of Representatives until the end of their current mandate. At the end of this mandate, they fall ex officio under the application of the statutory rules of this Act.".
PART IV. - Amendment of the Code of Criminal Investigation
Art. 56. The Code of Criminal Investigation is supplemented by article 646, which reads as follows:
"Art. 646. The categories of information extracted from decisions cast as a force of action taken by a correctional court, a court of appeal or a court of appeal and that are likely to change those recorded in the general national data bank referred to in section 44/7 of the Act of 5 August 1992 on the police function, referred to below BNG, are communicated within thirty days to the police, in accordance with the terms defined by the King, by
The categories of information extracted from non-court decisions of the courts of instruction which are likely to modify those recorded in BNG are communicated within thirty days to the police, according to the terms defined by the King, by order deliberately in the Council of Ministers.
The categories of information extracted from classification decisions without action for lack of charge or absence of offence, taken by the public prosecutor who are likely to alter those recorded in BNG are communicated to the police within thirty days, in accordance with the terms defined by the King, by order deliberately in the Council of Ministers. ".
PART V. - Final provision
Art. 57. Sections 44/9, 44/11/2, § 2, paragraphs 2 and 3, 44/11/2, §§ 3 to 6, and 44/5, § 3, 9°, of the law of 5 August 1992 on the police function, as amended by this Law, come into force on the date fixed by the King and no later than two years after the coming into force of the other provisions of this Law.
Section 646 of the Code of Criminal Investigation, inserted by section 56, comes into force on the date fixed by the King and not later than three years after the other provisions of this Act come into force.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, March 18, 2014.
PHILIPPE
By the King:
Deputy Prime Minister and Minister of the Interior and Equal Opportunities,
Ms. J. MILQUET
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
House of Representatives (www.lachambre.be):
Documents: 53-3105
Full report: 28 November 2013
Senate (www.senate.be):
Documents: 5-2366
Annales of the Senate: February 6, 2014