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Law Amending The Law Of 30 June 1994 On The Protection Of Private Life Against Listens, Knowledge And Recording Communications And Private Telecommunications (1)

Original Language Title: Loi modifiant la loi du 30 juin 1994 relative à la protection de la vie privée contre les écoutes, la prise de connaissance et l'enregistrement de communications et de télécommunications privées (1)

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10 JUIN 1998. - An Act to amend the Act of 30 June 1994 on the Protection of Privacy against Listening, Knowledge and Registration of Private Communications and Telecommunications (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. An article 46bis, as follows, is included in the Criminal Code:
"Art. 46bis. § 1er. By looking for crimes and offences, the King's prosecutor can by a reasoned and written decision require the operator of a telecommunications network or the provider of a telecommunications service:
1° to identify the subscriber or the usual user of a telecommunications service;
2° to disclose the identification data relating to the telecommunications services to which a specified person is subscribed or that are usually used by a specified person.
In cases of extreme urgency, each judicial police officer may, with the oral and prior agreement of the King's Prosecutor, and by a reasoned and written decision to request such data. The judicial police officer communicates this reasoned and written decision as well as information gathered within 24 hours to the King's prosecutor and also motivates the extreme urgency.
§ 2. Each operator of a telecommunications network and each provider of a telecommunications service that is required to communicate the data referred to in paragraph 1 shall give the Crown Prosecutor or the judicial police officer the data that have been requested within a time limit to be determined by the King, on the proposal of the Minister of Justice and the Minister responsible for Telecommunications.
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.
The refusal to disclose the data is punishable by a fine of twenty-six francs to ten thousand francs. »
Art. 3. In section 47 of the same Code, as amended by the Act of 10 July 1967, the words "sections 32 and 46" are replaced by the words "sections 32, 46 and 46 bis"
Art. 4. The title of paragraph 4 of distinction II, section II, chapter VI, book I, of the same Code, as amended by the Act of 11 February 1991, is replaced by the following title:
“§4. Evidence in writing, evidence and telecommunications tracking and location. »
Art. 5. Section 88bis of the same Code, inserted by the Act of 11 February 1991 and amended by the Act of 30 June 1994, is replaced by the following provision:
"Art. 88bis. § 1er Where the investigating judge considers that there are circumstances that make the identification of telecommunications or the location of the origin or destination of telecommunications necessary for the manifestation of the truth, he may, if necessary, require the technical assistance of the operator of a telecommunications network or the provider of a telecommunications service:
1° to the identification of telecommunication call data from which or to which calls are sent or sent;
2° to the location of the origin or destination of telecommunications.
In cases referred to in paragraph 1er, for each telecommunications device whose call data are identified or where the origin or destination of the telecommunications is located, the day, time, duration and, if necessary, the place of the telecommunications is indicated and recorded in a minutes.
The investigating judge indicates the factual circumstances of the case that justify the measure in a reasoned order that he communicates to the King's Prosecutor.
It specifies the length of time during which it may apply, not exceeding two months from the date of the order, without prejudice to renewal.
In cases of flagrante delicto, the King's Prosecutor may order the measure for the offences listed in Article 90ter, §§ 2, 3 and 4. In this case, the measure must be confirmed within 24 hours by the examining magistrate.
However, the King's Attorney may order the measure if the complainant so requests, where this is essential to the establishment of an offence under section 114, § 8, of the Act of March 21, 1991 on the reform of certain economic public enterprises.
§ 2. Each operator of a teleeommunication network and each provider of a telecommunications service communicates the information that has been requested within a period of time to be determined by the King, on the proposal of the Minister of Justice and the competent minister for Telecommunications.
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 technical assistance to the requisitions referred to in this article, contests whose terms are determined by the King, on the proposal of the Minister of Justice and the competent minister for Telecommunications, shall be punished by a fine of twenty-six francs to ten thousand francs. »
Art. 6. In Article 90ter, § 2, of the same Code, inserted by the law of 30 June 1994 and amended by the law of 13 April 1995, the following amendments are made:
1° it is inserted a 4°bis written as follows:
"4°bis to articles 368 and 369 of the same Code";
2° the paragraph shall be completed as follows:
"18° to Article 10, § 1er, 2°, of the Act of 15 July 1985 relating to the use of hormone-effect substances, anti-hormonal effect, beta-adrenergic effect or stimulator effect of production in animals;
19° to Article 1er of the Royal Decree of 12 April 1974 on certain operations concerning hormone, anti-hormonal, anabolic, anti-infectious, pest control and anti-inflammatory substances, the aforementioned article for offences punishable under the Act of 24 February 1921 concerning the trafficking of poisonous, soporific, narcotic, disinfectant or antiseptic substances;
20° to articles 3 and 5 of the Royal Decree of 5 February 1990 concerning certain beta-adrenergic substances, the above-mentioned articles for offences punishable under the Act of 25 March 1964 on drugs. »
Art. 7. In Article 90quater, § 2, of the same Code, inserted by the law of 30 June 1994 and amended by the law of 13 April 1995, the following amendments are made:
1° to paragraph 1er, the words "or telecommunications service provider" are inserted between the words "the operator of this network" and the words "is kept";
2° the second paragraph is replaced by the following paragraph:
"Every person who, from the head of his or her office, knows the measure or lends his or her assistance, is obliged to keep the secret. Any breach of secrecy is punishable under section 458 of the Criminal Code. »
3° the paragraph is supplemented by the following paragraph:
"Every person who refuses to lend his technical assistance to the requisitions referred to in this article, contests whose terms are determined by the King, on the proposal of the Minister of Justice and the competent minister for Telecommunications, shall be punished by a fine of twenty-six francs to ten thousand francs. "
Art. 8. In section 90sexies, paragraph 1 of the same Code, inserted by the Act of 30 June 1994, the words "of their transcription and possible translation" are replaced by the words "of the transcript of the communications and telecommunications deemed relevant to the instruction by the judicial police officer committed, of their possible translation and of the indication of the subjects addressed and of the identification data of the means of telecommunications from which or to which it was concerned.
Art. 9. Section 90sexies, paragraph 2, of the same Code, is replaced as follows:
"Without prejudice to the selection by the judicial police officer referred to in the preceding paragraph, the judge appreciates what, among all information, communications or telecommunications collected, are relevant to the investigation. To the extent that this information, communications or telecommunications has not been transcribed or translated in accordance with paragraph 1, they will be transcribed and translated as an additional document. The judge in fact draws minutes. »
Art. 10. Section 90ssepties of the same Code, inserted by the Act of 30 June 1994, is replaced by the following provision:
"Art. 90s. The commmications or telecommunications collected through the measures taken under articles 90ter, 90quater and 90quinquies are registered. The purpose of the measure and the days and hours to which it was performed are recorded at the beginning and end of each recording related to it.
With the exception of the transcription of the recording of the relevant communications and telecommunications with possible translation and the indication of the topics discussed and the identification of the means of telecommunications from which or to which it was called with respect to the communications and telecommunications deemed not relevant, any note taken in the course of the execution of the measures referred to in the preceding paragraph by the persons committed for that purpose that is not destroyed in a record shall be taken in the performance of the measures referred to in the preceding paragraph. The judicial police officer for the enforcement of the measure shall carry out this destruction and shall mention it in a record.
Recordings accompanied by the transcript of the relevant communications and telecommunications with possible translation, the indication of the topics discussed and the identification data of the means of telecommunications from which or to which it was called with respect to communications and telecommunications estimated to be non-relevant, and copies of the records are kept in the sealed fold registry.
The clerk mentions in a special register kept daily:
1° the filing of each record, as well as the transcript of the relevant communications and telecommunications with possible translation and the indication of the topics covered and the identification data of the means of telecommunications from which or to which it was called with respect to the estimated non-relevant communications and telecommunications;
2° the filing of each copy of the minutes;
3° on the day of their deposit;
4° the name of the investigating judge who ordered or confirmed the measure and the subject matter of the instruction;
5° on the day the seals are opened and eventually reaped;
6° the date of knowledge of the registration, the transcript of the communications and estimated telecommunications relevant with possible translation and the indication of the topics discussed and the identification of the means of telecommunications from which or to which it was called with respect to the communications and telecommunications deemed not relevant, or copies of the minutes, as well as the name of the persons who have taken note of it;
7° all other events related to it.
The judge shall decide on the request of the accused, the accused, the civil party or their counsel, to consult all or all of the records and transcripts filed in the Registry that are not recorded in a record, and upon their request to transcribe additional parts of the records.
The application to the investigating judge is dealt with in accordance with Article 61quinquies. The investigating judge may also reject this application for reasons related to the protection of other rights or interests of persons.
Without prejudice to the preceding paragraphs, the judge shall decide on the request of the accused, the accused, the civil party or their counsel to consult with the parties of the recordings filed in the private communications or telecommunications registry to which the person concerned has participated and which are not transcribed and recorded in a record, and upon their request to transcribe additional parts of the records. »
Art. 11. Article 109ter E, § 2, of the Act of 21 March 1991 on the reform of certain economic public enterprises, inserted by the law of 21 December 1994 and renumbered by the law of 19 December 1997, is replaced by the following provision:
Ҥ2. The King shall, after having collected the opinion of the Commission on the Protection of Privacy, by order deliberately in the Council of Ministers, establish the technical means by which telecommunication network operators and telecommunications service providers shall permit, where appropriate jointly, the identification, location, listening, knowledge and registration of private telecommunications in the conditions provided for by articles 88bis and 90ter to 90decies of the Code of Criminal Procedure.
It also determines the measure of contribution in the costs of investment, operation and maintenance of these means, which is borne by telecommunications network operators and telecommunications service providers. »
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 10 June 1998.
ALBERT
By the King:
Minister of Justice,
T. VAN PARYS
Seal of the state seal:
Minister of Justice,
T. VAN PARYS
____
Notes
(1) Session 1996-1997.
House of Representatives.
Parliamentary documents. - 1075-96/97, No. 1: Bill, No. 2-7: Amendments, No. 8: Erratum, No. 9: Report, No. 10: Text adopted by the commission, No.bones 11 and 12: Amendments, No. 13: Articles adopted in plenary session, No. 14: Text adopted in plenary and transmitted to the Senate.
Annales parliamentarians. - Discussion and adoption. Meetings of 9, 11 and 18 December 1997.
Session 1997-1998
Senate.
Parliamentary documents. - 1-828-1997/1998, No. 1: Project transmitted by the House of Representatives, No. 2: Amendments, No. 3: Report, No. 4: Text adopted in committee, No.bones 5 and 6: Amendments, No. 7: Text amended by the Senate and referred to the House of Representatives.
Annales parliamentarians. - Discussion and adoption. Meetings of 31 March and 2 April 1998.
House of Representatives.
Parliamentary documents. - 1075-96/97, no. 15: Draft amended by the Senate, No. 16: Amendments, No. 17: Report, No. 18: Text adopted in plenary and subject to Royal Assent.
Annales parliamentarians. - Discussion and adoption. Sessions of 2 and 3 June 1998.