6 JANVIER 2003. - Act respecting specific research methods and some other investigative methods (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
CHAPTER II. - Specific methods of research in the context of information and instruction
Art. 2. In article 28bis, § 2, of the Code of Criminal Instruction the words "special research techniques" are replaced by the words "special methods of research and other methods".
Art. 3. Articles 47ter and 47quater of the same Code become articles 47duodecies and 47tredecies.
Art. 4. It is inserted in Book 1^erin chapter IV of the same Code, a Section III, comprising sections 47ter to 47undecies, as follows:
"Section III. - Specific research methods
Sub-Section 1^èer . - Definition of the concept
Art. 47ter. § 1^er. Specific research methods are observation, infiltration and use of indicators. These methods are implemented, within the framework of information or instruction, by the police services designated by the Minister of Justice, under the control of the Public Ministry and without prejudice to articles 28bis, §§ 1^er and 2, 55 and 56, § 1^er and 56bis, with a view to prosecuting the perpetrators of crimes, searching, collecting, recording and processing data and information on the basis of serious clues that punishable acts will be committed or have already been committed, whether known or not.
§ 2. The King's Prosecutor exercises permanent control over the implementation of specific research methods by the police services in his judicial district.
The King's Attorney informs the Federal Prosecutor of the specific research methods carried out in his judicial district.
When the implementation of the specific research methods extends over several judicial districts or falls within the purview of the federal prosecutor, the competent King's prosecutors and the federal prosecutor instruct each other and without delay, and take all necessary measures to ensure the smooth running of the operations.
Within each decillated judicial service, referred to in section 105 of the Act of 7 December 1998 organizing an integrated two-tiered police service, an officer is responsible for the permanent control of specific research methods in the district. This officer is appointed by the Director General of the Federal Police Judicial Police on the proposal of the Chief Justice and on the advice of the King's Prosecutor. He may be assisted in the execution of this task by one or more officers designated under the same procedure.
Sub-section 2. - General conditions for the use of specific research methods
Art. 47quater. As part of the execution of a particular research method, a police officer may not cause a suspect to commit other offences than those he intended to commit.
In the event of a breach of the preceding paragraph, the irrelevability of public action is pronounced for these facts.
Art. 47quinquies. § 1^er. Without prejudice to the provisions of § 2, it is prohibited for the police officer in charge of carrying out specific research methods to commit offences under his or her mission.
§ 2. Police officers who, as part of their mission and for the success of the mission or in order to guarantee their own safety or that of other persons involved in the operation, commit absolutely necessary offences, with the express agreement of the King's Prosecutor.
These offences may not be more serious than offences for which the methods are implemented and must be necessarily proportional to the intended objective.
The provisions of paragraph 1^er also applies to persons who have provided direct assistance or assistance to carry out this mission, as well as to persons referred to in section 47octies, § 1^erParagraph 2.
The magistrate who, in accordance with this Code, authorizes a police officer to commit offences under the execution of a particular search method, shall not be liable to any penalty.
§ 3. Police officers shall communicate to the Crown Prosecutor, in writing and prior to the execution of the specific search methods, the offences referred to in § 2, which they intend to commit within the framework.
If this advance communication could not take place, the police officers promptly inform the King's prosecutor of the offences they committed and then give written confirmation.
§ 4. The Minister of Justice and the Minister of the Interior take, on the joint proposal of the Federal Prosecutor and the Attorney General responsible for specific tasks in the areas of terrorism and great banditry, the specific measures absolutely necessary to guarantee at any time the protection of the identity and security of the police officers responsible for carrying out specific research methods in the preparation and execution of their missions. There can be no offence when facts are committed within this framework.
Subsection 3. - Observation
Art. 47sexies. § 1^er. Compliance within the meaning of this Code is the systematic observation, by a police officer, of one or more persons, of their presence or behaviour, or of specific things, places or events.
A systematic observation within the meaning of this Code is an observation of more than five consecutive days or more than five non-consecutive days over a period of one month, an observation in which technical means are used, an observation of an international character or an observation performed by specialized units of the Federal Police.
A technical means within the meaning of this code is a configuration of components that detects signals, transmits them, activates their recording and records the signals, with the exception of the technical means used to perform a measure referred to in section 90ter.
§ 2. The Crown Prosecutor may, in the context of the information, allow an observation if the necessity of the investigation requires it and if the other means of investigation do not appear to be sufficient for the manifestation of the truth.
An observation made using technical means can only be authorized when there are serious indications that offences are likely to result in a one-year primary correctional imprisonment or a heavier penalty.
§ 3. The authorization to make the observation is written and contains the following statements.
1° the serious evidence of the offence that justifies the observation and, if the observation falls within the framework of the proactive investigation defined in article 28bis, § 2, the particular indices of the elements described in the latter provision;
2 the reasons for which observation is indispensable to the manifestation of truth;
3° the name or, if not known, a description as precise as possible of the person(s) observed, as well as of the things, places or events referred to in § 1^er;
4° how the observation will be carried out, including permission to use technical means in the cases provided for in § 2, paragraph 2, and article 56bis, paragraph 2. In the latter case, the authorization of the investigating judge mentions the address or location as specific as possible of the dwelling that is the subject of the observation;
5° the period in which the observation may be performed and which cannot exceed one month from the date of the authorization;
6° the name and quality of the judicial police officer who directs the execution of the observation.
§ 4. At that time, the King's Attorney states in a separate written decision the offences that may be committed by the police in the context of the observation.
This decision is retained in the file referred to in Article 47septics, § 1^erParagraph 2.
§ 5. In the event of an emergency, the observation authorization may be granted verbally. This authorization must be confirmed as soon as possible in the form provided for in paragraph 1^er.
§ 6. The King's Prosecutor may at any time, in a reasoned manner, amend, supplement or extend his or her compliance authorization. He may at any time withdraw his authorization. It checks whether the conditions referred to in § 1^er at 3, are completed whenever the authorization is amended, completed or extended and acts in accordance with § 3, 1° to 6°.
§ 7. The King's Prosecutor shall be responsible for the enforcement of the observation authorizations granted by the examining magistrate in the course of an instruction, in accordance with section 56bis.
At that time, the King's Attorney states in a separate written decision the offences that may be committed by the police in the context of the observation ordered by the investigating judge. This decision is retained in the file referred to in Article 47septics, § 1^erParagraph 2.
Art. 47septics. § 1^er. The judicial police officer referred to in Article 47sexies, § 3, 6°, shall report in a precise, complete and consistent manner to the King's prosecutor on each phase of the execution of the observations he directs.
These confidential reports are communicated directly to the Crown Prosecutor, who keeps them in a separate and confidential file. He is the only person who has access to this file, without prejudice to the right of consultation of the examining magistrate referred to in section 56bis. The content of this file is covered by professional secrecy.
§ 2. Compliance authorization and amendment, extension or extension decisions are attached to the confidential file.
The judicial police officer referred to in Article 47sexies, § 3, 6°, shall prepare the minutes of the various phases of the execution of the observation, but shall not mention any of the elements that might jeopardize the technical means and techniques of police investigation used or the guarantee of the security and anonymity of the indicator and police officers responsible for the execution of the observation. These are only in the written report referred to in § 1^erParagraph 1^er.
It is referenced in a report to the authorization of observation and mention is made of the indications referred to in article 47sexies, § 3, 1°, 2°, 3° and 5°. The King's prosecutor confirms by written decision the existence of the observation authorization he granted.
Minutes that have been written and the decision referred to in the previous paragraph are attached to the repressive record no later than after it is terminated.
Sub-section 4. - Infiltration
Art. 47octies. § 1^er. Infiltration within the meaning of this Code is the fact, for a police officer called infiltrator, to maintain, under a fictional identity, lasting relations with one or more persons concerning whom there are serious indications that they commit or commit offences within the framework of a criminal organization referred to in Article 324bis of the Criminal Code or the crimes or offences referred to in Article 90ter, §2.
The infiltrator may, in exceptional circumstances and with the express authorization of the competent magistrate, use briefly, in the course of a specific operation, the expertise of a person outside the police service if it is absolutely essential to the success of his mission.
§ 2. The Crown Prosecutor may, in the context of the information, authorize infiltration if the necessity of the investigation requires it and if the other means of investigation do not appear to be sufficient for the manifestation of the truth.
It may authorize the police service to apply certain police investigative techniques within the legal framework of an infiltration and taking into account its purpose. The King determines by order deliberately in the Council of Ministers these techniques of police investigation, on the proposal of the Minister of Justice and on the advice of the College of Attorneys General.
If justified, it grants the authorization to take the necessary measures to guarantee the security, as well as the physical, psychological and moral integrity of the infiltrator. This authorization is retained in the confidential file referred to in Article 47novies, § 1^erParagraph 2.
§ 3. Infiltration authorization is written and contains the following:
1° the serious evidence of the offence that justifies infiltration;
2 the motives for which infiltration is indispensable to the manifestation of truth;
3° if known, the name or, if not, a description as precise as possible of the person(s) referred to in § 1^er;
4° how the infiltration will be carried out, including the authorization to briefly use the expertise of a civilian in accordance with § 1^er, paragraph 2, as well as authorization to apply police investigative techniques, in accordance with § 2, paragraph 2;
5° the period in which the infiltration can be carried out and which cannot exceed three months from the date of the authorization;
6° the name and quality of the judicial police officer who directs the execution of the infiltration.
§ 4. The King's Attorney indicates at that time in a separate written decision the offences that may be committed by the police in the context of infiltration. This decision is retained in the file referred to in article 47novies, § 1^erParagraph 2.
§ 5. In the event of an emergency, infiltration authorization may be granted verbally. This authorization must be confirmed as soon as possible in the form provided for in paragraph 1^er.
§ 6. The King's Prosecutor may at any time, in a reasoned manner, modify, supplement or extend his or her infiltration authorization. He may at any time withdraw his authorization. It checks whether the conditions referred to in § 1^er to 3 are completed each time its authorization is amended, completed or extended and acts in accordance with § 3, 1° to 6°.
§ 7. The King's Prosecutor shall be responsible for the execution of infiltration authorizations granted by the investigating judge in the course of an investigation, in accordance with section 56bis.
The King's Prosecutor shall, at that time, state in a separate written decision the offences that may be committed by the police in the context of the infiltration ordered by the investigating judge. This decision is retained in the file referred to in article 47novies, § 1^erParagraph 2.
Art. 47novies. § 1^er. The judicial police officer referred to in section 47octies, § 3, 6°, shall report in a precise, complete and consistent manner to the King's prosecutor on each phase of the execution of the infiltrations that he directs.
These confidential reports are communicated directly to the Crown Prosecutor, who keep them in a separate confidential file. He is the only person who has access to this file, without prejudice to the right of consultation of the examining magistrate referred to in section 56bis. The content of this file is covered by professional secrecy.
§ 2. Infiltration authorization and modification, extension or extension decisions are attached to the confidential file.
The judicial police officer referred to in section 47octies, § 3, 6°, shall prepare the minutes of the various phases of the execution of the infiltration but shall not mention any of the elements that might compromise the technical means and techniques of police investigation used or the guarantee of the security and anonymity of the indicator and police officers responsible for the execution of the infiltration, and of the civil rights referred to in § 1^erParagraph 2. These are only in the written report referred to in § 1^erParagraph 1^er.
It is referenced in a report to the authorization of infiltration and mention is made of the indications referred to in Article 47octies, § 3, 1°, 2°, 3° and 5°. The King's prosecutor confirms by written decision the existence of the infiltration authorization he granted.
Minutes that have been written, as well as the decision referred to in the previous paragraph, are attached to the repressive record no later than after the infiltration is terminated.
Subsection 5. - Use of indicators
Art. 47decies. § 1^er. The use of indicators within the meaning of this Code is the fact, for a police officer, of maintaining regular contact with a person, known as an indicator, who is assumed to maintain close relations with one or more persons about whom there are serious indications that they commit or commit offences and that in this regard provides the police officer with information and data, whether or not they have been requested. This police officer is called contact officer.
§ 2. Within the management that is part of the General Directorate of the Federal Police Judicial Police and is responsible for the task referred to in section 102, 5°, of the Act of 7 December 1998 organizing an integrated, two-level, structured police service, an officer is responsible for the national management of indicators within the two-level, structured integrated police service. This officer, called the National Indicators Manager, may be assisted in carrying out his task by one or more judicial police officers.
It shall ensure that the rules of this Article are complied with or are applicable under this Article.
The National Indicator Manager acts under the authority of the federal prosecutor.
§ 3. Within each deconcentrated judicial service referred to in section 105 of the Act of 7 December 1998 organizing an integrated two-tiered police service, an officer, known as the local manager of the indicators, is responsible for the management of the indicators at the level of the borough within the deconcentrated judicial service and the local police forces of the borough.
For this purpose, it shall, inter alia, exercise permanent control over the reliability of the indicators and ensure compliance with or applicable under this article and the proper performance of the duties of contact officials.
The local indicator manager acts under the authority of the King's Prosecutor.
In each local police force in which it is used by informants, an officer is designated to assist the local manager of the indicators in carrying out his task.
§ 4. The King, on the proposal of the Minister of Justice and after the advice of the College of Attorneys General and the Federal Prosecutor, specifies the rules of operation of national and local managers of indicators and contact officials, taking into account the ongoing monitoring of the reliability of indicators, the protection of the identity of indicators and the guarantee of the physical, psychological and moral integrity of contact officials.
§ 5. The local indicator manager makes a general report to the King's Prosecutor at his request, at least every three months, regarding the use of the indicators within the deconcentrated judicial service and the local police in the district.
The National Indicators Manager makes a general report to the Federal Prosecutor at his or her request, at least every three months, on the use of indicators within the two-tier structured Integrated Police Service.
§ 6. By derogation from article 28ter, § 2, last sentence, the local manager of the indicators immediately reports in writing, in detail, complete and in accordance with the truth, to the King's prosecutor, if the information of the indicators reveal serious indications of offences committed or about to be committed.
The King's Prosecutor may also, if necessary, prohibit by written decision the local manager from working on certain information provided by an indicator.
The King's Attorney keeps these confidential reports in a separate file. He is the only person who has access to this file, without prejudice to the right of consultation of the examining magistrate referred to in section 56bis. The content of this file is covered by professional secrecy.
He decides whether, depending on the importance of the information provided and taking into account the safety of the indicator, he shall prepare a report. If this report concerns an information or instruction in progress, the King's Attorney is responsible for attaching it to the repressive file.
Sub-section 6. - Control over legality
Art. 47undecies. The Crown Prosecutor who has applied in his investigation methods of observation or infiltration, and who wishes to prosecute, in all cases requires the investigating judge. As a result of this procedure, the examining magistrate reports to the board's chamber without being authorized to make the slightest instruction. It is carried out in accordance with section 127.
At least every three months, the King's Prosecutor shall forward to the Attorney General all records in which he has applied observation or infiltration methods and in which he has made the decision not to prosecute, in order to allow him to exercise control over the legality of the methods used.
The Attorney General reports on this control. The report is communicated to the College of Attorneys General who incorporates the comprehensive assessment and statistical data on these reports in its annual report referred to in Article 143bis, § 7 of the Judicial Code.
The Attorney General also publishes in his annual report, referred to in Article 346, § 2, 2°, of the same Code the overall assessment and statistical data on cases for which the Federal Prosecutor has initiated an investigation and which have resulted in a classification without further action. »
Art. 5. In the same Code, an article 56bis is inserted:
"Art. 56bis. By derogation from Article 56, § 1^er, paragraph 3, the authorizations of the investigating judge by which he or she orders specific research methods are carried out by the King's Prosecutor. It is carried out in accordance with articles 47ter to 47novia.
In addition, only the investigating judge may authorize an observation, as provided for in section 47sexies, carried out using technical means to have a view in a dwelling, where there are serious indications that the criminal acts constitute or would constitute an offence in accordance with section 90ter, §§ 2 to 4, are or would be committed within the framework of a criminal organization referred to in section 324bis of the Criminal Code.
An observation, as provided for in the preceding paragraph, an infiltration as provided for in section 47octies, or a discreet visual inspection as provided for in section 89ter, which covers premises used for professional purposes or the residence of a lawyer or a doctor, may only be authorized by the investigating judge if the lawyer or doctor is himself suspected of having committed any of the offences referred to in section 90bi, § 2
These measures may not be carried out without warning from the sticker or representative of the provincial order of physicians.
In his instruction, the examining magistrate has the right to consult at any time the confidential record concerning the execution of specific research methods, without being able to mention his content in the course of his or her instruction. It can always, motivatedly, modify, complete or extend the authorization. He can at any time withdraw the authorization. It checks whether the conditions for the particular search method are met whenever the authorization is amended, completed or extended.
The investigating judge confirms by written order the existence of the authorization of the particular search method that he granted.
Minutes written, together with the order referred to in the previous paragraph, are attached to the repressive record no later than after the particular search method is terminated. »
CHAPTER III. - Other research methods
Section 1^re- Interception of mail
Art. 6. In the same Code, an article 46ter is inserted, which reads as follows:
"Art. 46ter. § 1^er. As part of the search for crimes and deceptions, the King's Prosecutor may intercept and seize the mail entrusted to a postal operator, intended for, from or concerning a suspect, if there are serious indications that offences may result in a one-year primary correctional imprisonment or a heavier sentence.
If this measure is part of a proactive search referred to in article 28bis, § 2, the King's Prosecutor shall verify whether it is satisfied with the specific conditions referred to in the article.
If the King's Attorney does not consider it necessary to maintain the seizure, he shall promptly render the documents to the postal operator for shipment. Otherwise, it shall be carried out in accordance with the provisions of articles 35 to 39.
It is appropriate to hear by "currior" within the meaning of this article the post of letters in accordance with Article 131, 4°, of the Act of 21 March 1991 on the reform of certain economic public enterprises.
§ 2. The Crown Prosecutor may, by a written and reasoned decision, request the assistance of the postal operator to allow the measures referred to in § 1^er. The postal operator is required to lend its assistance without delay.
It specifies in its decision the duration of the measure referred to in the preceding paragraph.
Any person who, from the head of his or her office, is aware of the measure or lends his or her assistance, is required to keep the secret. Any breach of secrecy is punishable under section 458 of the Criminal Code.
Any person who refuses to lend his or her assistance to the requisitions referred to in this section shall be punished by imprisonment from eight days to one year and a fine of EUR 20 to EUR 10 thousand or only one of those penalties. »
Art. 7. In the same Code, an article 88sexies is inserted, as follows:
"Art. 88sexies. § 1^er. As part of the enforcement of the measure provided for in Article 46ter, only the investigating judge is entitled to open the intercepted and seized mail and to know its content.
In cases of flagrante delicto, the King's Attorney may also exercise this jurisdiction.
This measure may only cover the mail of a lawyer or a doctor if the lawyer is himself suspected of having committed one of the offences referred to in Article 46ter, § 1^erParagraph 1^er. This measure may not be implemented without warning from the sticker or representative of the provincial order of physicians.
§ 2. If the investigating judge does not consider it necessary to maintain the seizure, he shall promptly return the documents to the postal operator for shipment. Otherwise, it shall be carried out in accordance with the provisions of articles 87 to 90. »
Section 2. - Discreet visual controls
Art. 8. In the same Code, an article 89ter is inserted, which reads as follows:
"Art. 89ter. § 1^er. The investigating judge may, by a written and reasoned order, communicate to the Crown Prosecutor, authorize the police to enter a private place, without the knowledge of the owner or his rightful person, or the occupant, or without the consent of them, if there are serious clues that the punishable acts constitute or would constitute an offence referred to in article 90ter, § 2 to 4,
In the event of an emergency, authorization may be given verbally. Authorization must be motivated and confirmed in writing as soon as possible.
If the authorization referred to in paragraph 1^er is granted as part of the application of specific research methods pursuant to sections 47ter to 47decies or to section 56bis, the authorization and all related minutes are attached to the repressive record no later than after it has been terminated the particular research method.
§ 2. Penetration in the private place can only take place for the purposes of:
1° to inspect this place and to ensure the possible presence of things that are the subject of an offence, that have served or are intended to commit one or that have been produced by an offence, property benefits derived directly from the offence, property and values that have been substituted for them, and incomes from those benefits invested;
2° to gather evidence of the presence of the things referred to in 1°;
3° to install in the context of an observation a technical means referred to in Article 47sexies, § 1^erParagraph 3.
§ 3. The investigating judge may only order a discreet visual check for places where, on the basis of specific indications, it is assumed that there are the things referred to in the previous paragraph, 1°, that evidence may be collected or that is assumed to be used by suspected persons.
§ 4. The use of technical means for the purposes referred to in § 2 is assimilated to penetration in a private place.
Section 3. - Direct listening.
Art. 9. In Article 90ter, § 1^er the following paragraph shall be inserted between paragraphs 1^er and 2:
"In order to allow for the listening, knowledge or direct recording of private communications or telecommunications using technical means, the examining magistrate may also, without the knowledge or consent of the occupant, owner or his or her rightful persons, order penetration in a home or in a private place. »
Art. 10. In article 90ter, § 2, of the same Code, it is inserted a 21°:
"21° to the Law of 16 June 1993 on the Suppression of Serious Violations of International Humanitarian Law. »
Art. 11. Article 90quater, § 3, paragraph 1^er, of the same Code, is supplemented by the following sentence:
"The names of the judicial police officers responsible for the execution of the order referred to in Article 90ter, § 1^er2 are not mentioned in the judicial record. »
Section 4. - Delayed intervention
Art. 12. In the same Code, an article 40bis is inserted:
"Art. 40bis. The Crown Prosecutor may, in the interest of information, authorize the police to defer the seizure of alleged offenders and all matters referred to in section 35. Authorization is in writing and is motivated.
In the event of an emergency, authorization may be verbally granted. It must be confirmed in writing and motivated as soon as possible. »
Section 5. - Data collection for bank accounts and bank transactions
Art. 13. In the same Code, an article 46quater is inserted, which reads as follows:
"Art. 46quater. § 1^er. In the search for crimes and offences, the King's Prosecutor may request, if there are serious indications that offences may result in a one-year primary prison sentence or a heavier sentence, the following information:
(a) a list of bank accounts, of any kind, of which the suspect is the holder, agent or real beneficiary and, where appropriate, all relevant data;
(b) banking transactions that have been carried out during a specified period on one or more of these bank accounts, including information on any issuer or receiver account.
When the information requirements require, the King's Prosecutor may require that, for a period of up to two months, bank transactions on one or more of these suspect's bank accounts will be observed.
§ 2. The Crown Prosecutor may, by a written and reasoned decision, require the assistance of banks or credit institutions to allow the measure referred to in § 1^er. The bank or credit institution is required to lend its assistance without delay. In the application the King's prosecutor specifies the form in which the data referred to in § 1^er will be communicated.
Any person who, from the head of his or her office, is aware of the measure or lends his or her assistance is required to keep the secret. Any breach of secrecy is punishable under section 458 of the Criminal Code.
Any person who refuses to lend his or her assistance to the requisitions referred to in this section shall be punished by imprisonment from eight days to one year and a fine of EUR 20 to EUR 10 thousand or only one of those penalties. »
CHAPTER IV. - Amendments and Enforcement Provisions
Art. 14. Section 28s of the same Code is supplemented by the following paragraph:
"The preceding paragraph does not apply to the acts of instruction referred to in sections 56bis, paragraphs 2 and 89ter. »
Art. 15. Section 90decies, paragraph 3, of the same Code, is replaced as follows:
"He also reports on the application of articles 40bis, 46ter, 46quater, 47ter to 47decies, 56bis, 86bis, 86ter, 88sexies and 89ter. »
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 6 January 2003.
ALBERT
By the King:
Minister of Justice,
Mr. VERWILGHEN
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
____
Note
(1) Parliamentary documents:
House of Representatives.
Documents: 50 1688 (2001-2002):
Number 1: Bill.
Number two: Erratum.
n^bones 3-12: Amendments.
Number 13: Report.
No. 14: Text adopted by the commission.
No. 15: Text adopted in plenary and transmitted to the Senate.
See also: Full Report 17 and 20 July 2002.
Senate.
Documents: 2-1260 (2002-2003):
Number 1: Project transmitted by the Chamber.
No. 2: Amendments.
No. 3: Amendments.
Number 4: Report.
No. 5: Amendments reassigned after the approval of the report.
No. 6: Text adopted in plenary and subject to Royal Assent.
Annales du Sénat : 12 décembre 2002.