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9 DECEMBER 2004. - International Mutual Assistance in Criminal Matters Act and amending section 90ter of the Code of Criminal Investigation (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. For the purposes of this Act:
- Europol: the office created by the Convention on the basis of Article K.3 of the Treaty on the European Union establishing a European Police Office (Europol Convention);
- Eurojust: the judicial cooperation unit created by the Council decision of 28 February 2002 establishing Eurojust to strengthen the fight against serious forms of crime;
- OLAF: the office created by the decision of the European Commission of 28 April 1999 establishing the European Anti-Fraud Office (OLAF).
CHAPTER II. - General principles
International Legal Assistance in Criminal Matters
Art. 3. The Belgian judicial authorities grant the widest possible mutual legal assistance in criminal matters in accordance with this Act and the applicable rules of international law.
Art. 4. § 1^er. Requests for mutual legal assistance in criminal matters that do not fall within the framework of an international law instrument on mutual legal assistance between Belgium and the requesting State are carried out only through a mutual commitment of good cooperation.
§ 2. The execution of an application referred to in § 1^er is refused if:
1° enforcement is in such a way as to undermine the sovereignty, security, public order or other essential interests of Belgium;
2° the application concerns facts which in Belgium constitute political or related offences;
3° the procedure in which this application is registered is motivated by reasons related to the alleged race, sex, colour, ethnic or social origin, genetic characteristics, language, religion or belief, political opinions or any other opinion, belonging to a national minority, property, birth, disability, age or sexual orientation;
4° the application relates to an offence punishable by the death penalty in the requesting State, unless it can reasonably be admitted that the execution is likely to reduce the risk of a death sentence or that the application does not follow a request from the accused person or the defendant himself.
Art. 5. By derogation from Article 873, paragraph 2, of the Judicial Code, the execution in Belgium of requests for mutual legal assistance in criminal matters transmitted by a competent authority of a Member State of the European Union does not require the prior authorization of the Minister of Justice.
However, if the execution of a mutual assistance request from a foreign authority referred to in paragraph 1^er is liable to be refused on any of the grounds referred to in Article 4, § 2, paragraph 1^er, 1° or 2°, the judicial authority that received the application shall transmit the application to the Minister of Justice. If the request has been addressed to a Crown prosecutor or an investigating judge, the transmission to the Minister of Justice is through the Attorney General.
If it is purchased, the Minister of Justice shall inform the requesting authority that it may not be applied in whole or in part upon request. This information is notified to the relevant judicial authority and hinders the execution of the mutual assistance request or the return of the enforcement documents.
Art. 6. § 1^er. Requests for mutual legal assistance in criminal matters from the competent foreign authorities are carried out in accordance with Belgian law and, where appropriate, the existing instruments of international law that bind the requesting State and Belgium.
§ 2. However, if the request for mutual legal assistance specifies it and an existing international instrument binding Belgium and the requesting State provides for such an obligation, this request must be carried out in accordance with the procedural rules expressly specified by the foreign authorities, provided that these rules do not infringe on the fundamental rights or any other fundamental principle of Belgian law.
§ 3. The execution of a request for mutual legal assistance in criminal matters according to the procedural rules expressly specified by the foreign authorities is also possible, within the limits set out in § 2, in the absence of an international instrument binding Belgium and the requesting State and providing for such an obligation.
§ 4. If a request for mutual legal assistance in criminal matters cannot be carried out on legal grounds, the Belgian authority in charge of the latter shall promptly inform the competent foreign authority and shall give reasons for its decision by specifying, where appropriate, the conditions under which such execution may take place.
If a request for mutual legal assistance in criminal matters cannot be carried out within the time limits specified in the said application, the Belgian authority in charge of the request shall promptly inform the competent foreign authority by specifying the reasons for the delay and the time limit within which the execution may take place.
Art. 7. § 1^er. Requests for mutual legal assistance in criminal matters from the Belgian judicial authorities and to the competent foreign authorities are transmitted through the Federal Public Service Justice through diplomatic channels. The return of the execution parts is done by the same way.
Requests for mutual legal assistance in criminal matters from the competent foreign authorities and for the Belgian judicial authorities are transmitted through diplomatic channels. The return of the execution parts is done by the same way.
§ 2. However, if an international instrument linking the requesting State and Belgium provides, requests for mutual legal assistance in criminal matters are transmitted and the execution documents returned either directly between the Belgian judicial authorities and the competent foreign authorities to issue and execute them, or between the departments of the Justice concerned.
§ 3. A copy of any mutual assistance request transmitted or received by a Belgian judicial authority is communicated to the Federal Public Service Justice.
§ 4. When the request for mutual legal assistance in criminal matters transmitted or received by a Belgian judicial authority concerns a case of a serious public order or of a violation of essential interests of Belgium, an information report is transmitted without delay to the Minister of Justice by the Federal Prosecutor or, where an investigating judge or a Crown prosecutor is in charge of the application, through the Attorney General.
This obligation of information does not prejudice the application of Article 5.
CHAPTER III. - Joint investigation teams
Art. 8. § 1^er. The joint investigation teams referred to in this article shall be established to conduct criminal investigations under the conditions provided for in applicable international law instruments.
They are composed exclusively of members from States parties to an instrument of international law linking Belgium and providing for the creation of such teams. The joint investigation teams can only intervene in the Belgian territory or in the territory of one of the aforementioned states.
§ 2. The Federal Prosecutor, on initiative or at the request of the Crown Prosecutor or the investigating judge, may apply to the competent foreign authorities for the creation of a joint investigation team or to consent to a request from Eurojust or a competent foreign authority.
Where an investigating judge or a Crown prosecutor is concerned by the application, the Federal Prosecutor shall make its decision in accordance with the application.
The federal prosecutor's refusal to consent to a request from an investigating judge can only be based on grounds of operational capacity of the police services and in accordance with the priorities set by the criminal policy directives.
When the request for the formation of the joint investigation team from a foreign authority is likely to seriously disrupt public order or to infringe on essential interests of Belgium, the federal prosecutor may only consent to the formation of this team with the prior authorization of the Minister of Justice.
§ 3. Requests to establish a joint investigation team include the following:
1° the authority whose application emanates;
2° the object and motive of the application;
3° where applicable, the identity and nationality of the person(s) involved;
4° proposals relating to the composition of the team;
5° a summary of the facts;
6° if applicable, the charge.
§ 4. The creation of a joint investigation team referred to in §§ 1^er to 3 shall be the subject of a written agreement with the other States concerned. This agreement is signed, for Belgium, by the investigating judge, the Crown prosecutor or the federal prosecutor, as the case may be. The signature by the investigating judge or the King's Prosecutor shall take place after consultation with the Federal Prosecutor on the modalities for the establishment of the joint investigation team.
This agreement specifies the purpose of the joint investigation team, the composition of the team, the duration for which it is constituted, its place of intervention, the means to be implemented as well as the name of each person who, according to the state in whose territory the team intervenes, exercises authority over this team.
§ 5. When a joint investigation team includes Belgian agents and agents of at least one other Member State of the European Union, the Federal Prosecutor reports the creation of this team at Eurojust and Europol.
Art. 9. § 1^er. When the joint investigation team intervenes in Belgian territory, its members act in accordance with Belgian law and under the authority of the federal prosecutor, the King's prosecutor or the investigating judge, as the case may be.
§ 2. Foreign members detached from this team may themselves perform acts that fall within the jurisdiction of the judicial police within the limits set out in this article.
Without prejudice to the provisions of § 1^er, foreign members detached from this team are always accompanied, in the performance of their duties, by a Belgian official with the capacity of judicial police officer and acting under his direction.
The magistrate referred to in § 1^er may decide that foreign members detached from the team may not be present during certain information or instruction.
§ 3. In the agreement referred to in Article 8, § 4, it may be agreed that representatives of third countries, Eurojust, Europol or OLAF, participate in these investigative teams as experts.
They may be present during acts of information or instruction, with the agreement of the magistrate referred to in § 1^er. They cannot perform such acts themselves.
Art. 10. § 1^er. When the joint investigation team intervenes abroad, Belgian members detached from the latter may ask their competent authorities to take measures of investigation into Belgian territory.
The competent Belgian authorities treat this request as if it were a request made in the context of a national investigation.
§ 2. Detached Belgian members may, in accordance with Belgian law, provide the team, for the purposes of criminal investigations carried out by it and in accordance with Belgian law, with information to which they would have access in the context of a national investigation.
§ 3. The information obtained abroad in accordance with the law of the State in which the joint investigation team intervenes by a Belgian member seconded as part of its participation in the said joint investigation team may be used for the following purposes:
1° for the purpose for which the team was created;
2° to detect, investigate and prosecute other criminal offences, subject to the prior consent of the State where the information was obtained;
3° to prevent an immediate and serious danger to public security, without prejudice to the provisions of point 2° if, subsequently, a criminal investigation is opened;
4° for other purposes, as long as it was agreed by the States that created the team.
CHAPTER IV. - Status of foreign agents
on Belgian territory
Art. 11. To the extent that their presence is permitted under international law or under this Act, foreign agents who intervene in Belgian territory may carry their regulatory weapons under the same conditions as a Belgian police officer.
The use of regulatory service weapons is permitted only to guarantee their self-defence or that of others, in accordance with Belgian law.
Art. 12. During their intervention in Belgian territory, foreign agents are subject to Belgian civil and criminal liability regimes.
When the civil liability of foreign agents is incurred for damage caused on Belgian territory, the Belgian State shall bear the costs related to the repair of such damage under the same conditions as if it had been caused by a Belgian police officer.
CHAPTER V
Use of evidence collected abroad
Art. 13. The evidence cannot be used as part of a procedure conducted in Belgium:
1° collected irregularly abroad, when irregularity:
- derives, according to the law of the State in which the evidence was collected, from the violation of a formal rule prescribed to a penalty of nullity;
- the reliability of the evidence;
2° or whose use violates the right to a fair trial.
CHAPTER VI. - Amendments
Art. 14. In section 90ter of the Code of Criminal Investigation, inserted by the Act of 30 June 1994 and amended by the Act of 19 December 2003, the following amendments are made:
1° § 4 is completed as follows:
"or to commit the punishable act referred to in section 467, paragraph 1^erthe Criminal Code."
2° The article is supplemented by the following paragraphs:
Ҥ 6. A competent foreign authority may, in the course of a criminal investigation, temporarily listen, become aware of and record private telecommunications during transmission when the person covered by this measure is in Belgian territory and if the following conditions are met:
1° this measure does not involve the technical intervention of an actor located in Belgium;
2° the foreign authority concerned notified the measure to a Belgian judicial authority;
3° this possibility is provided by an instrument of international law linking Belgium and the requesting State;
4° the decision of the investigating judge referred to in § 7 has not yet been communicated to the foreign authority concerned.
The data collected under this paragraph may only be used if the competent Belgian judicial authority authorizes the measure.
§ 7. As soon as the Crown Attorney receives the notification referred to in § 6, paragraph 1^er, 2°, he immediately takes the examining magistrate.
The examining magistrate having a notification referred to in paragraph 6, paragraph 1^er, 2°, authorizes the measure in question if it is admissible under the provisions of this article.
It shall notify the foreign authority concerned of its decision within six hours of its receipt by the Belgian judicial authority.
Where an additional period is required, the examining magistrate may defer his or her decision by a maximum of eight days to the competent foreign authority. It shall inform the competent foreign authority without delay, indicating the reasons for this postponement.
If the investigating judge does not authorize the measure referred to in § 6, he also informs the foreign authority that the intercepted data must be destroyed without being used."
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 9 December 2004.
ALBERT
By the King:
The Minister of Justice,
Ms. L. ONKELINX
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
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Note
(1) Documents of the House of Representatives:
51-1278 - 2003/2004:
Number 1: Bill.
No. 2 and 3: Amendments.
Number 4: Report.
No. 5: text adopted by the commission.
No. 6: Text adopted in plenary and transmitted to the Senate.
Full report: 25 November 2004.
Documents of the Senate:
3-933 - 2003/2004:
No. 1: Project not referred to by the Senate.
Annales of the Senate: December 2004.