Proposition 51K2055

Projet de loi apportant des modifications diverses au Code d'instruction criminelle et au Code judiciaire en vue d'améliorer les modes d'investigation dans la lutte contre le terrorisme et la criminalité grave et organisée.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Oct. 28, 2005

Official page

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Status

Adopted

Requirement

Simple

Subjects

civil procedure organised crime judicial inquiry fight against crime criminal procedure terrorism

Voting ¶

Voted to adopt

Vooruit PS | SP Open Vld MR

Voted to reject

Ecolo LE

Abstained from voting

CD&V N-VA FN VB

Party dissidents ¶

• David Lavaux (LE) abstained from voting.
• Éric Libert (MR) abstained from voting.
• Olivier Maingain (MR) abstained from voting.

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Discussion ¶

Dec. 20, 2005 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Minister, Ladies and Gentlemen, the Committee decided, during its meeting of 16 November 2005, to hear members of the police, justice, lawyers and representatives of the Human Rights League. The proposal of Mr. Tony Van Parys, aiming to also seek the opinion of the Supreme Council of Justice, was not taken into account. The minister indicated that the draft contained measures related to criminal policy and that it should therefore not be submitted to the Supreme Council. by

The proposal of Mr. Van Parys, seeking the opinion of the State Council on non-urgent articles, was rejected by 8 votes against 3 and 2 abstentions.

In the general discussion, all stakeholders emphasized the need to maintain the balance between the effectiveness of investigation and prosecution, on the one hand, and fundamental freedoms, on the other.

Ms. Nagy intervened in the following direction. In article 6, the project establishes a discrete visual inspection in a private place subject to the sole authorization of the prosecutor. The project thus creates a new category of private place by restricting the notion of home. Therefore, the question arises of the conformity of Article 8 of the European Convention on Human Rights. According to Ms. Nagy, it would be good to change this provision. by

The project also limits the use of the camera as a technical means in systematic observations to the sole initiative of the Prosecutor’s Office. According to the speaker, there is a problem here. In this context, it is important to maintain the necessary control of the investigative judge. It also notes that the notion of confidential file is the rule instead of having confidential items in a file. by

Authorization to be able to conduct research when working in a premises used for business or residential purposes is also problematic. We talk about doctors and lawyers, but it can also be journalists.

by Mr. Melchior Wathelet points out that the project has the advantage of wanting to frame existing practices in the interest of all. by

One element, however, comes in many articles, namely the new category of private space. This name has consequences. The main one is that investigative measures can be made without having the permission of the investigative judge. If he does not think that the prosecutor’s office necessarily only works on charge, the recourse to the judge of inquiry would nevertheless allow for a more external look at the case. Why then refrain from his intervention? Is it just a matter of time and workload at the level of the investigative judge?

by Mr. Tony Van Parys regrets that this important bill needs to be voted in parliament urgently. Indeed, on the one hand, the bill provides a response to an annulment judgment of the Arbitration Court and, on the other hand, it provides for new provisions and creates the figure of federal investigative judge.

The Accusation Chamber shall control the use of particular methods of investigation, both at the end of the information and at the end of the instruction. A new procedure is planned, allowing all parties to be heard. The speaker raises the following questions. - Can the Minister give a schematic overview of the various interventions currently being made by the court of instruction? - Can the tasks of these courts not be grouped so that they can be executed simultaneously at certain times?

The speaker also points out that the risk is real. Indeed, persons who would want to abuse the procedure could get that no file goes beyond the stage of the investigative judge. Inquiry courts will have to organize themselves ⁇ well with regard to hearings. Furthermore, they will have to remain vigilant in the prospect of transferring the files. Any transfer entails a risk of data disclosure.

The new procedure will be relatively long, given that the federal prosecutor, the civil party, the accused and, where appropriate, the judicial police officer who conducted the investigation will be heard. The bill provides for a period of 15 days for this purpose. Is this feasible in practice? This is what Mr. by Van Parys.

The bars objected that the prosecutor may consult the confidential information. This right can hardly be taken away from lawyers. The speaker raises the following questions. Wouldn’t this risk a new contest of this law before the Court of Arbitration? - Will this procedure not give rise to further dilatory incidents caused by lawyers during the processing of a concrete case before the courts of instruction? - To what extent will this new procedure result in a new labor burden for the investigation courts?

Without wanting to diminish the experience of the investigative judges, the interviewer considers that it is not easy to select six investigative judges specializing in terrorism.

In the case of terrorism, the federal prosecutor shall, in accordance with the bill under consideration, bring the dean of the Investigative Judges, who shall then appoint the Federal Investigative Judge. What happens if, at the time the facts occur, we still do not know exactly that they are linked to terrorism?

The first chairman of the Brussels Court of Appeal shall appoint specialized investigative judges. On what criteria is his choice based? When is an investigative judge considered to be specialized? What are the chances of an investigative judge being specialized? by

This task would be delegated to the Supreme Council of Justice. Who, within this Council, is responsible for making this decision?

The interviewer can hardly accept that the dean of the judges of instruction is appointed on the sole basis of his old age, without any other criterion being provided. The dean of the Brussels Investigative Judges will thus be granted a ⁇ important competence: to designate the investigative judge and, therefore, the competent investigative court and the competent court in terms of substance, jurisdiction and place. Is this procedure safe? Can another system be considered?

If it is based on the principle that there is a specialized investigation judge in each jurisdiction, can it therefore not be provided that the competent specialized investigation judge is designated according to the place where the facts occurred? The “forum-shopping” should be avoided.

by Mr. Olivier Maingain addressed two aspects he considers important.

The first concerns Article 6 in the draft. This is a problem. Indeed, one tries to grab with one hand what one must grant with the other, due to the decision of the Arbitration Court in the matter. According to the speaker, this article will inevitably be a source of legal disputes. The goal that everyone pursues is to provide the means for judicial authorities to fight against the most serious crimes, including those related to terrorism. Furthermore, the proposed means must be relevant and provide the guarantees of legal certainty, without which there will be no successful outcome of mouthed proceedings against the perpetrators of the offences.

However, defining the notion of private place as the place that is manifestly not a domicile, a dependence of a domicile within the meaning of Articles 479 and following of the Criminal Code, a premises used for professional purposes or the residence of a lawyer or a physician referred to in Article 56a, paragraph 3, does not provide legal satisfaction.

First, the case-law of the European Court of Human Rights gives a broader conception of the concept of domicile than that of the Court of Cassation. It is therefore necessary to verify the compatibility of the case-law. Furthermore, from what time, or on the basis of what fact the King’s Prosecutor has found, will you be able to share the notions of domicile and private place? In what cases will the prosecutor be able to say that a place is not manifestly a home?

Furthermore, it is also annoying that in an emergency, the decision of the Prosecutor’s Office of the King’s Prosecutor may be purely verbal, which is already delicate, and must be motivated and confirmed in writing as soon as possible. What is meant by the term “short term”? Although this concept is already used in the current law, it should be clarified.

The problem of the confidential file also causes, rightly, the apprehension of the bars. There is, in this area, a sensitive evolution in the case-law of the European Court of Human Rights. Professor Valkeneer says very clearly about this, in an article published in the "Journal of Tribunals": "The Arbitration Court therefore urges the legislator to organize a system that will entrust the role of observations and infiltrations to a judge and who, to do so, will have full access to the confidential file. This is an indispensable guarantee to ensure real surveillance, but also to protect against suspicions of provocations that, sometimes, in the absence of a complete knowledge of the course of the operation, result in an unacceptable prosecution.” He added: “It is not certain that a unilateral control is not censored by the European Court of Human Rights. The recent detention of Edwards and Lewis in the United Kingdom, in any case, leaves him to prejudice.”

This is clearly the other delicate aspect of the bill. To what extent should the defense be allowed to have access to elements of the confidential file? To what extent should the supervisory court allow this possibility to the defence? by

He does not see why this control should be stopped at the level of the Chamber of Accusations. He does not see why the main judge, who is ultimately the judge who must assess the grounds for establishing the offence and guilt, could not know the full content of the confidential file or, at least, in the case of a contest on the basis of the arguments of the defence, allow him to verify whether what is in the confidential file must remain it or not.

Furthermore, the reasons why the Prosecutor’s Office may have recourse to certain methods cannot under any circumstances be concealed in order to be able to verify whether the legal means have been used. However, it is not certain that the legal provisions in the project offer sufficient guarantees in this regard.

by Mr. Thierry Giet emphasizes that we must remain vigilant in order to maintain a balance. With regard to the effectiveness of the control, the issue of choosing the Chamber of Accusations arises. We are in fact here facing the choice of one or more independent judges and having the concern of impartiality. It must be ensured that this room can actually exercise this control. Therefore, the question arises of their workload. Within the framework of a whole series of new laws adopted in recent years, additional tasks have been assigned to these chambers of charges either under the Franchimont Act of 1998 or under the Law on Vertical Integration of Public Prosecutors. In addition, questions are raised at the level of the procedure before these chambers. It is therefore important that control can be effective.

To the question of whether the control exercised by the Chamber of Accusations does not act as a go-to, Mr. Walter Muls replies that either one accepts a control with the possibility that the rules of the procedure are used, this sometimes in an abusive way, or one does not accept that there is a control.

If each intervention, each inspection and each additional investigation act take place normally, a case must be able to be settled in a normal and simple way in order to be submitted to the judge, who must decide on the merits.

by Mr. Dylan Casaer notes that the State Council considers that the bill under consideration corresponds, in most points, to the annulment decision of the Arbitration Court. However, questions remain unanswered.

With regard to the specialized investigation judges, the member agrees with the opinion expressed by Mr. Schins, Attorney General of Ghent, during the hearing on 23 November 2005, stating that specialized investigation judges must have sufficient field experience and maturity.

With regard to indicators and indicator networks (new provisions in the bill), approximately 60 to 70 percent of the information useful for police services is obtained through indicators. It is therefore necessary to manage this aspect efficiently and correctly.

Representatives of the bars indicated during the hearings that the identity of the indicator may not be disclosed, but that more information should be provided about the circumstances under which the indicator was recruited. However, it cannot be achieved that the identity of the indicator is ⁇ killed but that the elements provided are so many that it becomes easy to find its identity.

The exhibition of mr. Marc Van Laere, of the Federal Judicial Police, during the hearings, somewhat reassured the interviewer who believes that the figures provided for the period 2001-2004, with the exception of 2003 where an increase is observed, show that particular research methods are not overly used. 490 observations were made in 2001, 453 in 2004. There was no explosion of the use of these techniques.

The speaker believes that the bill under consideration offers sufficient guarantees, stressing that this delicate balance must be subject to constant attention.

by Mr. Borginon believes that under the decision of the Arbitration Court, it is necessary to determine who will control the use of particular research methods. The bill entrusts this task to the Chamber of Accusations, which allows control to be exercised at an early stage. If this control was entrusted to the judge of the main proceedings, it would be likely that it would not be noticed until much later that certain techniques that have become usual are not admitted by the latter, which would have negative consequences for many important investigations.

This control covers two dimensions. On the one hand, it allows to avoid the omnipotence of prosecutors and investigative judges. On the other hand, it allows to examine to what extent the evidence thus obtained can lead to the concrete prosecution of a person before the judge of the substance. In the first case, the debate on gender equality is less important than in the second. However, it is difficult to put this into practice. The member asks whether a model could not be developed that would allow a limited number of lawyers meeting certain criteria to exercise specific control over the use of particular research methods.

The member is sensitive to the comments made by Mr. Tony Van Parys on the monopoly of territorial allocation and the function of dean of the investigative judges.

The interviewer subsequently makes reservations regarding the extension of particular research methods to the execution of the sentence. It is not opposed to the principle, but to the formulation used in the text. The bill provides for the possibility of applying special research techniques to persons who refrain from the execution of the sentence. According to the speaker, the project does not, however, provide for any limitations in this area.

Following all the interventions and hearings, the Minister of Justice sought to answer in a very precise way the questions raised. His intervention was structured as follows.

Exposed from the College of Prosecutors General: - the specialization of magistrates.

Exhibition by Mr. Fransen, judge of instruction: - the definition of the notion of domicile; - the control by the Chamber of Accusations.

Exhibits of the Human Rights League: - the method; - the police provocation; - the mini-instruction; - the interception of mail; - the investigation of bank accounts and transactions; - the discreet visual checks; - the use of particular methods of research in the context of the execution of the sentence; - the devices used for taking photographs; - the commission of infringements by indicators; - the judicial control by the Chamber of Accusations.

Since the Minister of Justice’s response was ⁇ sharp, I refer to pages 14 to 34 of the report.

The discussion of the articles focused mainly on the following points. Several members were concerned about the scope of Article 6 and asked whether the seat of a party, trade union or editorial office could be subject to discreet visual inspection. According to the minister, the fear of arbitrary interruptions in the secretariat of political parties and trade unions is unfounded. Indeed, the Court of Cassation has held in its case-law that the notion of domicile extends to places where confidential correspondence is kept, which is obviously the case for trade unions and political parties. In this case, the intervention of an investigative judge is required. by

The Minister’s collaborator also clarified that paragraphs 1 and 2 of the proposed provision must be read together. Paragraph 1 explicitly provides that discreet visual inspection may be applied only in the case of offences listed on the list of telephone interceptions or committed by a criminal organization. This is, therefore, the first question that the magistrate will have to consider when the police department addresses him. by

by Mr. Alfons Borginon also asked what happens when suspicious elements are discovered that have nothing to do with the infringement subject to the authorisation. The minister’s collaborator clarified that this problem arises not only for discreet visual control but also for search. Imagine a search being carried out within a criminal organization active in drug trafficking. The search warrant applies only to drugs. Police descend to the scene and find a whole stock of war weapons. Jurisprudence clearly states that this finding is not null. In practice, the investigating judge may contact the prosecutor’s office which, in accordance with Article 29 of the Criminal Investigation Code, drafts a new initial record and thus opens a new file or may request the police services to draft such a record and transmit it to the prosecutor’s office. In this case, the prosecutor may eventually supplement the request addressed to the investigation judge.

To return to the example, the same reasoning applies to discreet visual control. The initial visual inspection is not void if, at the time when it made its decision, the investigating judge had sufficient evidence to assume that it was, in the present case, an organization active in drug trafficking, even if, during the discreet visual inspection, only war weapons were discovered. by

Ms Nagy again asked the following questions. What about journalists when they keep in a room not confidential correspondence but archives? Does this site belong to sources or can special research methods be used?

The Minister of Justice responds that these are archives containing confidential files. The notion of domicile applies, in accordance with the case-law of the Court of Cassation, which ruled in a judgment of 19 February 2002 that “the right recognised by Article 8, paragraph 1, of the Convention for the safeguarding of human rights and fundamental freedoms also includes professional spaces, provided that the activities that are developed there have a private character or that a confidential correspondence is kept there and that it is only on this occasion that these professional spaces are also protected by Article 15 of the Constitution”. by

by Mr. Wathelet asks whether it would not be appropriate, for the sake of clarity, to repeat in this article the definition given by the Court of Cassation. The Minister of Justice would not see any objection if there was no difference between the case-law of the Court of Cassation and Article 8 of the European Convention on Human Rights. If, over time, the case-law of the Court of Cassation evolved in the sense of the European Convention on Human Rights, the future law would then contain a restrictive definition. It would not be appropriate to define the notion of domicile in the text under consideration since this notion also appears in other legal texts without being defined there. by

This concept is evolutionary. The Court of Cassation is seeking to get closer and closer to Article 8 of the European Convention on Human Rights. The notion of home, as protected by Article 15 of the Constitution, is expanding but a grey area remains. In addition, nothing says in what direction this interpretation will evolve. If the concept of home is defined in the text at the examination, it must be defined everywhere. Furthermore, if the Court of Cassation changed its decision, a new legislative initiative would be necessary.

As regards Article 7, Mr. Giet considers that the criterion adopted, namely the use of particular research methods in all cases where a conviction has been issued, is too broad. In accordance with the principle of proportionality, it is preferable to limit the use of special search methods to cases where persons are in flight and have been sentenced to severe sentences of at least five years of imprisonment because such persons can pose a real danger to the security of citizens.

The amendment he submitted, therefore, concerns fugitive persons when they have been convicted by default and could not be placed in pre-trial detention at the time of the judgment, when immediate arrest has not been issued or when there has been escape. Onkelinx, Minister of Justice, notes that this amendment provides for the use of special methods for two different cases. In the first case, it’s about looking for a crime or a crime in a context where the person is still presumed innocent, while in the second case it’s about looking for people who are refraining from justice.

Belgium, the Netherlands and the Grand Duchy of Luxembourg signed the Treaty of 8 June 2004 on cross-border police interventions. This treaty provides in particular for the possibility of recovering persons who have escaped a deprivation of liberty sentence.

by Mr. Maingain notes that Article 7 does not clearly state whether the implementation of particular research methods can be claimed regardless of the crime for which the person has been convicted. It should not be that the inaccuracy of the article should make us believe that any execution of punishment, regardless of the nature of the offence that justified the criminal conviction, allows for the use of particular methods of investigation.

by Mr. Wathelet shares the concerns of Mr. by Maingain. It asks about the criteria for using particular research methods. Should this be the number of years for which the person was convicted? Wouldn’t that rather be the reason why the individual was condemned that should be taken into account?

The Minister of Justice explains that the criteria will apply differently depending on the particular research method that has been chosen. by

The State Council made an observation in this regard and recalled that the requirements of predictability, proportionality and subsidiarity must also be met with regard to the application of particular research methods in the context of the execution of sentences. The government responded that it was aware of this obligation and that it "deliberately and expressly registered this possibility of applying particular research methods in article 47ter of the Code of Criminal Instruction. Therefore, all legal convictions related to the use of special methods of research, observation, infiltration and the use of indicators, during information or instruction without distinction, apply also to special methods of research used in the context of the execution of sentences.” by

by Mr. Maingain notes that, although the government responded to the remarks of the State Council in the statement of reasons, it did not, on the other hand, do so in the article itself. Indeed, if a person has been convicted and has escaped his sentence, he is not necessarily committing a new offence and does not necessarily intend to do so. The conditions of application, for example, of Article 47cties, §1 er, on infiltration cannot be met when it comes to the execution of the sentence since that article requires that, in order for it to be applied, there are serious indications that the persons concerned "commit or would 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 to 4". A person who is fleeing is not committing a crime, he has committed it. Therefore, it is necessary to clarify what infringements are concerned, otherwise the article could be used for other purposes.

by Mr. Thierry Giet explains that Article 7 includes an extension of the scope of special methods. Currently, these methods can be applied during information or instruction. If the article is voted, a third scope will be provided: the search for people who refrain from the execution of their sentence. In the latter case, either new offences are committed, in which case the current law may already apply, or those persons do not commit new offences. Even if it is important for convicted persons to purgate their sentences, do special techniques need to be applied?

If the facts committed are not of particular gravity, the answer is negative. That is why the amendment was submitted.

The other solution would be to apply the special methods only in cases where fugitive persons have been convicted for offences that could have justified the use of these methods. by

by Mr. Borginon, President, is abundant in this sense and recalls that the fact of avoiding the execution of his sentence does not constitute an offence in itself. There is therefore a qualitative difference between this case and the facts that allow, in current law, to resort to particular methods.

In consideration of this novelty, it is important to provide that the facts for which the person has been convicted are of particular gravity. It would be difficult to conceive the application of special methods in cases where the person has been convicted for a minor offence, for example, the payment of a fine.

The Minister’s collaborator explains that the adoption of Article 7 is a necessity. He cites a case that occurred a few years ago: information had been communicated by Italian justice, according to which a fugitive, a member of the mafia, would travel to Belgium to attend the baptism of his son-in-law. Since that person had fled without committing a criminal act, there was no legal basis for applying a particular method, such as observation of certain places where the person concerned would have been likely to visit. The refusal to resort to the observation caused tensions with the Italian judicial authorities, tensions that could have been avoided thanks to Article 7.

The speaker recalls, in addition, that when the Law on Special Research Methods was adopted, it was decided not to determine, in a single general article, what the principles of proportionality and subsidiarity cover, because this varies depending on the particular research methods applied. For the use of indicators, no proportionality and subsidiarity criteria were adopted. If a five-year proportionality criterion is defined in Article 7 with regard to the execution of sentences, there is a risk of situations where the police will have to refuse an indicator that wants, for example, to provide information about a person sentenced to a four-year prison sentence. This situation would, of course, go against the tasks of the police, but this is exactly what the proposed amendment risks to lead. Therefore, there should be a better criterion than that of a sentence of at least 5 years.

by Mr. Borginon, Chairman, answers that there is a difference in treatment that is not objectively justified. That is why Article 7 must be amended, otherwise a new appeal before the Arbitration Court could be brought.

by Mr. Maingain asks whether particular research methods could not be implemented since their perpetrator has been convicted for a crime referred to in Article 90ter, §§ 2 to 4. There are crimes that justify that, even after conviction, if the person abstains from the execution of the sentence, particular methods of investigation are used. This would allow, for example, to implement these methods for a terrorist in flight, but not for a thief on fire.

The Minister’s collaborator also notes that some crimes are not covered in Article 90ter, such as rape. If the convicted rapist can be localized, will the police not be able to systematically observe the place where he is hiding or ask indicators to inform about it?

by Mr. Melchior Wathelet asks whether the criterion to be considered should not rather be the recurrence or the serious index of recurrence, rather than the qualification of the infringement itself.

Ms Mari Nagy would prefer that special investigation methods could only be used in the context of the execution of penalties imposed against a person who has committed offences for the prosecution and repression of which the use of these methods is permitted. If such clarification of the article was not made, there would no longer be any limits.

by Mr. Servais Verherstraeten considers that it would be appropriate to distinguish between the use of whistleblowers, for which no penalty threshold would be required, and other techniques, such as observation and infiltration, for which stricter conditions would be required. Why not choose, rather than the degree of punishment, the nature of the crime sought as a criterion for the use of particular methods? This would allow, as provided for in the Telephone Surveillance Act, to use infiltration or observation in the case of drug-related crimes or organized crime.

The collaborator of the minister specifies that the method that would be most used in the framework of the execution of sentences would be observation and informers, not infiltration. It would not be possible to carry out, by means of technical means, an observation with view in a domicile to locate a convicted person because only the investigation judge is competent in the case and that he does not intervene in the execution of the sentences.

If the police services suspect that someone who has abstained from a sentence is in a specific place, they may ask the King's Prosecutor to issue an arrest and search warrant, but they may not implement special methods of search. It should also be emphasized that before the Law on Special Research Methods was adopted, these methods were already implemented in the absence of a legal framework.

Both the prosecutor and the police were demanding a legal framework, which was done. Police services should also be able to use this tool as part of the execution of penalties.

An amendment was submitted to clarify that special research methods may also be implemented in the context of the execution of penalties or measures depriving of liberty when the person has refrained from their execution, under the same conditions as those provided for observation, infiltration and the use of indicators.

In Article 10, Ms Nagy explains that in order to respect the principle of contradiction, it is necessary that the parties have access to information regarding the investigation technique used, the reasons that motivated the choice of this technique, etc. The parties must know why and how the investigation method is organized. It is also necessary that the substance judge may have access to this information without having to settle with the “read and approved” of the Accusation Chamber.

However, the information concerning the identity of the informant and the elements that may compromise its security will be recorded in the confidential file. The Minister of Justice recalls that the Arbitration Court did not question the principle of confidential file but simply requested that a judge can be appointed, presenting all the guarantees of impartiality to verify this file, as does the bill.

Ms Nagy responds that the Supreme Council has also raised this problem. The contradiction should remain the rule and confidentiality the exception, could not be defined positively the criterion of confidentiality of the file, as defined in Article 47septies, §2, 2° of the Code of Criminal Instruction? The problem does not seem to be fully resolved.

The Minister of Justice reiterates that the confidential file is and remains the exception. This is inscribed in article 47septies, §2 of the Code of Criminal Instruction.

by Mr. Wathelet asks for clarification as to the exact extent of the control.

The Minister of Justice responds that the description of the technical means will not be disclosed in the open file when that description could prevent that method from being used later. This information will, on the other hand, be included in the confidential file which, on the other hand, will be subject to control.

In order for an observation or infiltration technique to be authorised, six elements must be respected: - proportionality; - subsidiarity; - the identity of the person under investigation; - the period; - the scenario (infiltration) or method of execution, the technical means used, i.e. observation; - the identity of the police officer responsible for the observation or infiltration.

These first four points will be discussed in the open file. Only the last two points will appear only in the confidential file. However, it is the police officer whose question is in the last point who writes the minutes. Investigators have no interest in putting too many elements in the confidential file and not enough in the open file since everything in the confidential file can obviously not be used as evidence.

With regard to Article 13, several colleagues found that this article does not provide for any exclusion of punishment for whistleblowers. The crimes they commit are carried out in consultation with the police. The Minister’s collaborator explains that informers can actually be prosecuted. Practice shows that this does not prevent them from working with the police. If the six conditions listed above are met, there is somehow a moral commitment from the King’s Attorney that no prosecution will be brought. There is, in no case, a firm commitment, and everything depends on the circumstances.

But if the whistleblower does not respect his commitment or has gone further than what had been told to the police, he can be prosecuted. It should be noted that some whistleblowers sometimes ask themselves to also be prosecuted in order not to arouse suspicions and to be able to protect themselves.

by Mr. Muls notes that the prosecutor’s moral commitment does not rule out that the victims constitute civil parties.

by Mr. Wathelet asked what was the guideline in the preparation of the list in connection with Article 90ter. How can an indicator prove that the infringement it committed was motivated by the need to protect its status of whistleblower and that it was limited to that purpose? This seems a bit illusory. If the six conditions were met, will the King’s Prosecutor still prosecute him?

The Minister’s collaborator explains, for the list of offences referred to in article 47decies, §7, in draft, of the Code of Criminal Instruction, that the choice of offences was born from practice, on the proposal of the police services and the public prosecution. Practice shows that in some important and sensitive investigations on terrorism and organized crime, the King’s Prosecutor is often confronted with the question of whether an indicator that already collects information in a criminal environment or a specific group of perpetrators can also be authorized, under certain well-defined conditions, to participate in crimes committed in that environment or group of perpetrators.

The informant therefore has no legal cause of excuse for not taking up the function he occupies in the field of information.

President: Paul Tant, Vice-President Voorzitter: Paul Tant, undervoorzitter In accordance with Article 22, Mr. Wathelet asks whether the Accusation Chamber will also verify whether the principles of subsidiarity and proportionality have been respected in choosing the particular methods of investigation. The interviewer also asks whether the police officer who performs the mission can be heard by the Accusation Chamber.

The Minister notes that the motivation for the decision to use certain research methods is not an integral part of the confidential file but is also always included in the judicial file.

The collaborator of the Minister specifies the scope of the procedure provided for in Article 235b.

The Accusation Chamber shall first hear separately and in the absence of the parties, the Attorney General or the Federal Attorney if it is a federal investigation. It is also mandatory to hear the parties. Furthermore, it may also hear the investigation judge or the officer responsible for specific research methods.

If the Accusation Chamber wishes to hear the police officer in charge of execution, observation or infiltration or the civil, it must address a request to the investigating judge. The investigation judge shall hear the person concerned in the presence, possibly, of some or all members of the Accusation Chamber. The law on the anonymity of witnesses will apply in this case. However, this is not frequent. The speaker reminds that the name of this police officer or civil does not appear in the judicial file.

by Mr. Maingain wants to ensure that the provisions under consideration sufficiently take into account the criteria of the Arbitration Court and more specifically that the control of legality and the contradictory character are guaranteed. The Court of Arbitration has clearly stated that the principle of equality of weapons between the indictment and the defense, as well as the contradictory nature of the trial, including with regard to the procedure, constitute fundamental aspects of the right to a fair trial. The right to a contradictory criminal trial implies, for the prosecution as for the defence, the faculty to take note of the observations or evidence produced by the other party, as well as to be able to discuss them. This also implies the obligation for the prosecution authority to communicate in principle to the defence all evidence.

Does the Minister consider that the procedure provided for in Article 22 provides an adequate response to this criticism? The grounds examined by the Chamber of Accusations can no longer be invoked before the main judge, unless they are related to the assessment of evidence or are related to public order.

by Mr. Maingain believes that is too much. An element of the proposed procedure is that the Accusation Chamber may, after reading the entire file, remove parts of the file. However, it considers that the defence, which is not present at this hearing, retains the possibility to invoke all the remedies relating to the legality of the use of a particular method of investigation before the judge of the substance. by

The intervener’s point of view is based on the case-law of the European Court of Human Rights and, in particular, on the Jaspers judgment of 16 February 2000.

The Minister responds that no contradictory debate takes place within the Chamber of Accusations. The parties are summoned, but they are heard separately in order to preserve the secrecy of the confidential dossier.

The Minister’s collaborator adds that the disclosure of these confidential data constitutes a violation of professional secrecy. The public prosecutor should therefore be ⁇ cautious and reserved on this point in discussions with the defence. It specifies that this draft fully takes into account the case-law of the European Court of Human Rights and, in particular, the case Edwards and Lewis of 22 July 2003 and the case Jaspers of 16 February 2000. by

The employee then commented on the procedure before the Accusation Chamber as described in the statement of reasons.

It specifies that the decision of the Chamber of Accusations is not definitive and that the defense always has the possibility to challenge the legality of the use of particular research methods. The major difference is that the Chamber of Councils, which will then have to know the file for the settlement of the proceedings, will not have the confidential file, but that the judicial file will now contain a decision of the Chamber of Accusations relating to the preliminary control exercised by that instance. by

However, what would happen if the unlawfulness appears only at the time the case is dealt with before the judge of the substance?

The speaker first refers to the example already cited in the explanation of reasons. During the examination of his case by the judge of the substance, the defendant wanted to invoke the statements of a witness who would have witnessed a pseudo purchase. On the basis of the testimony of this witness, it could have been demonstrated that it was a provocation. The name of this witness did not appear anywhere in the file. The Chamber of Accusations had not examined this element. This was a new element. In such a case, the court may decide to forward the file to the Public Prosecutor’s Office in order to bring the case again before the Accusation Chamber.

The interviewer concludes by saying that, on the basis of new and concrete elements, the court may assign, either on its own behalf, or on request of the public prosecutor, or at the request of the defendant, the civil party or their lawyers, the Chamber of Accusations to exercise its control again. “Concrete elements” means elements that are not deprived of any credibility, that are not vague or general, but that are well defined, clear and determined. by

The defence thesis must, in other words, be plausible. The procedure laid down in Article 235ter shall apply. See also the explanation of the reasons on page 43.

by Mr. Maingain finds this comment interesting, but he ⁇ ins that these provisions excessively limit the control of the legality of the application of particular research methods by judgment courts. This question must also be able to be the subject of a comprehensive legal debate before the court of judgment.

by Mr. Wathelet asks the Minister to draw up a list of the documents that must be included in the confidential file.

The collaborator of the Minister communicates that, in the confidential file and only in it, the following pieces will be kept (the list is limited). - Authorization of observation by the Procurator of the King or the judge of instruction (Article 47septies, § 2, paragraph 1 er of the Code of Criminal Instruction). The authorization of the investigating judge is therefore also exclusively kept in the confidential file with the King’s Prosecutor. - Decisions amending, extending or extending the authorization of the King's Prosecutor or the Investigative Judge (see Article 47septies, § 2, paragraph 1 er of the Code of Criminal Investigation). - The decision of the King's Prosecutor regarding the offences that may be committed by the police services in the context of the observation (Article 47sexies, § 4, paragraph 2 of the Code of Criminal Investigation). This is also the case for the decision of the King’s Prosecutor, when it is the investigation judge who has granted the permission to observe. - The decision of the prosecutor, by which he is charged with the execution of the observation authorisations of the judge of inquiry or the decision of the judge of inquiry to modify, extend or extend the authorisation; of course, only in the case where the execution is not mentioned in the authorisation of the judge of inquiry (article 47sexies § 7, paragraph 1 er of the Code of Criminal Inquiry). Confidential reports on each stage of the execution of the observations (Article 47septies, § 1 er, paragraph 1 er of the Code of Criminal Investigation) and containing, in addition and exclusively, the elements that may compromise the police investigation techniques used or the guarantee of the safety and anonymity of the indicator and the police officers responsible for the execution of the observation. The same procedure applies, mutatis mutandis, to the confidential file relating to the infiltration (Article 47nonies).

This report covers the most important discussions of the key articles of the bill. For the rest, I invite you to consult the written report.

Thank you for your sustained attention.

Please note that the President of the Chamber, Mr. De Croo, left his place to one of his vice presidents represents information in itself. But if he left us, it was to go to welcome a beautiful Swedish woman! He knows his priorities.

First of all I would like to thank Mr. Malmendier has produced this report quite comprehensively.

Mrs. Minister, my intervention tends to put this project back in its context and to feed my reflection according to the report, but also discussions and hearings in committees. Moreover, you know better than I, since you were there, that discussions and hearings also took place in the Senate; the bars and the Association of Journalists, among others, came there to express their fears, remarks and proposals. Some were constructive, others aimed at highlighting the imperfections and problems of the text, but sometimes also its positive points; I think here of the question concerning specialized instruction judges whose positive character has been emphasized both during the hearings in the House and in the Senate.

Why this text? However, the House has already discussed for many hours these famous special research methods (MPRs) and a legislation exists, about which the CDH had already expressed its reluctance and questions. I would add that he insisted on the difficulty of legislation in this matter because it is really a matter of reaching a balance.

On the one hand, we have this security-oriented will to give the means to the prosecutors and the justice to instruct, to inform a case and to gather the elements appropriate to arrest offenders, in the context of both terrorism and organized crime. The prosecutors, the police, the ISI, the DST must therefore have elements that enable them to arrest offenders, to discover offences in preparation, to update terrorist or organised crime associations which, at present, are equipped with important technical means and advanced networks. Our judicial services must possess the weapons able to counter them. by

However, a number of other fundamental freedoms must also be respected and it is always difficult to ⁇ this balance. I know that you are ⁇ attentive to these fundamental freedoms, including respect for privacy and the right to defence. In the context of the discussion of the previous draft law, Mr. Giet had repeatedly reaffirmed the importance of these principles and individual freedoms. That is the difficulty of this text. Everyone called this balance of their wishes; when the discussion of this text began, everyone emphasized the difficulty of achieving this balance but nevertheless desired to legislate — this is a good thing — and frame all these particular research procedures. From the moment that there is a will to legislate, this legislation obviously can no longer suffer from any criticism.

Unfortunately, the first attempt was not the right one, since the Arbitration Court sanctioned the first legislation. In its judgment, the Arbitration Court highlighted all the problems of the first legislation concerning particular research methods. The Arbitration Court did not actually see problems in many matters, ⁇ with regard to observation. However, she highlighted a number of problems that I tried to define: the use of mini-instruction, the question of provocation, the presence of this independent and impartial judge throughout this procedure concerning particular research methods.

This previous legislation, which had required the support of the previous government and which had gathered the support of PS, MR and Ecolo, was condemned by the Arbitration Court. That is why we need to review the copy today.

When I re-read the various interventions of the parliamentary CDH (PSC at the time) — and I am comfortable to say it, given that I was not present in the committee during the previous legislature — I notice that he had highlighted a lot of difficulties and elements that, rightly, were also highlighted and condemned by the Court of Arbitration.

We must therefore respond to this decision of the Court of Arbitration but not in any way. We must answer this in view of the analysis it has made.

Furthermore, we must respond to it within a certain timeframe since the deadline is December 31 of this year. We had to work extremely quickly. In these subjects, since it is necessary to be able to ⁇ a balance, we do not always directly realize the text problems. It is by the force of conducting auditions, by the force of having the point of view and the arguments of people who reflect on the text, that one discovers that problems can arise on the occasion of its adoption. We had to work very quickly as this text recommended all the nuance, all the balance, all the necessary discussions. There should be an exceptional law. We had to do this in the previous legislature and we did. We must continue in this way of exceptional law by responding to the decision of the Arbitration Court. We need to find this difficult balance.

The problem is the lack of time. I will develop a number of amendments, the majority of which can be subject to consensus. In fact, I believe that many of them could get the approval of most parties in this parliament. I repeat that we have a time problem. It is a shame that we cannot reach this necessary balance between the security aspect and the respect for fundamental freedoms and the right to defence.

I would also like to emphasize that if I had to vote today on your statements, I think I would vote in favour. When in the committee questions were asked about the confidential file, the situation of lawyers, the definition of the domicile, the discreet visual checks, the technical measures and especially the photographic aspect, I could almost, every time, find myself in your answers. But I don’t feel like reading the same thing in the text, I don’t feel like it’s so accurate! by

Now, here it is about particular methods of research, it is about criminal law and, of course, the law cannot suffer from any criticism. It must be very clear. Given the interpretation that can be given to these types of texts, they cannot give rise to any hesitation. They must be clear in the first reading. Even if, at the level of discussions, hearings or the report, we may find ourselves in what you say, the problem lies in the total lack of adequacy between what has been said in the committee and the legal text that is available to us today and on which we must vote.

I will now address the text more specifically based on various elements.

The first item I would like to address is Article 90ter. At least, the examination of this project has allowed me to read more in depth Article 90ter. I realized the impressive number of elements included in this article.

It is true that it is the Parliament that has extended the list as the texts and the various provisions voted within it. I believe that Parliament should realize its self-criticism regarding this Article 90ter. We need to re-examine it, re-examine it. We cannot consider in the same way all of the offences set forth in this article. Some require specific laws, others less. This article 90ter contains an investigation of infringements. Parliamentarians must consent to the effort — Mrs. Minister, I thank you for opening this door — to draw up a new list! We must have the courage to use this article 90ter in order to better define all the offences that are present in it!

The reading of the title of the bill under consideration today specifies that these are specific research methods aimed at combating terrorism and serious and organized crime. However, it is clear that Article 90ter, mentioned many times in this bill, goes far beyond terrorism or organized crime. Parliament is responsible for this situation. We have continuously extended this list. We must re-examine this article, I repeat, and re-examine all the violations. The second point I would like to emphasize, Mr. Minister, is about provocation. The Court of Arbitration has decided on the matter. The text under consideration stipulates that, as soon as there is provocation within the meaning of the new definition specified in the draft — I consider that this definition is excellent — prosecutions related to the facts concerned by this provocation are unacceptable. However, I believe that the Court of Arbitration asks to go further and to strike inadmissibility all public action participating in the same criminal intent. This is very important! I would like to submit an amendment...

As I said to Mr. Vandenberghe, a member of the Senate Justice Committee, the whole problem of nullities is raised within the framework of what is called the “Grand Franchimont”. We will soon start working in the committee.

Your comments reassure me, but the text is not so clear. Therefore, the adoption of an amendment aimed at saying that "in the event of provocation, public action is unacceptable with regard to these facts and facts prior to the facts caused, insofar as they participate in the same criminal intent" would allow to clarify this text. This amendment is in line with what you have said. If I remember correctly, this is also in line with the case-law of the Liège Court of Appeal, which advocates the inadmissibility of all prosecutions, if the facts relate to offences committed with the same criminal intent. In my opinion, this element of "criminal intent" must really be a motor. It is true that this may be done within the framework of the “Grand Franchimont”. But in this case, why not forecast exactly the same thing here?

Mr. President, Mr. Wathelet has undoubtedly a point when he points out the problem related to the consequences of the provocation.

In particular, I would like to comment on the Minister’s response. The Minister is, of course, right when she says that colleague Vandenberghe in the Senate pointed out the regulation regarding the invalidities that will be found in the draft law-Franchimont that will be yet to come to us.

This intervention proves exactly how chaoticly we deal with that matter. We are in this moment, in this plenary session of the Chamber, discussing the draft law on the special detection methods. A number of problems arise, and the minister refers to a discussion that takes place in the Senate, but of which we have no official document yet. It already refers to the discussion in the Senate, which is underway, but which should actually follow what is being discussed here at the moment.

Moreover, in order to complete the chaos, the minister says that what Mr. Wathelet notes is not a problem, because that will be settled in the great Franchimont. Of course, this has not yet been arranged! It was approved only in the Senate. That is, of course, very important, but it is only worth what it is worth.

In this way, Mr. Speaker, colleagues, we are dealing with this matter: in absolute chaos, in absolute hurry, due to the fact that the draft was submitted to the Chamber very late, with the result referring to discussions in the Senate, which are still ongoing, by the way today. Who knows what else will come out? According to the minister, however, this is not a problem, because it will be regulated in the Franchimont law.

What is more chaotic than this way of working, and what legal uncertainty do we not create in this way? We refer to laws that have not yet been approved or even discussed in the House.

This is the custom of our Minister of Justice. In the law containing various provisions, she has succeeded in saying, concerning the mandates of the Corps Chiefs, that the announcement of the draft law will be sufficient to inform the Governor and the Corps Chiefs of the duration and renewability of the mandates. So we no longer even need a law to issue the vacancies, it is enough that the minister makes the bill known to the press. This is how this Minister of Justice, la garde des sceaux, the guardian of the rule of law, deals with this matter.

Mrs. Minister, you are referring here to discussions currently taking place in the Senate, of which there are no official documents here yet, on a law that needs to be discussed and approved in the Chamber, in order to remedy a problem that Mr. Wathelet probably correctly notes, but for which we probably did not have the necessary time to discuss it in substance. I am sorry, but that is an absolute proof of the chaos in a matter where precision in legislation is so important.

You are right: we need those tools, but then the maximum care is required. Our current way of working is very unfortunate.

Remember that this article should be applied now. One can then refer to what here in the Chamber is likely to have been approved by the majority. But one could also refer to what Mr. Vandenberghe has said in the Senate in the meantime, or to what may be approved in this Parliament within the framework of the Franchimont Act. There are as many interpretations as you want. Then there are those handy lawyers—there are many handy lawyers, of course—who would like to use all kinds of procedural incidents to say: it was the text of the law; or: it was the text of the lawFranchimont, which may still be approved, or: it was Mr. Vandenberghe who made that statement in the Senate. The Accusation Chamber and the Court of Cassation will be able to have fun!

I would like to point out that here we are resolving a problem raised by the Court of Arbitration. We had to answer before December 31. This does not mean that the general debate on nullities, an extremely arduous debate, will not reignite on the occasion of the "Grand Franchimont".

To return to this proposal, we had to respond to the Arbitration Court which annulled Article 47c of the Criminal Instruction Code, because it proposed a definition of provocation that was not the same as that existed for other provisions of the Criminal Instruction Code. The Court of Cassation asked us for a uniform definition with, therefore, a uniform consequence for provocation. We have only responded to the Arbitration Court.

In doing so, we have, in terms of sanctions related to provocation, taken back the 2003 legislator’s choice. In other words, public action will be unacceptable for criminal acts directly related to police provocation. On the other hand, the provocation shall not affect the validity of the findings made before the provocation or on the validity of the findings which have no connection with the criminal fact arising from this provocation.

In short, we take back what the legislator wanted in 2003. Should we change? This issue will be the subject of a general debate that will take us time. In any case, as part of this project, we take back the will of the 2003 legislator and we respond to the decision of the Arbitration Court, neither more nor less.

by Mr. Van Parys took on the elements that I had highlighted earlier, in particular, given the choice to legislate — which I am delighted with — the obligation of precision and of absence of latitude with regard to the various plaintiffs. It is known that prosecutors will seize this and that they will opt for the interpretation of the law that arranges them. There is also the decision of the Arbitration Court regarding the definition. This is not my opinion, and you have confirmed it yourself.

But there is also the case-law of the European Court of Human Rights according to which it is necessary to provide for the inadmissibility, not only on the facts caused, but also on the related facts. There is also the judgment of the Liège Court of Appeal which, going against the judgment of the court of first instance, takes on this criterion of the criminal intent which I think is the right criterion. It is the one who should preside over the conclusions of unacceptability or not. This means that all public action is not unacceptable — it would be disproportionate. This also means that the fact alone is not unacceptable, which would be contrary to the case-law of the European Court of Human Rights. The element that must guide all our reflections is this criminal intention.

This means that inadmissibility must be possible for all facts committed as a result of the same criminal intent. In fact, according to the new definition, they will all have been aroused by the same provocation. Of course we must comply with the decision of the Arbitration Court, but we must also comply with the European Court of Human Rights and the case-law of the Liège Court of Appeal.

The third point concerns the special measures of investigation when one is in the execution of the sentence. The discussions in the committee were successful. We had thorough and interesting exchanges on the particular investigative measures to be implemented in the particular context of the execution of the sentence, in particular when the convicted person refrains from the correct execution of the sentence. We need to redefine the debate and determine in what circumstances we are.

Once again, I agreed, but the text that was proposed at the last moment through the amendment does not seem to me to express exactly the intention of the legislator. I wanted to submit a new amendment that could be the subject of consensus because it is the faithful reflection of our discussions in committee and which stipulates that “in this context, only methods permitted by law may be used for the prosecution or investigation of the offence that resulted in the sentence to the penalty or the measure depriving of liberty in question”.

This is the argument of proportionality that we talked about in the committee. This means that, in the context of the execution of the sentence, the same particular investigation procedures can be used that could have been used for the same fact in the context of instruction or information, the investigation of the offence.

When I review the text voted as part of the amendment, I find that the text is not clear. Here, our reflection responds with a clear and precise phrase to what has been discussed in the committee: "In this context, only the methods permitted by law may be used for the prosecution or investigation of the offence that resulted in the conviction, sentence or measure of deprivation of liberty in question." This text is much clearer than the one contained in the law; it summarizes well and optimally all the discussions in committee.

I would like to point out that our text goes further than what you propose because not only will we be able to use the research methods for facts that can give rise to these methods in the context of the investigation of offences but we also require that the same principles, including the principles of subsidiarity and proportionality, be respected. Your amendment does not.

But that is of course! Any particular research method of course involves ...

If you were in my place and I in yours, I would tell you that what is of course is even better when it is written! This is what we have done as part of the Commission’s clarifications.

So, Mrs. Minister, I suppose that you will accept my amendment regarding provocation and that concerning journalists! I hope that you will also accept my amendment regarding the home!

Mrs. Minister, I agree to refuse this one if you accept all those in whom it is better to write it than to say it! Then I can agree with you!

Except when you reduce the protection of rights.

With regard to provocation, journalists, the notion of home, what to do with regard to the confidential file, the contradictory debate, in all these matters, if you accept all the amendments I submit by writing, within the framework of the law, what is better written than said, then I can agree with you!

Mr. Speaker, as part of my response, I will try to give the most precise arguments possible to the arguments I will hear from one and the other. However, Mr. Wathelet, be aware that, by many of the amendments you propose, you are reducing the protection of which a number of professionals are depositories. by

For example, for journalists, I would like to emphasize that you are proposing clarifications in the law, while the general principle of the protection of sources, in particular journalists, is provided in Article 5 of the April 2005 Act. By doing so, you are doing worse than good since you are reducing the general scope of the 2005 law. Be careful when providing clarifications.

I have not yet submitted my amendment to you. You do not know where my amendment is going. You have the faculties of Devi!

You have just mentioned the

Laurette journalists and I hear what you say to me right now about journalists and homes. Remember—and all the doctrine is consistent on the subject—that home is an evolutionary notion. The notion of home protection is expanding more and more; by fixing a definition, you go against this evolution.

We will return to the amendments: I have no problem with this. What’s great is that you know exactly what amendments I’m going to submit without having done it yet. You may have used particular search methods to know exactly their content!

In any case, I check whether, yes or not, these are the amendments proposed by some associations that have been heard in the committee.

As regards specific research methods, the amendment I have submitted is in no way contrary to the general principles relating to specific research methods which involve, of course, that they are used in a manner proportionate to the principle of subsidiarity. In addition, this is not repeated in Article 47 as recently amended. I therefore maintain that my amendment respects the procedure much better by clarifying it, in accordance with the discussions we have had in the committee.

I come to the definition of home and private place.

Obviously, this definition is important given all the consequences it entails, in particular with regard to discrete visual controls. Indeed, within the framework of the project, a discrete visual control is possible if it is not at home, and without the consent of the judge of instruction.

I would like to remind you that important elements have been balanced in the decision of the Arbitration Court. Indeed, according to the latter, the less important the guarantees are, the more we must respect the right to privacy, the rights of defence, etc.

Today, the discreet visual control decision is left, under certain circumstances, to the prosecutor’s office. In other words, when one is not within the home framework, the prosecutor may take the initiative in the matter. Therefore, the investigation judge is no longer consulted. Moreover, this can be done at any time. "Two additional possibilities" are thus left to the prosecutors since - I repeat it - the latter no longer have to seek the opinion of an investigative judge and that this control can be decided at any time. Of course, the concept of home is essential. Indeed, it is this one that can "prive" the parquet from making discreet visual checks.

Home is a moving notion. Even better, it is defined differently by the Court of Cassation and the European Court of Human Rights. by Mr. Van Parys spoke recently about lawyers who had the gift of being able to find the definition that arranges them. Depending on the situation, we will refer either to the definition of the European Court of Human Rights or the definition of the Court of Cassation.

A definition is also given by an international jurisdiction. This definition is much broader. I would be tempted to say that it must be accepted, especially since an investigative judge is not required and that this can be done at any time. This broader definition given by the European Court of Human Rights should be prioritized. Therefore, when a magistrate must decide and the case-law of the European Court of Human Rights is invoked, he cannot fail to respect it.

We therefore propose a definition that accepts the case-law of the European Court of Human Rights and that refers to a room used for business purposes or as a meeting place of an association.

With all the consequences related to the judgments of the European Court of Human Rights.

The European Court of Human Rights extends the definition of domicile but, contrary to our case-law, it does not affect the domicile any absolute protection. In other words, the European Court of Human Rights considers the notion of domicile in a broad way but admits that one can distinguish between one domicile from another and make intrusions into this notion of domicile, depending on a number of criteria.

At home, this notion is actually more restrictive, even though it is much broader than the common sense associated with the notion of home. Protection is absolute. Mr. Wathelet, therefore, be careful when you make the difference between the Court of Cassation and the European Court of Human Rights!

This concept is equally absolute in the case-law of the European Court of Human Rights as in that of the Court of Cassation.

If you consider the definition of domicile, as desired by the Court of Cassation, there is obviously no difference. The European Court of Human Rights actually goes further and admits a case-by-case analysis. However, in order to know whether, yes or not, one enters a home in view of the definition of the Court of Cassation – this difficulty has also been emphasized in the committee – discreet visual checks will need to be performed.

In the case of a professional place where there is also a private part – and this is the essential criterion developed by the Court of Cassation – it must be assimilated, as you said, to a domicile in an absolute way.

But, to realize this, you will need to do a minimum of discreet visual control. What’s weird about reasoning is that to know whether, yes or not, one can do a discrete visual control, one must make one! This is quite paradoxical! You can’t realize that you find yourself in a local both professional and private as well as practicing this way. In this sense, the judgment and the definition of the domicile of the European Court of Human Rights will always be invoked. This is why it is necessary to be clear in the text and accept the definition of the European Court of Human Rights, which specifies that it is a place used for business purposes or as a place of meetings of associations.

The protection offered by the European Court of Human Rights is ⁇ not absolute. Thus, the latter is effectively part of the principle that certain premises and professional or commercial spaces fall under the application of the right to the protection of privacy and home. However, it immediately adds that this view does not prevent these premises and spaces from being subject to more severe restrictions in respect of the rights referred to in Article 8 of the European Convention on Human Rights.

Furthermore, the European Court of Justice states that, within the framework of this definition of domicile, it is possible to distinguish between certain places and certain activities with professional and commercial vocations under specific circumstances. I would like to emphasize this. This is important when one wants to distinguish between the jurisprudence proposed by our Court of Cassation and that derived from the judgments of the European Court of Human Rights.

Let me be a little more pragmatic, I think this can help from time to time! Investigators, entering somewhere, may realize, contrary to what they initially thought, that it is a domicile, according to the definition of the Court of Cassation, and not a private place not accessible to the public, which is, therefore, outside the scope of the definition of domicile. For them, caution and vigilance are crucial! Any evidence derived from particular research methods will be cancelled if the latter do not comply with the conditions and obligations provided for by law. In other words, a method that would have been used outside the obligation to resort to an investigative judge is simply a proof that will be canceled! And I don’t have the impression that the goal of investigators is to have evidence that falls into the water!

In the practical example you just gave, investigators had to go home to see if it was a home or not. They already had to do this discreet visual control. This is where the difficulty lies! To realize that you are in a home or in a professional place, you need to do a discrete visual check! by

We will add insecurity. For the investigators too.

The investigators demand this distinction!

In order to be able to determine whether or not the notion of home applies, whether or not the professional place they are visiting has a private character, they will have to perform a discrete visual check.

Mr. Wathelet, first of all, I have not ceased to repeat that the investigators were asking to distinguish between private places inaccessible to the public those which can be considered as homes and those which cannot be.

Then, it is obvious that vigilance and caution accompany them every day! I repeat it: any method that does not comply with the conditions inscribed at the heart of the law will cause the cancellation of the evidence they need to raise their repressive file! Therefore, whenever a doubt exists, whatever it is, their interest necessarily passes through prudence, that is, by the consideration that this is a home! That is why I have constantly explained in committee the two or three examples for which the investigators consider that no doubt is possible and for which they ask permission to demonstrate proactivity and to apply an information method, without going through the judge of instruction!

I suppose you refer to the examples of the hangar and the box.

Many examples have been given in the committee. It was also quite interesting. These examples fueled the discussion.

But to take the example of the hangar, it was only entering this hangar that they saw the bed. Remember to! Therefore, this hangar may have presented a private part! And, to see if that was the case, they had to enter!

Hangars are not homes. It happens from time to time that hangars are open and that by passing ahead, you see that there is nothing inside. In this case, one can consider that it is not a home and apply an information method. Our investigators are also not, fortunately, born from the last rain!

This discreet visual control will therefore take place in advance to know whether or not one is within the framework of a home.

No to No!

It must be clear! You should be cautious, Mr. Minister.

Everyone will soon have the opportunity to intervene. I therefore ask that one does not interrupt each other continuously, and above all that one does not start to talk with one another.

Thank you for keeping the order...

The [...]

I would like to add, Mrs. Minister, that this is even frustrating, because I think this dialogue should continue. We can see how much he can still be fed by questions as fundamental, as crucial as those concerning the home.

Not the way you start this dialogue!

So, let’s go ahead with it! Convince me, Mr. Courtois, I only ask for that! by

I really ask that the prescription concerning these persons be as safe and as precise as possible! What is the only difference? In this particular case, the Prosecutor’s Office will have to ask for the permission of the investigation judge and that is what it will do. So, to be certain, Mrs. Minister, let us give this home the notion as clearly as possible! Certainly, from time to time, it is a little too wide as you say, but I prefer this to be sure that, at the slightest hesitation, the prosecutor’s office has this authorization from the judge of instruction, thus avoiding any problem.

Regarding the various proposals, the relationship between the law on the protection of sources of journalists and this new legislation, by press interpelled, I took note of your statements according to which the exceptional law of April 2005 deviated from this special law. The law that is voted is also an exceptional law, since it provides for particular methods of research in certain specific cases.

The 2005 law speaks of all measures, all measures of information or instruction!

and precisely ! All specific information measures are these particular methods of research. This is also an exceptional law. Specific measures are provided in the case of the use of these particular research methods. Fortunately, as soon as there is a particular research method, it will be this procedure that will be applied! and fortunately! In fact, the secret of sources concerns journalists and all journalists are subject to the same legislation in the matter. So, these are two exceptional laws, one governing the secret of journalists’ sources and the other, the particular methods of research. And one is after the other: this one!

I will also reply soon! I want to understand that concerns arise. I’ve said it and I’ll repeat it again, it’s a social debate and it’s normal that it can take place. However, if you incorporate it into this bill, it means that for all other methods provided in the Code of Criminal Instruction, which will not be specified in the 2005 Act or here, you will not have the source protection as understood in the 2005 Act!

Let us extend it in this case.

That is what I suggested, Mr. Wathelet!

But let’s do it before the bill is voted!

You do not need it! I said very clearly that it was superfluous, since protection is absolute under the April 2005 law. Parliamentarians wanted – and I supported them – that the protection of sources be absolute, that it covers all measures of information and instruction!

In this case, it should be included in the project.

Mr. Speaker, Article 5 of this law of April 2005 gives only a few examples such as excavations or searches, but the principle is absolute. You are forced to remind yourself of it in a special law!

Let’s introduce an amendment on the particular methods of research, then!

It cannot be done under this law for the reason I just gave. However, if the Parliament so wishes, I have no objection to raise any doubt regarding the application of the 2005 Act by saying clearly in Article 5 that it is all the information and instruction measures contained in the Code of Criminal Investigation that are concerned, rather than legislate by giving only examples as is currently the case in Article 5. Let it be very clear: I do not want to reinforce the protection of sources by indicating anything about the protection of sources under this law. On the other hand, I see no problem in reinforcing the law of April 2005 with Parliament, even if it is not necessary, removing any doubt as to the interpretation of this law.

The problem, Madame the Minister, is that we can only follow you when you make such statements and this also applies to the points I mentioned recently but that again, for the time being, there will be a doubt and that this doubt will be fed by the discussions in which we participate here. Since everyone agrees, and you even seem to agree with us, we propose an amendment that can be repealed as soon as this same text is inserted into the 2005 law. But let us not allow ourselves a period during which such discussions will be possible.

As regards the Chamber of Accusations, there was once again a request from the Arbitration Court regarding the need for an impartial and independent judge to analyze the legal nature of all these particular methods of investigation and determine whether the whole procedure has been properly observed.

Regarding the confidential dossier, I have asked you the question in the committee many times. You defined exactly what was in the confidential folder but I still have a question on the subject. Is it true, according to the Senate discussions, that the transparent file will contain a retranscription of what the confidential file contains? Is it that? I thought it was the opposite.

I will clarify it again earlier, but if there is a recording, it is taken back in the contradictory debate since this recording is one of the fundamental elements of evidence. Practically, in the confidential folder, you find the technique, tactics and human source.

In this case, there is no problem. But, in the Senate, the discussion focused on the fact that the basis remained the confidential file for certain items since the content of the confidential file was transcribed by removing the three elements you just mentioned, namely human sources, tactics and technique. This is how things happen!

I had a question in this regard, but not a question of principle: Is there no danger of an administrative overload? Wouldn’t it be easier to start from the transparent folder and simply extract from it the elements that must be included in the confidential folder? This is for the purposes of simplifying; otherwise, this total retranscription of all the elements of the confidential file in the framework of the transparent file will have to be carried out each time, omitting the elements to be kept in the confidential file.

More precisely, the principle is the transparent file, as you say, subject to contradiction; it is the principle, otherwise it has no meaning. But from this transparent file are removed the elements of the confidential file — as accepted by the Arbitration Court — that concern the technique, tactics and human resources.

On the confidential file, I have no problem; it must exist. I insist to say that this is the confidential file as defined in the committee, on which you have been questioned, which has triggered many discussions and listings. It is essential to recall, since it is not defined very positively in the law but that all the information was concordant, that the confidential file must remain the file as defined in the context of reports and discussions. It was constant, so let’s remember it!

I repeat that the bars are an important interlocutor at the level of this confidential file; in fact, it is they who will be confronted with it constantly. I think they will often be frustrated by not having access to it. You will have the impression that this confidential file contains much more than it actually does. There will be ideas about its content. It is appropriate, in my opinion, to trust at least those magistrates, those persons who will manage these confidential files; they will place only the confidential, since its contents cannot be used as evidence subsequently. Thus, the more important the content of this file will be, the more they will deprive themselves of elements that can serve their own file against the offender to judge.

The bars signed their agreement on this confidential file. In the Senate, they also agreed on its principle and the Arbitration Court had no objection to it as long as it is well defined, as is often repeated.

What has been the subject of more discussion for the bars is the contradictory aspect. by

I must admit that I understand your point of view. We are at the time of a discussion in the Chamber of Bets, not within the framework of the Rules of Procedure, on the legality of particular search methods, before the “yes” or “no” stamp of the Chamber of Bets to mark the legality or illegality of the procedure.

In this context, the Chamber may at some point respect the principle of contradiction without ever confronting. Your position is to say that there is a contradictory aspect because the Accusation Chamber can hear the civil party and the accused. For my part, I have some reluctance in this regard because there can be no confrontation between them.

by Mr. Maingain had launched a track in commission by asking why to deprive itself of this possibility. In other words, why not make a contradictory debate possible? This may not be necessary for each file, nor even desirable. The Chamber of Bets could say, under certain circumstances, that this possibility is unacceptable in the context of the case file. But in this case, we go further in that the confrontation is made impossible. I must confess that I am reassured, today, of the possibility of organizing this confrontation. Why Why ? Because the bars accepted the principle of confidential file. In doing so, they obviously accept that in case of confrontation, the latter can not refer to the content of the confidential file. I therefore see no disadvantage in holding a discussion about particular methods of research in the context of a confrontation. by

Indeed, I repeat, a debate on the confidential file cannot take place since the bars accept the very existence of the confidential file and the definition of the content of the latter as stated in the committee. In these conditions, a confrontation can therefore be useful even more so as it will in any case take place at a given moment. All discussions on specific research methods take place at the same time rather than take place subsequently within the Board Chamber or the Chamber of Applications under the Rules of Procedure.

As part of this confidential dossier, I would also like to mention the indicators. by

In the confidential file are included the elements relating to observation and infiltration. However, the data relating to the indicators will not be included in the confidential file. This was not a problem for the arbitration court. According to the latter, the “indicators” section should not be included in the confidential file.

The “indicators” have fundamentally changed. The law has been adapted. There is now a procedure aimed at securing the indicator in a way, in my opinion, somewhat “strange” since one must ask for permission to find an infringement and one will still be judged as any offender. I do not understand this system very well. It is still that there is now a procedure for indicators and that six conditions must be met. I wonder if it would not be more useful to send this file back to the Chamber of Stakes. by

The Prosecution Chamber must be aware of the observation and infiltration components, as well as the indicators components. Indeed, this has fundamentally changed: today a new procedure is inserted into our legislation, subject to a series of conditions and with the intervention of the King’s Prosecutor. I think it is important that all these elements are also analyzed by the Chamber of Accusations.

Finally, I am referring to the Court of Appeal. A number of proposals were made by the bars as part of the Senate discussions, namely not to remove the cassation appeal concerning these discussions relating to the Accusation Chamber. I am not talking about the rules of procedure, but about the time when the Chamber of Accusations decides on the legality or non-legality of particular methods of investigation. I assume that you will intervene on this subject in your response and that you will indicate to us the reason that justifies that this cassation appeal cannot be inserted.

As regards the composition of the Chamber of Accusations, it must be taken care that it is not again constituted in the same manner depending on the hat it wears. It is known that the Accusation Chamber may have to know of a file only within the "Special Methods of Investigation" section. This Chamber of Accusations could be retrieved from the file as a whole, so-called transparent file, in the case of an appeal procedure arrangement of the Chamber of Councils, for example. It might seem strange that counselors, who sit in the Chamber of Accusations, who have, by this head, had knowledge of the confidential file, about which they decided that it was legal since the procedure has been able to follow its course, would also be seized under the cover of a completely different "hat", as part of the Rules of Procedure. However, theoretically, they can only be seized from the transparent file since it is only this file that can be returned or not. These are the only issues that the parties can discuss. We would therefore have advisors who have had knowledge of the confidential file and who therefore have knowledge of more infringements than the parties who have knowledge of the dispute. This point seems to me important.

Mr. Wathelet, when you speak of offences that the Accusation Chamber has had to know, we assume that you are talking about information.

Indeed indeed . I am very pleased to see that you are paying attention.

It seems to me really important to ensure that persons who have been aware of the confidential file within the sole section “Special Research Methods” cannot also be those who will have to decide on the Rules of Procedure. These dossiers must be separable and each of the parties, within the framework of the Rules of Procedure or the matter of substance, must have at their disposal exactly the same dossier.

In conclusion, Mrs. Minister, an extremely interesting discussion was conducted in the committee; I also read all the discussions and hearings that took place in the Senate. I am, however, a little frustrated that I could not continue this discussion further, although the one we have today is interesting and lively. It is necessary to be able to let its convictions, but also its uncertainties and reluctance, as this is an important dossier that touches the fundamental question of the balance between the security component, respect for privacy and respect for the right of defence, to which, Mrs. Minister, I know you are ⁇ attached. In this type of case, you should not take any risks.

Today, I have to admit that I am not completely calm. I still have a lot of questions and I am sure I will have more.

In fact, I am frustrated that I have not been able to study this dossier in depth and understand it completely. Again this morning, arguments came to my mind and I know I will have them again as part of the discussion. I sincerely regret that the necessary balance between the “security” component and the “individual freedoms and rights of defense” component has not been sufficiently secured.

Mr. Speaker, Mrs. Minister, colleagues, Europe has a regrettable but years of experience with terrorism and terrorist attacks. In recent history, the examples are legio. Think of Great Britain, with the attacks for the sake of the Northern Irish issue, and Spain, even in the time of the Franco regime. In Germany there was the RAF, the Baader-Meinhoff group. In Italy there were the Red Brigades. In the 1980s there was the CCC in Belgium.

Each of these countries has used or modified its legislation in its own way to address the problems. In some cases, the data of the attacks itself was addressed and attempts — which is equally important — were made to remove the feed ground and the support surface that possibly, however minimal, existed. So the problem was not only remediated; it was also attempted to remove the cause.

More recently, in the 21st century, we were unfortunately faced with a completely different order of terrorism. We have gone from a national terrorism, if we can speak of it, to an international terrorism. Besides the material damage, there is, of course, the incredible, enormous, human damage that these attacks have caused, namely the suffering of the mutilated and of the relatives. We cannot and should not minimize this.

Thro ⁇ the debate, we must not lose sight of what is one of the goals of the organizations that commit the attacks. The goal they have in mind is to crack down and attack our individual freedoms. They create an anxiety psychosis — I will even use the term “phobia” — to limit individual rights. I will return to it soon. There are even those of these phobias living and there are threads from spiders.

Our liberal friends will be very grateful if I add an author they regularly quote, especially the Canadian historian Michael Ignatieff. He says: “A government must temper itself as much as possible, before moving to the lull of the majority to restrict the freedom of individuals, especially if this would be unnecessary. It’s not easy, because leaders often tend to overestimate the terrorist danger and play a role in the moral outrage of the public.”

We are talking about political leaders. I need something from the heart in that regard. I have repeated this several times in the committee. Even some democratic opposition parties commit themselves to engage in a too emotional call and in a too deep, moral outrage, to ultimately involuntarily limit individual freedoms.

Of course, there are also those who willingly and knowingly abuse the situation to restrict individual freedoms, and who further stimulate the psychosis of fear, which could exist, by constantly referring to Sodom and Gomorra, in order to limit the individual rights of the individual citizen until they absolutely cease to exist. When I hear that some prosecutors have elements to limit the rights of the defence, I have serious doubts about this.

It is enough to read an article in The Morning of this weekend to realize that it goes so far that even in the economy the fear that lives with the population is used to bring goods to the man. When the word terrorism falls, some lose all reasonability and the sense of proportion between, on the one hand, what one wants to fight and, on the other, the means that one wants to use for it. Then we potentially deprive every citizen of his individual freedom. For spirit as a left-liberal party, individual freedom and the protection of privacy are among the highest democratic values, which cannot be simply touched.

We are grateful to the Minister for the efforts she has made for the Repair-BOM Act. Spirit has not been able to cooperate with the original BOM law, as did the current minister. Thanks to the Arbitration Court, today we have the opportunity to approve a number of adjustments. Judicial control has been accompanied, on the one hand, by the Chamber of Accusation and, on the other hand, in some cases, by the investigative judge. There is the appointment of federal investigative judges. There is a distinction of crimes to which the special detection methods can be applied.

Because we believe that the protection of individual freedoms is taken into account, we will approve the improved BOM Act. However, colleagues, Mrs. Minister, we have two very important comments on the repair law. The first observation concerns the control of the application of the BOM law from a legislative and democratic point of view. It is the duty of Parliament to regularly verify once the BOM Act has entered into force, whether there is no deviation from the methods used here. I refer here to the law on money laundering, where at some point we have seen a shift from methods that can be applied from the law on money laundering to all types of crimes, or worse, to facts in which one believes that alleged crimes can be discovered. In doing so, bank accounts and funds are seized for a certain period of time and the individual citizen subject to the provisional measures, in some cases even his company or small commercial enterprise goes bankrupt. He sees the world of his life collapse, without at that moment being considered any act of persecution.

We must examine whether a control by this Parliament is not necessary.

I'm breaking a lance so that - Mr. Wathelet and Mr. Van Parys have already dealt with it - we will handle within a few weeks the draft Franchimont transmitted by the Senate. Would it not be useful that the Parliament, with regard to the prosecutors who have to work with the Code of Criminal Procedure and the various special investigation methods and various special legislations, but themselves are in a struggle that they lose sight of the fact that special investigation methods or money laundering legislation can no longer apply to a particular investigation, adopt legislation giving rise to the two Code of Criminal Procedure? In short, a Code of Criminal Procedure applicable to common law and a Code of Criminal Procedure which can define methods of investigation applicable to particular crimes. This is, in my opinion, a challenge that we should not avoid.

Second observation of spirit in this BOM law. What do we do with this law special detection methods if we find that the threat of terrorism – one of the objectives for which this law has been established is the fight against terrorism – has seriously decreased or even no longer exists. For the sake of our liberal friends, I quote the same author again. He says the following. The main weapon against an ongoing violation of individual rights and freedoms is the temporaryity of measures.

We must intend — spirit will at least do so — to review this legislation and to attach a temporary period to it at the moment we find that the threat of terrorism is disappearing or decreasing to a very serious extent. In my opinion, we cannot assume that special detection methods applied in special situations must continue to exist when the special situations are no longer concerned.

Mrs. Minister, colleagues, I conclude with a parafrase of Mahatma Gandhi addressed to those who make this kind of legislation necessary. Violence eliminates itself sooner or later, while peace is inexhaustible.

First of all, I would like to thank the rapporteur for his ⁇ comprehensive report on such a delicate subject.

In 2003, Belgium enacted a law on special research methods. The motto of the long debate that preceded this law was already “balance.” There is a balance between, on the one hand, the effectiveness of investigations and prosecutions and, on the other hand, the protection of individual freedoms, in particular privacy. All those who, at the time, voted this law were probably convinced that they had found the right balance.

It should be noted that the Arbitration Court had a different idea of the balance by making its judgment on 21 December 2004. So the bill we are discussing today tries to comply with this balance. In my opinion, it actually succeeds. by

I would like to give a few thoughts on some points of the project. First of all, as regards the repair of the law following the judgment of the Arbitration Court, I would like to welcome the introduction of the control of the Chamber of Accusations and to highlight more specifically the amendments that have been made to the original text which I think are going in the direction of strengthening the effectiveness of the control of this Chamber of Accusations.

An amendment requires the King's Prosecutor to warn the Accusation Chamber when special methods of investigation are implemented in files, otherwise, in the absence of this warning, it was very difficult for the Accusation Chamber to exercise its control on its own. I remind you that, if this control is provided at the end of the information or at the end of the instruction, it is also possible at any time. This is an additional guarantee.

This first amendment therefore concerns the principle of the warning of the Chamber of Accusations by the Public Prosecutor.

The second amendment is the one that extends the deadline for the examination of the case by the Chamber of Accusations, so it is true that it is necessary to remain very concrete and well appreciate its important tasks. By providing for thirty days in this text, this time limit seems to me more realistic than the one originally planned. Any magistrate can imagine, when a case is in information or under instruction, that there is no reason to delay its examination. The deadline exists, but if things can go faster, why not?

I therefore believe that this control of the Chamber of Accusations is a good thing, especially since it is a court of three magistrates who already have this task, in the Code of Criminal Instruction, to monitor the instructions.

I come to the second aspect of the bill. Therefore, the field policemen asked for new specialized research techniques. I do not doubt for a moment here of the good faith of these field investigators and of the need they feel, from case to case, to be able to go even further in the implementation of these particular methods of research. At the same time, this does not exempt us from elementary caution when, in response to their request, these new techniques are implemented. As part of discreet visual control, I believe that the project that is on the table meets this concern of caution. by

I would like to return for a moment to what has already been the subject of discussion in the committee but also here this morning: the debate on the notion of home. I fully agree with the words made by the Minister recently. It is essential, in order to respect individual freedoms, to consider that this notion of home must remain evolving. In so far as any definition that would be inserted in a text would only lead, in the future, to a debate, regardless of whether one could find a definition satisfying one and the other. Thus, any definition would at some point be counterproductive for all those who, today, wish to bring, in good faith without doubt, clarifications on the notion of home.

Therefore, I do not understand that, despite the explanations received, we still want to define this notion of home. Of course, it is evolving, it has been said and repeated. It is the work of the jurisprudence and I also recall that this jurisprudence is the work of independent judges and concerned with impartiality. Therefore, it is in the interest of the citizen to trust them as, on the other hand, one wishes to trust these same independent judges and who have the concern of impartiality for the implementation of a whole series of particular methods of research. This seems to me quite consistent and does not require further investigation before. Obviously, if we can reassure the journalistic world by improving the law on the protection of sources, we are the recipients, although, in my opinion, the text is already sufficiently clear.

The text we will vote on extends the application of particular research methods to those who abstain from the execution of their sentence. I do not hide that the original text has caused me some difficulties in so far as it is ⁇ of legal tradition, but ⁇ welcome, to consider that the fact of avoiding the execution of the sentence does not constitute an offence in itself.

I therefore sought the judicial purpose of these particular methods of research. The explanations obtained convinced me that the application of these particular methods of research should be extended to those who want to avoid the execution of the sentence and regardless of the international commitments we have contracted. I also believe that it was necessary to amend the text and that the text finally voted in the committee is probably more appropriate than the one that merely states that particular methods of research were possible in this context. A law — any law we vote for and more specifically those we vote for in criminal law or criminal proceedings — is by definition of general and theoretical scope. It will ultimately be what the practitioners will do with it. We have little to do with this becoming. Hence the importance of the training of the police officers who will be brought to apply it and of the control of their practice – which, by the way, seems quite satisfactory; the Parliament has created a Committee P that can play its role in this regard. Hence also the importance of the magistrates, whether from the public prosecution or the headquarters, who intervene in the implementation of particular methods of research, who will intervene in the control of these particular methods. They will participate in the jurisprudential evolution of certain notions, I repeat, for example, of home. by

Hence, then, Madam the Minister, the importance of training, that of magistrates in general, and not only for these methods. Can I say that in my opinion, the responsibility of the Supreme Council of Justice seems overwhelming to me? And this is true since 2003 and the first law, not only in relation to this text. Ultimately, it is the Council that has the power to appoint. Without a doubt, in addition to the conditions of competence and intelligence, the Supreme Council of Justice must be ⁇ attentive to the concern of each candidate for individual freedoms and the protection of the citizen and to the concern in the head of the future magistrate for the respect of the legality of weapons. This is also a daily practice. by

Let’s say it clearly: this equality of weapons is ensured in the law. It remains to be implemented on a daily basis. The concern of a repression, the concern of a prosecution, is to obtain a condemnation, otherwise it makes no sense. To obtain convictions, one cannot do so before magistrates who want to be independent and who show impartiality only by presenting a well-assembled dossier, which contains elements of evidence and which is identical for the judge who will be brought to judge and for the accused or accused.

This is the equality of weapons and, without this element, there will obviously be no condemnation and, therefore, no effectiveness of repression. And this repression of organized crime and terrorism, I believe we all here want it! Therefore, it is in the interest of all — from the prosecution and the police first — to provide all and judges in particular with the largest number of evidence, while respecting the contradictory debate with the defense.

When it comes to organized crime and economic and financial crime, our democratic balance is also on the seat because these crimes undermine our democracy! We must therefore be more than attentive, fight them and give ourselves the means to do so. Of course, it is our responsibility to find this balance — I return to that word — but it is also our responsibility to vote on the texts dedicating this balance. That is what we will do!

Mr. Speaker, dear colleagues, in a case like this we would almost tend to stand behind the Minister of Justice, even if it was only because the proposal is most heavily criticized from a yet very questionable and suspicious angle, a corner where one does not take it as closely with human rights. Then, of course, I’m talking about the so-called League for Human Rights and the so-called Ligue des droits de l’Homme, organizations that are unfortunately filled with Marxists pur sang and other little democratic figures, who are not afraid to completely undermine the free expression. We have seen this in the shameful political processes that have been carried out in this country in recent years.

If these leagues want to regain voice and impose some respect for the protection of human rights in the broad sense, it is time for them to transform from marginal clubs of far-left extremists to pluralistic, widely held organizations where supporters of dictatorial regimes are put on the door and not hired as lawyers. At the same time, they should no longer be unilaterally concerned with the protection of the perpetrators of criminal offences, but also with the protection of the victims and the protection of society as a whole.

However, I would like to make two comments on the bill. First, there is the incredible delay with which the design was submitted. The Minister has cited a lot of apologies, but those are not enough and are only partially correct. That caused a very hasty discussion, resulting, among other things, in some remarkable errors, which we have yet to correct at the last moment, even at the very last moment. It is thanks to the goodwill of the opposition that the file could eventually be completed on time.

Secondly, the provision of Article 2 on provocation is indeed too broad. It goes beyond Cassation, which limited the provocation to those situations where the will to commit the crimes has directly arisen or possibly been strengthened by the action of police officers or police officers. It is now sufficient that the intention would be confirmed as a result of a police action, while one had the intention or the intention to terminate a plan. We find that an excessive extension, because it will result in every action of a police officer and in every infiltrate the relevant article will be invoked. One will claim that one actually planned not to commit the crime, while it was ultimately committed by the police.

The boundary of creating an opportunity to commit a crime, by the action of the police, which is permissible, is really flinterdun. We fear that this too often will benefit offenders, even though this provision is no longer limited to the special detection techniques, the law we discuss today, but from now on will apply to all crimes of the entire Criminal Code. This expansion is too extensive. There are many reasons to suspect that this legal provision will need to be amended again in the short term because it is too extensive. In this regard, we are not satisfied with the present draft law.

Dec. 20, 2005 | Plenary session (Chamber of representatives)

Full source

and yes.

The other registered speakers are not here at the moment. I had informed Mr. Marinower that he would be on his turn in the early afternoon.

I will also submit a proposal for the arrangement of the work for tomorrow. I am slowly finding a consensus between the various group chairs.

We have fighters, but not the good ones. There are only those who have already spoken.

Mr. Van Parys, I know you would like to speak last, but can I ask you to keep your speech now? That would be very friendly. In this way you help the Chamber, Mr. Chairman of the Commission, and I am very pleased that you want to do so.

Mr. Speaker, Mrs. Deputy Prime Minister, colleagues, I would rather have spoken at the end. After all, I would have been able to listen thoroughly to the arguments of the other colleagues, especially those of the French-speaking colleagues. Okay, we will get into the debate. First and foremost, I would like to thank the reporter, Mr. Malmendier, for his excellent report. That thanks will be given to him.

Mrs. Minister, our group is absolutely in favour of providing our police services and parquets with the necessary tools to carry out the fight against terrorism in an efficient way. I think we really need to take into account the current circumstances, and the records of the last few weeks have once again demonstrated that we need to have a number of special detection methods. Therefore, we are in principle won for these special detection methods, but of course under certain conditions: the so important balance between efficiency, human rights and privacy rights. In such an important design, one must seek and find that balance.

For this reason, it is especially unfortunate that we have had to discuss this bill in the circumstances in which it happened. I must say that we have fundamental problems with this. You know that the decision of the Arbitration Court dates from December 21, 2004, exactly a year ago.

That judgment explicitly stated that the items destroyed had to be restored before 31 December 2005. That date is approaching very quickly. The bill was submitted to the House on 15 November 2005, so slightly more than a month before the provisions must be finally restored. This period of time, of course, does not allow us to conduct a thorough discussion that balances between efficiency and the rights to be protected. I share the view of Mr. Wathelet, who has said here with brio that there are still so many uncertainties and there are so many issues that we have not yet been able to think thoroughly about, that with the bill we create some legal uncertainties. I will return to that later.

That way of working — submission on 15 November and the obligation to approve it in the Chamber and Senate in the committee and in the plenary session before the end of this week; finally that the expiration date — has had significant consequences, Mrs. Minister. First, we did not receive any advice from the State Council. It was an emergency advice. In the case of such an important draft, it is very important that the State Council can express its opinion on whether the balance in the draft was ⁇ ined. We received urgent advice and no basic advice.

Secondly – this is even more important in the matter – we discussed the bill without the advice of the Commission for the Protection of the Personal Sphere. I have just mentioned the challenges, namely the efficiency in respect of privacy rights, because the measures are very strong in addressing them. We dealt with the draft without the opinion of the committee, which could excellently advise and inform us about it. We could still take our responsibilities.

This is ⁇ peculiar, because with regard to the original draft law on the special detection methods, we had a comprehensive opinion from the Committee for the Protection of the Personal Life. In fact, we would rather abolish that committee, colleague Giet, because if we do not ask for the opinion of the committee for the protection of the personal sphere, when should we actually do it? Mr. Speaker, I propose that we abolish that committee, because I wonder when we should consult them.

A third opinion that is missing is the opinion of the High Council for Justice. I must tell you, Mrs. Minister, that I had a particular difficulty when you answered my question on that opinion that the High Council for Justice is not competent to give advice on this subject. I think you should explain this again to the High Court of Justice. Fortunately, the High Council for Justice then took the initiative to give an opinion, which we then got at the banks, but that, of course, was not an element of the discussion.

What is the problem? The problem is that in this bill, on the one hand, one has the hole in which one restores what was destroyed by the Arbitration Court, but that one has taken advantage of the opportunity — ⁇ even a little abuse — to take a number of other and new initiatives very quickly, given the quick timing. This causes many problems.

There are important points of discussion, Mr. Minister. They are cited here. I will not discuss them in detail, but three points have been discussed repeatedly, in the media, but also here on the floor. First, the problem of the bullets, the contradictory debate or the lack of contradiction in the debate before the accusation chamber and the confidentiality of the file. Second, the problem of journalists, in particular whether the source secret law is not affected by this bill. Third, the insight operation that becomes possible in a private place, without the permission of the investigative judge, and this at any time. These are the three issues that have been discussed.

I agree with Mr Wathelet. You provided arguments in the defence, in the oral explanation, but I fear that the texts do not provide sufficient legal certainty.

The problem with the draft law is, in my opinion, that a ⁇ large legal uncertainty has arisen or exists, without any doubt. I cannot imagine that the colleagues Wathelet and Maingain, who will be speaking later, would have no understanding of the matter and that the arguments they are developing here, with brio, would have been exposed from all ground.

What is the consequence? The legal uncertainty threatens to bring us into a situation where, although we seek protection for our police services and our prosecutors when using the investigation methods, we would actually have the opposite effect, namely that they get into a new situation of legal uncertainty. I would like to place them on three points.

First, following the proceedings before the Chamber of Councils and the Chamber of Accusations, I fear that all the pain points that have been addressed today will become procedural layers, up to the case of Cassation, which will prevent that in this way very quickly will be able to deliver statements in important terrorism files. This will give rise to procedural failures: the confidential file, the absence of contradiction, the fact that certain files cannot be viewed, the fact that one performs an inquiry operation without permission.

Mrs. Minister, secondly, also an important element is that the opponents of the bill, including the League for Human Rights, will undoubtedly again appeal to the Arbitration Court. This seems to me, given the views taken, inevitable.

Third, I fear that proceedings will also be opened before the European Court of Human Rights. On three levels, there is again legal uncertainty regarding investigations, investigation methods, findings and evidence elements used in the main dossiers dealt with in this country. The legal basis is thus challenged.

I am afraid that you will soon have to appeal again to the Arbitration Court. I have told you in the committee that the way you bravely defend the draft and you bravely found the arguments for your defense against the League of Human Rights, has made me decide that you are perfectly placed to defend the file before the Arbitration Court. After all, I suspect that the League for Human Rights will undoubtedly take an initiative in this regard.

The minister has a very good lawyer. She has a very good relationship with a good lawyer from Brussels.

Mr. Laeremans, you take me

The words from the mouth. I think it would be appropriate, Mrs. Minister, given your knowledge of the file and the way you have included the defence and entered the counter-mine against the League for Human Rights, which you yourself advocate. I am afraid that the "attributed" lawyer of the Ministry of Justice, Master Uyttendaele, is not sufficiently independent from the counterparty, the League for Human Rights. I have great confidence in the way you have defended the case in the committee. I think it would also be the cheapest solution for the Ministry of Justice if the Minister himself started advocating. I will be listening at the moment when the case will be dealt with before the Arbitration Court.

All madness on a stick, there is the risk of procedural strikes for the investigative courts. It also risks a new procedure before the Arbitration Court and the European Court of Human Rights. This means that we are going here on ice and that this threatens to undermine the legal certainty, especially in terms of the protection of our police officers.

In fact, there was only a good solution. That would have consisted that, since it must be completed before December 31, you had split the draft into the articles that repair what the Arbitration Court has destroyed, and the articles with which you wish to take a new initiative.

Then we would have had the time to make the adjustments necessary following the decision of the Arbitration Court before the expiration date. Then we could calmly take the other initiatives.

I know the way they work. The Federal Prosecutor’s Office and the people of the police services have persuaded you to take advantage of this opportunity to quickly take a number of initiatives. I understand them, but I fear that the rush with which it happened could be counterproductive.

Mrs. Minister, I have taken the opinion – and you may not blame me for that – that during the whole discussion in the Committee for Justice in the Chamber the association between the Federal Prosecutor’s Office and the Minister of Justice was far too large, almost visually noticeable. I have always advocated that the federal prosecutor’s office should be much more autonomous than the executive power. We found in this file that there was a total association between the Minister of Justice and the Federal Prosecutor’s Office. That plays part in the perception on the French-speaking side. You are perceived there as standing on the side of the federal prosecutor’s office, which also explains the fierce reactions from, among other things, the balies and the League for Human Rights.

It is a result of the perception of the visually noticeable association of the Federal Prosecutor’s Office as an associate of the Minister of Justice and the fact that the Federal Prosecutor’s Office has said that they have made the law. This was also stated in the Justice Committee. The Federal Prosecutor’s Office has said that they have requested and received this law from the Minister of Justice. Their

I fully understand the federal parket. The park needs the tools. I can even make a large amount of income, provided that we create the legal certainty so that we are sure that these instruments can function properly and cannot be challenged afterwards.

Today we are in a very uncomfortable situation. At this particular moment, this bill is also being discussed in the Senate Justice Committee. Remember that an amendment is adopted in the Senate. That would then mean that this discussion becomes pointless and meaningless because we are discussing a text that may still be modified. Or if you think that an amendment would be adopted in this assembly, then the Senate is discussing a draft that is no longer relevant.

Unless, and that is the point I wanted to make, here the proper decision-making necessary for such an important draft is made impossible because it is a ministerial draft in which the majority parties must lay down and in which there is no room for discussion. This should not be the case for such an important design.

This is the outline of how Parliament should deal with such important bills. We add another number here to give the impression that Parliament has a significant influence here. The only benefit is that one can read in the Comprehensive Report that we have warned the Minister when at some point in important files evidence elements will be destroyed or when the Arbitration Court will annul certain articles. Then we could say that we had warned you about this.

That is actually the only value of the debate still at this moment, knowing how the high urgency is actually organized.

I would like to comment on two points that have been discussed in part following the discussion.

The first point is: the control by the Chamber of Accusation, Mrs. Minister. I believe that for the control of the special methods of investigation, which the Court of Arbitration has requested, the Chamber of Accusation is indeed the appropriate body. I totally agree with that. I am writing in this regard in the principle of the draft law. But I must tell you that I am very concerned about the bottleneck that threatens to arise in the AI, which has received a whole range of assignments in the context of the control of the research and on the research methods.

I am not fully in my list. I asked for the inventory. Per ⁇ we should do this exercise again. There is the classic order of the arrangement of the procedure at the end of the investigation. There is the general control power of the Accusation Chamber under Articles 136 and 136bis. There is control over the preliminary detention, when it exists. And now we will allocate a fourth control power, in particular the control power on the special detection methods.

Mrs. Minister, I think that if we continue to organize all this separately, we will never be able to bring an important dossier to a good end. I fear that at that point, Attorney General Schuermans and Attorney General Dekkers will be right that all these procedures can give rise to endless debates and that we will ultimately fail to fulfill the task people expect from us, in particular that at some point suspects can be tried in important files.

I’m not advocating that there would be no control by the Accusation Chamber, but I’m advocating that everything would be cleaned up. Why would it not have been possible, for example, in the context of the present draft law, to control the special detection methods as a result of the arrangement of the procedures?

I tell you that for the next matter. The discussion that is now being conducted about the procedure at the Chamber of Accusation has arisen because the procedure as it is drawn up in the draft law is actually two-sexual. It is not a contradictory procedure, where the parties are confronted with each other. It is a procedure in which each is heard individually: the Attorney General, the civil party, the instigator, and possibly the police officer who has carried out the special investigation methods. They are each heard separately and there is no confrontation, there is no contradiction, there is no session where the various arguments are confronted with each other.

From this, of course, arises the discussion about the absence of contradictory debate in which, in my opinion, the Balais might have an argument to be equal in the discussions they are conducting, then apart from the discussion about the confidential file.

I think one must make the choice. On the one hand, control can be entrusted to the AI, and then there is an entirely contradictory debate about which, in my opinion, the technical elements of the information and of the research methods must indeed remain in a confidential file. I absolutely believe that, for example, the protection of the informants, the identity and the technology in itself, should not be the subject of the debate. I think this is absolutely necessary because if we do not do this, there will be no informant anymore. So I have no problem with a complete contradictory procedure.

Here, however, you have made a semi-fortunate choice. The AI belongs to the party, but there is no contradiction. On the other hand, one can make the other choice, which is also a possibility and which I actually have no problem with. However, I know that this is controversial. It is said that each party can take the initiative to appeal to the AI for the control of the special detection methods, for example within the framework of Articles 136 and 136bis and thus the general control power of the AI. Then there is ⁇ no contradiction and the parties are not even heard. The file is submitted and the AI judges whether the legality of the research methods is present.

It is actually a double possibility. Or it takes articles 136 and 136bis, thus the general control power of the AI, without debate. Or one takes the contradictory debate in its globality with the confidential file, reduced to the minimum minimum. I think the ballots should be convinced of this. This would then have the advantage that we integrate this control into what already exists and that we do not actually introduce a new procedure in addition to the already existing, the general control and control following the arrangement of the procedure, where applicable, the provisional detention. It would have been very useful if we could have done this in the context of the discussion of this draft law because in this way we would have simplified and accelerated the procedure. We could then parse the criticism that exists now, saying that for that Chamber of Accusation procedural steps will be delivered to the infinite, and that one will never reach a judgment within a reasonable timeframe. Hence, Mrs. Minister, that it would have been very interesting if we could have conducted the debate more thoroughly. We were willing to propose alternatives in this regard.

I come to a final point. It has not yet been discussed in this debate. These are the so-called Federal Specialized Investigative Judges. Very little has been talked about. I understand, of course, that the installation of specialized investigative judges for terrorism is a tempting idea. I can also earn income there, I think it is important that we have investigative judges who are specialized in this matter and who therefore also have federal authority. I just want to warn somewhat of that blind confidence in the investigative judge that apparently exists in many. The investigative judge as an institute is interesting, is important, is independent and investigates à charge and à décharge. However, there are always people who fail and who can fail.

To the extent that the investigative judge fails, a huge risk arises because his power and authority are ⁇ large, as well as his independence, which can occasionally create problems. In short, I have no problem in myself with the specialized investigative judges, but warn of blind trust. However, there is more. If there are specialized investigative judges, Mrs. Minister, we should also have specialized investigative courts. Then the control will be efficient. We have already established many times — Mr Marinower has already pointed out — that the investigation courts are so overloaded that the handling of the files for the council chambers and the AIs has become almost a routine matter because they do not have the resources and capabilities to do so thoroughly and thoroughly. At the hearing in the committee, Attorney General Schins pointed out very clearly that this will not be possible without additional resources.

The draft law provides for at least one specialized investigative judge per district. In Brussels there must always be a Dutch speaker and a French speaker. I wonder if our country has six specialized investigative judges on terrorism. With all respect and this does not impair their qualities, in Belgium, however, having six specialized investigative judges on terrorism is not nothing. I hope we will find them. There will still be a lot to be invested in this specialization. At the moment, one is only specialized because one gradually builds up experience through practice in a file. In this sense, no training is provided. You said that the Supreme Court of Justice will deal with this. I agree with it. In that High Council, however, I must find the first one who is truly specialized in the matter of the methods of investigation and the matter of terrorism. This does not affect the High Court of Justice. However, we must be careful with our praise on the specialized investigative judge. We might rather remain calm in a matter where mastery is an absolute requirement.

Specialized investigative judges, yes, insofar as they are specialized and insofar as specialized investigative courts are available. We do not have them. As regards the specialized investigative judges, you know, Mrs. Minister, that I have a quasi-allergic problem with the blanket of the investigative judges in Brussels, which is only given by its ancientity the extremely important authority to designate which investigative judge will be appointed in a terrorism dossier and which must not be based on any objective criterion. It is because he is the oldest. I believe that age can guarantee quality. I would contradict myself if this was not the case, but there may be exceptions. Only because one is old, one would also be wise, Mr. President.

This is not a general rule.

Mr. Speaker, that is the point I want to address.

I make it for you.

The consequences are enormous. The oldest investigative judge of Brussels - there it will happen; for those who have no confidence in the justice in the Brussels area this is not insignificant - will not only determine who the investigative judge and the investigative court are, but he will also determine the competent correctional court and judge in substance. This is an incredible power position.

It is not the Federal Prosecutor’s Office that chooses its investigative judge.

Yes, I know that. And you are right. I agree that it should not be the Federal Prosecutor’s Office. But to say then that it must be the blanket of the investigative judge...

Mrs. Minister, you imagine that one might be able to somehow seize the blanket of the investigative judges, that he has become so old that he becomes influential. At that moment, he determines the entire course of the file. I am not saying that this is the case now and I am aware of the relativity of my hypothesis, but in terrorism files we must provide mechanisms and fill them in order to prevent such practices.

The deck of the investigative judge should not indicate a criterion. He should only say who is competent, even without giving a reason, for example because someone is more specialized in financial records than in files of organized crime. He does not have to give any criteria, he does not have to answer himself.

In my opinion, there is also no legal remedy provided.

I think that is a weak element. It does not, of course, undermine the bill. However, I believe that a solution must be sought. My proposal is to appoint the investigative judge from the jurisdiction where the facts were committed. If there is a specialized investigative judge in each jurisdiction, this is possible. That could already be an objective basis which would at least prevent the unilateral organization of handling and handling of dossiers. We have experienced situations where the problem was ⁇ delicate.

A final point is the following. It is a provision which, in my opinion, presents risks for the procedure of the specialized investigative judge. What has happened? In the bill, you have given the specialized investigative judge the exclusive authority to act in terrorist files. In Article 15, you say that if one is faced with facts related to terrorism, the federal prosecutor must deliver the file to the blanket, which delivers it to the specialized investigative judge. It is therefore an exclusive, exclusive competence of those investigative judges. Well, I think that we are at risk of a problem as a result of any conflict of jurisdiction between the specialized investigative judges and the so-called ordinary investigative judges. We also discussed this issue when we talked about the Federal Prosecutor’s Office. You will remember that. After we installed the federal prosecutor, which is also specifically competent in a specific matter and thus also has an exclusive competence, we approved an amendment to avoid useful lawyers from creating procedural incidents and conflicts of competence regarding the competence of the federal prosecutor, on the one hand, and of the prosecutor of the King or the prosecutor general, on the other. That amendment stipulates that, in the event of competence problems between the federal prosecutor and the prosecutor of the King, no annulments can be brought.

Those conflicts of jurisdiction cannot therefore give rise to irregularities in the procedure. I am afraid we are facing the same problem here. These specialized investigative judges are competent in matters of terrorism, while ordinary investigative judges are competent in other matters. Now, at the time of a conflict of jurisdiction, it may well be that investigative acts made by the non-competent investigative judge can be annulled, or at least will be the subject of a dispute before the investigative courts. As a result, we have again a cascade of procedural layers for the investigative courts.

Therefore, I would like to suggest that you include in this text, as we have done for the Federal Prosecutor, that conflicts of jurisdiction between the specialized investigative judge and the ordinary investigative judge cannot give rise to nullity. That is identical to the same article as the article we had provided with the Federal Prosecutor’s Office. Otherwise, we are in a problem.

Let me give an example from abroad: the fire in London. At the initial findings, it is assumed that it was an accident. However, afterwards, in this hypothetical example, it is established that it is likely to be a terrorist attack. What happens then? In the event of an accident, an ordinary investigative judge is appointed. He is on the spot of the facts and sets out a number of investigative acts. Afterwards, it turns out that there is reason to appoint a specialized investigative judge. The question then is: what is the fate of the acts that the ordinary investigative judge has placed?

The reverse can also be: a fact is established and the federal prosecutor, who would like to allow the special detection methods in that file, qualifies it as terrorism. A specialized investigation judge is appointed and a number of special investigation methods are used. Afterwards, it turns out that it is not terrorism, but a common law crime. The question then arises: are the acts committed or approved by the investigation judge in the context of those special investigation methods valid or can they be declared void if afterwards it turns out that an ordinary investigation judge should have been appointed?

In order to avoid this, I dare recommend you to submit an amendment. I have one ready, but will not do it because of the fact that you yourself can perfectly take the initiative. I do not want to delay the discussion. It is the same as with the Federal Prosecutor’s Office: if there is a threat of conflict of jurisdiction, it does not affect the regularity of the procedure. By the way, it was Mr. Coveliers — then still a member and group chairman of the VLD — who at the time at the discussion of the federal prosecutor’s office submitted that amendment, which was also approved.

Here again threatens a fundamental problem that can cause numerous incidents. In the first place, we threaten to be unable to bring the suspects before the court in a timely, fast and efficient manner with regard to the most important files, such as those relating to terrorism, and not so much with regard to the procedure.

It is in this light, Madame the Vice-Premier, that I have held this intervention: not at all with the intention of delaying anything or adopting a non-constructive attitude, but to point out to you the fundamental problems that arise here because of the hurry with which we have had to address this. Good governance would have assumed that we held the vote here today on the articles that the Arbitration Court has destroyed and which are being repaired, and that we could conduct the discussion on the other methods basically quietly, with a calendar that we could have perfectly agreed. Then we would ⁇ have been able to offer these special methods of investigation to our police services, provided that all rights are respected and without any subsequent disputes. It is a pity that we were not able to do this.

In order to alter the languages, I give the floor to Mrs Nagy.

Mr. Speaker, Mrs. Deputy Prime Minister, Ladies and Gentlemen, two questions can be asked regarding the discussion of the bill on the particular methods of research.

The first is of general order and concerns the terrorist threat. Is terrorism a threat to our country, and should we fight it resolutely? My answer is yes, three times yes, of course. But while the primary purpose of terrorism is to jeopardize our democracy, it is not necessary that the tools we create to counter it disproportionately limit our fundamental freedoms.

The second is as follows: does the bill we are discussing today go too far? The answer is yes. by

I told you that I did not doubt your sincerity when you expressed the necessary balance to be ⁇ ined between the effectiveness in the fight against terrorism and the maintenance of our democratic guarantees. My a priori is always favorable, but I must also find, following the discussions and hearings in committees and other elements delivered by the news, that the representatives of the police and the prosecutor's office - federal, in particular - including my colleague Mr. G. Van Parys highlighted the very troubling place in the commission, they truly appropriated the project as if it were they who carried it and supported it frankly. by

However, it should also be noted that the project mobilizes a very unusual opposition, ranging from the Human Rights League to prominent investigative judges to members of the bars. Now a petition has been launched and signed by hundreds of lawyers, the Association of Lawyers for Democracy - at the initiative of this petition -, the General Association of Professional Journalists, Law Professors, and I pass.

It was in 2003 already!

Was there a petition at that time?

It does not matter! There was the same question, the same social debate in 2003.

The Minister is wrong.

It is human, but to persevere in error is diabolical. This is not a reason!

A mobilization occurred, arguments were exchanged and relayed in the press. We had the opportunity to discuss this in the committee. Even the Supreme Council of Justice, which sent us a notice of initiative – we had a discussion about the fact that nothing had been asked of it – questions on many points that remain at least subject to interpretation.

In my opinion, therefore, it is necessary to take these elements into account and to estimate how the balances are appreciated on both sides, both by those carrying out an action against terrorism and by the guardians of the guarantees of freedoms.

Today, even in the press, the prosecutor of the King of Charleroi indicates that, I quote him: "the anti-terrorism law is virtually suspended." He wondered whether the procedure of secret check on the confidential file will pass the ramp of the European Court of Human Rights, due to the case-law of that Court.

In the face of all these criticisms, little changes were made to the text initially submitted. Furthermore, the period during which we are discussing this text, either just before the parliamentary holidays and before the date of 1 January 2006 imposed by the arbitration court’s decision for the measures it has partially canceled, constitutes a very short period. All this prevents them from studying in depth the interpretations and questions awaiting and from making decisions in knowledge of the cause.

It is hard to acknowledge that, despite your answers and all the conviction you put in it, the main questions about the project remain.

These questions concern the distinction between private place and home to allow discreet visual checks, as well as the application of the law on the secrecy of sources, guaranteed to journalists. They address the question of the confidential file relating to MPRs, thus the guarantee of the rights of defence that must be put in place.

They also address the possibility for indicators to commit infringements in order to obtain certain information. I will come back to these points in more detail later.

As others have already said, the project in discussion is a law of repair. The law of 6 January 2003, partially repealed by the Court of Arbitration in its judgment 202 of 2004, had already at that time raised many remarks and criticisms. Amendments were submitted, including by my group. The Court’s judgment partially confirmed the analyses that were made at the time.

The title of the project under review ensures that it is about fighting terrorism and serious and organized crime. In reality, following the partial cancellation by the Arbitration Court, this project proceeds to strengthen certain police techniques. However, the text does not define the notion of terrorism, nor that of serious and organized crime. On the contrary, it is intended to apply to the search for the perpetrators of any offence capable of resulting in a one-year imprisonment. As this has been demonstrated in the commission, therefore, this is not just acts of terrorism.

The project further extends the scope of these methods to new facts such as the refusal to obtain a stamp, regardless of the facts and the sentence pronounced.

This is not true. The [...]

Mr. Speaker, the remarks made by Ms. Nagy are contrary to the texts and in particular to an amendment which I have been the instigator. I would therefore like to clarify that the text does not apply to all the assumptions according to which someone tries to evade his punishment. Conditions for the application of special research measures must be met. It is written black on white.

Mr. Giet, during the discussions in the committee, it appeared that there is the interpretation given by the representatives of the majority that arose from the text deposited, and that given by the Attorney General that is slightly different. Therefore, I would like to admit that by amending the text, it was answered to the criticism that had been issued. If I have failed to clarify this point, please apologize.

These methods consist — it should be recalled — in infiltrating and using indicators. The accounts and bank coffers of suspects may also be observed at the simple request of the prosecutor’s office. The latter may authorise police services to enter, without the knowledge of the interested parties, into the professional premises, with the exception of medical and lawyer offices, to perform excavations or place microphones and surveillance cameras there.

These methods of investigation are characterized by interference in privacy and the use of police tricks. Moreover, the implementation also deviates from the general principles of criminal proceedings, since the relevant data is recorded in the confidential file.

The distinction provided for in Article 6 between private place and domicile remains problematic. For the discreet visual inspection performed in a domicile, the authorization of an inquiry judge is required, which is not the case in other private places, where this control can be decided by the King’s Prosecutor without the intervention of the inquiry judge. However, by dissociating domicile and other private place, Article 6 restricts the protection provided by Article 8 of the European Convention on Human Rights, which protects the domicile and private life, the notion of domicile being widely interpreted by the case-law. by

Furthermore, the boundary between the domicile and its dependences referred to in Article 6 and other private places is blurred and will give rise to disputes. We have heard this from the various speakers. The question of visual control is all the more acute as it is expected that it will be able to exercise at any time, instead of the usual restriction between 9 a.m. and 5 a.m., which is also controversial. Therefore, I will submit an amendment aimed at removing this Article 6 and amending Article 17 amending Article 89ter, so as to return to the previous procedure requiring the permission of the investigation judge to enter private places. I also submit a subsidiary amendment in the event that Article 6 is not deleted. In fact, I heard the discussions both in the committee and in the plenary session on the evolutionary notion of the home. In the event that this amendment is not accepted, I have provided for a subsidiary amendment aimed at assimilating the residence of the journalist to that of the lawyer and the doctor, places for which the authorization of the judge of inquiry is necessary.

The confidential file relating to the special methods of observation and infiltration research as provided for in Articles 10 and 12 of the project is also a problematic point. The confidential record method shows how difficult it is to find a balance between the principle of equality of weapons in criminal proceedings, which involves the ability of the defence to take knowledge of the evidence held against it, and the necessary protection of witnesses and persons who have participated in particular research methods.

Therefore, it would be better to leave to the investigating judge the task of deciding, at the time of closing the investigation, what, in the context of an investigation, must be kept confidential and what can be paid into the criminal case. I am submitting an amendment to allow the investigating judge to make a balancing examination between the need to keep certain elements secret and the rights of the defence. by

To the extent possible, the right to challenge the legality of particular research methods that have been practiced against him shall be preserved.

Article 13 of the draft provides for the possibility for indicators to commit infringements. I understand that, for indicators, refusing to commit an offence can compromise their role in monitoring criminal organizations. However, given that it is difficult to replace these indicators, given the "pointed" knowledge that they must have of these organizations, the project opts for a solution that allows them to commit crimes while keeping a foot in these criminal organizations. However, allowing offenders to commit offences poses many problems, both ethical and practical, in particular with regard to their police control and the risk of escalating the commission of permitted offences.

The bill provides that six conditions must be met in order for indicators to commit infringements. These offences must be absolutely necessary, they must be proportionate to the interest; they must not directly and seriously harm the physical integrity of persons; they must be brought to the knowledge of the prosecutor who can authorize them and who, in a written decision, must indicate the offences that may be committed. The third condition is problematic because it appears to exclude only offences that could directly and seriously harm the physical integrity of persons. It seems to me necessary to exclude any offence which may cause an offence, whether serious or less serious, direct or indirect, to the physical integrity of a person.

The fate reserved for the amendments I am submitting will of course determine the vote of Ecolo.

The changes proposed by my group are: a better control by the investigative judge with a corollary that is compliance with the law on the secret of sources, a better exercise of the contradiction within the confidential file and finally a better framework of the possibility for indicators...

Mrs Nagy, if I have understood correctly, you defend the notion of domicile as interpreted by the case-law, whether the Court of Cassation or the European Court of Human Rights. I do not understand how the text that we are going to vote puts this notion into question. We are always talking about home, it is the same word that has been interpreted so far in an extensive way. Therefore, we do not touch at all the word—a number of letters put together—: “domicile.” Therefore, the jurisprudential interpretation given to it remains perfectly valid, yesterday, today and tomorrow.

Therefore, I do not quite understand the problem of the word “domicile”.

Like other members, I am obviously sensitive — ⁇ only professionally — to the problem of arms equality. On what basis will a quidam be condemned today or tomorrow? On the basis of the file that will be submitted to the judge! What will the file be submitted to the judge? Exactly the same as the one who is subject to defence! Therefore, there is no evidence below the judge’s office that is not accessible to the defence. I don’t see where the violation of the equality of arms lies!

Madame Nagy, you had not finished, ⁇ you would talk about it, but you fail to talk about the control of the Chamber of Accusations which is yet a fundamental guarantee that did not exist — and for a reason, this is the reason for our presence today — in the 2003 law that the majority of the time had voted for.

by Mr. Wathelet wishes to intervene in this debate. As we are comfortable, I have no objection to him taking the floor.

Mr. President, I thank you. I would like to come back to one point mentioned by Mr. by Giet.

The principle is, in fact, that at the time of the trial before the main judge, the latter has the same arguments and elements as the defence lawyer. Nevertheless, when the Accusation Chamber knows of a particular method of research in the context of information — I mentioned this case recently — this could pose a problem.

What is it? The Prosecution Chamber is seized during the information phase. It decides on the particular method of investigation by verifying its legality, namely compliance with the three elements (technical, tactical and identity of persons). It may be that subsequently, within the framework of the Rules of Procedure, by appeal to the Chamber of Councils, the case is returned to that same Chamber of Accusations. If that is the case, it is important that the magistrates who sat in the Chamber of Appeals in order to decide on the particular methods of investigation and who therefore had access, by definition, to the confidential file, are not the same as those who decide at the time of the settlement of the proceedings. That is why I submitted an amendment. And I would have liked to get answers in this regard.

Your comments have caused some reactions from your colleagues. Mr Marinower, you have the word.

Mr Wathelet, I have already heard your comment this morning. Some people here have reacted to this almost spontaneously by stressing that it seems to us the evidence itself that the Chamber of Accusation, which at a later moment will have to judge on the investigation, on the conclusion of the investigation, on the arrangement of the procedure, will sit in a different composition than the AI that has judged on the specific aspect to which you have alluded.

It seemed, at least on this side, to be the evidence itself. This is happening in every file today. On the front of the file is a list to be completed in connection with incompatibility of magistrates, for example if they would have appealed to the court of first instance during the course of the examination of the court of first instance. It seemed to us as evidence, but apparently it is not so certain for you.

Mr. Speaker, Mr. Giet, the whole question that concerns us and all those who have looked at the project, is to determine the notion of "private/public place", that is, a sphere in which you are not entirely in the home, but yet a private sphere protected by the case-law of the European Court of Human Rights, such as hangars, box, etc.

We wondered if it was not preferable, in order to define precisely the private places, to clearly determine the precise places and indicate that they are hangars, boxes, all places impossible to confuse with places of residence or a private activity is taking place.

The whole discussion therefore focused on the margin between this new notion appearing in the law and what constitutes the sphere of privacy, to which it remains indispensable to guarantee protection. If you answer me do not see the problem, I can understand since that is the subject of the discussion.

Madame Nagy, I do not want to extend the discussion, but I think you are taking the problem in reverse.

You are talking about a new notion; in reality, the important thing is that the notion of home remains perfectly identical. This means that the jurisprudential protection granted so far will also remain the same. What is currently covered by the European Court of Human Rights will remain.

Mr. Giet, the problem is precisely that we are trying to identify places. It is necessary to differentiate between the time when the policeman, implementing the MPRs, will realize that it is a domicile, requiring the appeal to a judge to carry out his discreet visual control and the time when he will understand that he is in another case of the case, that is, in a place that cannot be considered exactly as the domicile.

That is the whole problem. Without this question, there would be no discussion on the project, between you and me, nor questions asked by the bars, by the Supreme Council of Justice and all the others. This is an important element.

Like the mr. Wathelet pointed out, when one receives in the discussion examples of box, hangars, or disabled sites, it fits perfectly, but the problem is that this is not included in the law. I think the discussion is about that.

We have given some answers on this issue.

There should be no ambiguity between what you have called public-private or private public places, public places and the place of the home. This is a very important part of the discussion. The solution I advocate is to remove this difference and to pass through the control of the judge of inquiry. At this point, I also didn’t understand why we absolutely refused to go through the examination judge’s control. We had first invoked the deadlines before we realized that the investigation judges wanted to go quickly. Then we talked about proactivity, but in the cases of terrorism we are talking about, isn’t an investigative judge taking the case anyway? These points seem to create serious difficulties. I prefer the guarantees that can be removed.

This is the investigation that must determine whether or not there are criminal facts.

That is where the problem lies, Madame.

But there is no problem on this specific point. In Belgium, one million files are submitted to information each year. There are a lot of unfollowed classifications. It is when a sufficient number of relevant information is collected that it is determined whether it deserves an instruction or to lead an information to the end.

I do not see how difficult it is, in such sensitive matters as these, to maintain until the end control by the judge of instruction. None of your arguments convinced me of this need to remove the control by the judge of instruction.

Did you know that we go much further than the 2003 law in trusting the Investigative Judge? Previously, with the mini-instruction system, the investigative judge intervened at a given time and then withdrew from the game. Here, the principle is as follows: from the moment it is seized, the investigation judge will work to the end on the file. There is only one exception that you must accept if you tell me at every point that you agree: we can proceed in terms of information to a discrete visual observation in this famous hangar...

Where is it indicated that this is a hangar? Write it ! by

Why do you not include it in your law, instead of pretending that it is general measures?

Please let the Minister answer to you.

Madame Nagy, at certain times, the hangar in question cannot be subject to discreet visual observation without the intervention of an investigative judge. It all depends on the presence or not of elements allowing to establish whether, yes or not, the correspondence relates to private activities. If this is the case, discreet observation will not be possible.

But I return to my question: how can you know it? It is only by entering the hangar or the box that one realizes the existence of a correspondence, a bed, etc. How could you know it before you enter?

Madame Nagy, if a King’s prosecutor ever assumes the responsibility of entering a hangar without going through an investigative judge, and that place concerns private activities and there is correspondence there, all evidence he has collected will be annulled. Are we agreeing? I say rightly: all the elements. Now, in terms of evidence collection, as you know, this is not new and does not come from this bill: discreet visual observation has already existed for some time.

Why do you not accept the principle of control by the judge?

for a moment! Everyone has the time to talk after each other.

A question was asked to me during the discussions: yes or no, in the case of discrete visual observation, can one check the content of a computer and, through this, collect evidence? Is it possible to find a box for this purpose? Discreet visual observation does not allow this - to be very clear. I say it and repeat it: never a King’s prosecutor, unless he seeks to ruin the effectiveness of his action, will take the risk of confusing a home with a private place inaccessible to the public that is not a home.

As for your willingness to make a list, I repeat that it is impossible. Because a box can sometimes be considered as a domicile according to the case-law of the Court of Cassation and, at other times, not. So, instead of working from such a list, we preferred to rely on criteria that meet the aforementioned case-law, aiming at the absolute protection in Belgium of the home in the broad sense of the term.

It is not about making or not making a list. For my part, I would like to remove the possibility of not having to appeal to an investigative judge to authorize this discreet visual inspection. The amendment I have submitted goes in this direction. by

During the discussion in the committee, you cited examples. That is why I allowed myself to make a suggestion. So, if you really want to limit measurement to extremely precise items, why not list them? This is not your choice. You explained why. It is not my job to extend on the subject. However, I would like to draw your attention to the fact that the risk is real. It is not just a question of the validity or non-validity of the investigation. The problem mainly lies in the fact that a place of residence could be subject, by mistake or not, to a discrete visual inspection, control which, according to the Court of Arbitration, is equivalent to a search and, in doing so, must be subject to the authorization of the judge of inquiry. by

I come to the second point. Mr. Giet, it seems to me that again you do not see the difficulty! I explain to myself. We have a secret file that contains the elements mentioned during the discussion regarding the tactical technique and the name of the person who gave the information. However, you should know that the defence does not have this information during the contradictory discussion with the public prosecutor. This is where the difficulty lies. We are trying to find the best way to solve the problem. A proposal is made in the framework of the bill. It does not suit us because it seems to us that it does not allow a discussion on an equal footing of one and the other. by

We are trying to find a solution. Thus, the amendment I have submitted aims to introduce a better framework for this confidential file and the exercise of the contradiction procedure between the parties. It is about determining how to respect the principle of secrecy for certain very limited but not as such elements in the text of the law. Statements have been made in commission, but the text submitted to us does not stipulate that the confidential file contains only or essentially one or another element.

I conclude with the possibility for indicators to commit infringements in a better frameworked manner.

These changes are crucial to ensure the balance between the effective use of special police techniques in the fight against terrorism and major crime and the preservation of our fundamental freedoms. Without these changes, this project remains unacceptable for us and we will reject it.

Mr. Speaker, Mrs. Minister, dear colleagues, I am extremely pleased to see the incredible defence of the judges of instruction. Napoleon said of them: "These are the most important figures of the state." I see that this is actually the case, since they are even defended by the Ecolo movement in Belgium. It is exceptional to hear such a serious defense of the instructor magistrates.

I would like to comment on a few aspects of the past few weeks that have attracted my attention. I have read and heard in the written and audiovisual press some statements relating to particular methods of research. It seems that they constitute a negative element for the bill under consideration today.

I think it is useful to put some things to the point before addressing the substance of your bill.

First, as several speakers have repeatedly recalled this morning, it is necessary to maintain the difficult balance between the interests of the state and the fundamental freedoms and interests of citizens!

Remember, however, that these special techniques of investigation received a legal framework during the previous legislature, while they were used — we know it — for many years on the basis of ministerial circulars, we would dare to say, confidential. At the request of the judges, it was good to ⁇ a legal framework. The Law of 6 January 2003 on Special Research Methods and some other methods of investigation already responded to a democratic requirement, namely to define a strict legal regulation regarding methods whose application was likely to infringe fundamental rights and freedoms — respect for privacy, etc. – or the fundamental principles of criminal proceedings, such as the principle of loyalty in the collection of evidence and the rights of defence.

I repeat: it is important to emphasize that magistrates and law enforcement were demanding a clear legal framework allowing them to act in full legal certainty. They had also recalled that this legal certainty applies both to the prosecutors and to the magistrates and investigators, since on this point, everyone must be put on an equal footing.

The 2003 law was therefore intended to prevent particular research methods from undermining democracy and individual freedoms. It was up to politics to balance the demands of fighting organised crime and respect for the fundamental freedoms and rights of everyone.

In 2003, a legal framework was given to particular methods of search and investigation such as interception, seizure and opening of mail, the possibility for the King’s prosecutor to obtain information on accounts and banking transactions, observation, infiltration, the use of indicators, etc.

What control? These methods are now subject to an inspection carried out, as the case may be, by the King’s Prosecutor, by the Federal Prosecutor and, within each decentralized judicial department, by an officer in charge of the permanent inspection.

Mr. Speaker, I may be a little longer, because I am reviving the 2003 law, but it seems that we have time!

( ... ...

Parliament always has the time that suits it.

However, it is necessary to revise the law of 2003, Mr. Hasquin, in relation to this new bill.

We will vote around 18:00, Mr. Courtois. I still need to hear mr. Marinower and Maingain and the Minister’s response.

The 2003 Act determines the legal conditions for the implementation of observation, infiltration, use of indicators, etc. This law delimites the respective interventions and controls of the King’s Prosecutor, the Investigative Judge and the Chamber of Councils.

It regulates the conditions under which police services may be allowed to enter a private place. I repeat, the aim pursued was to find this delicate balance of which we have talked so much about between public security and the fundamental freedoms and rights recognized in a rule of law.

But today we are in a recovery procedure since the appeal brought before the Arbitration Court has allowed the latter to reconsider this procedure established by the 2003 Act.

In its decision of 21 December 2004, the Arbitration Court examined each special investigation technique. From the outset, it emphasizes that the fight against certain forms of especially serious crime or that are the result of criminal organisations with significant resources may compel the authorities to implement research methods, which necessarily result in an interference with the privacy and injury to the inviolability of the domicile of the persons subject to such investigations. It is the responsibility of the legislator, under the control of the Court, to formulate the provisions authorising the use of such research methods, in such a way that the infringement of fundamental rights that it entails is limited to what is necessary to ⁇ the objective described.

The following methods of investigation have been thoroughly examined by the Arbitration Court: observation, infiltration, use of indicators, interception, opening and access to mail, discreet visual control, direct listening, as well as the collection of data relating to bank accounts and transactions. Each method was deemed to be proportionate to the aim pursued, taking into account their scope, the safeguards established and the principles of proportionality and subsidiarity.

I make the impasse on the analysis by the Court of the methods of investigation so that my intervention is not too long. Nevertheless, dear colleagues, I think that this was worth being brought back into the debate so that the objective as described in the bill that is submitted to you is well understood. It is not necessary to take the opportunity of this project to question everything. The Arbitration Court annulled some provisions of the 2003 Act but ⁇ did not condemn the principle of the use of particular research methods.

Today, Parliament is again addressed to this issue following the Court’s judgment of 21 December 2004. I repeat, without questioning the principle of particular methods of research, the Court of Arbitration obliges us to review the 2003 law on three particular points: - the definition of police provocation; - the use of discreet visual control; - observation using technical means in order to have a view in a home as part of mini-instruction and control by an independent and impartial judge of particular methods such as observation and infiltration.

Let’s start with the police provocation. The Arbitration Court found that the application of the restrictive definition of the 2003 Act to particular research methods was discriminatory. Indeed, if the methods have been used, the restrictive definition of police provocation contained in the 2003 Act is applicable.

On the other hand, if no particular methods have been used, it is the broad definition of the Court of Cassation that applies. The defendant prosecuted following an information or instruction in which methods would have been used would experience a situation — which is paradoxical — less favourable than that prosecuted following a so-called conventional information or instruction.

In order to respond to the Court’s judgment, the bill therefore takes back the broad definition of the Court of Cassation and makes it applicable, regardless of the application that has been made of the particular research methods.

Second, let us be clear, as regards mini-instruction, the Arbitration Court has held that discreet visual inspection in a home and observation performed using technical means, in order to have a view in a home, are measures that can be compared, as regards interference in the rights guaranteeing privacy, to search and listening and recording of private communications and telecommunications. Thus, according to the Court, such measures can only be authorised under the same conditions as those which prevail in the field of searches and telephone interceptions. This is also the reason why these methods should also be excluded from the scope of mini-instruction. This is precisely what the project is proposing and by doing so, it strengthens the control to be carried out on particular research methods.

With regard to the control of legality, what reproached the applicants who brought an appeal to the Court of Arbitration? This was the absence of control by the investigation judge or the investigation courts over the legality of the methods used, as well as the lack of access by the investigation courts to the confidential file.

What does the Arbitration Court say? First, on the level of principle, it recalls that the right of defence and the right to a fair trial are fundamental in a rule of law. The principle of equality of arms between the prosecution and the defence, as well as the contradictory nature of the trial, including with regard to the procedure, constitute fundamental aspects of the right to a fair trial. The right to a contradictory criminal trial implies, for the indictment as for the defence, the faculty to take note of the observations or elements of evidence produced by the other party, as well as to discuss them. It also entails the obligation for the prosecution authority to communicate, in principle, to the defence all evidence. We all know this basic procedure. However, the right to get acquainted with all the evidence of the prosecutor is not absolute.

In some criminal proceedings, there may be divergent interests, such as national security, the need to protect witnesses or to keep secret about investigation methods, which must be balanced with the rights of the accused. In some cases, it may be necessary not to disclose evidence to that party in order to safeguard the fundamental rights of another person or to safeguard an important public interest.

However, interference in the rights of defence can only be justified if it is strictly proportionate to the importance of the objectives to be achieved and if it is compensated by a procedure allowing an independent and impartial judge to verify the legality of the procedure. It refers to the case-law of the European Court of Human Rights and, in particular, to the famous Edwards and Lewis v United Kingdom judgments of 22 July 2003 and 27 October 2004.

The objective of ensuring the protection of the physical integrity of persons participating in particular research methods is legitimate and of such importance that it justifies that their anonymity in relation to the parties to the proceedings and the public is absolutely guaranteed. The need to ensure the effectiveness of the methods used for the future by concealing certain techniques may also justify that they have a confidential character.

The preparatory work of the 2003 Act shows that the legislator was aware of the need to organize an effective control of the legality of particular research methods and that he had heard to entrust this control to the courts of instruction. However, the Court considers that this intention is imperfectly translated into the law.

Indeed, the Court finds that the King’s prosecutor who has applied, in his investigation, methods of observation or infiltration and who wishes to initiate prosecution requires the investigating judge to report to the Chamber of Councils, but that he is not entitled to submit any act of official instruction. The investigating judge may not mention the content of the confidential file. The Chamber of Councils does not have direct access to the confidential file; it can only have indirect access there, since the investigating judge cannot use it.

The Court of Arbitration continues its reasoning by clarifying that the inability for the investigation courts to access the confidential file prevents them from exercising an effective and comprehensive control of the legality of the observation methods. Consequently, the Court annuls the contested provisions only in so far as they do not provide that the application of observation and infiltration methods is controlled by an independent and impartial judge. by

The Court immediately adds that the annulled provisions may be taken in full, both with regard to the methods they organize and with regard to the confidentiality surrounding them, provided that the legislator adds to them the designation of the judge offering all guarantees of impartiality to whom the control of legality will be entrusted. by

And this is precisely what the bill brings and, in doing so, it strengthens the guarantees already in place as well as the legality control of particular research methods.

How to ? The Chamber of Accusations, a court consisting of three independent and impartial judges, will be required to systematically conduct a legality check after the information or instruction when particular methods of investigation have been used. Concretely, this means that the public prosecutor will only be able to summon the suspect before the correctional court if the accusation chamber has decided on the regular and correct application of these methods. It is unthinkable that a judge can sit on the same case in two different courts.

The project also provides, in addition to this mandatory control, the possibility of a temporary control in the course of instruction. This provisional control may be exercised upon request of the public prosecutor or of office; for example, as part of the control of a preventive detention. By giving the public prosecutor the possibility to bring the accusation chamber into question, the project allows it to know as quickly as possible whether the methods used actually resist judicial control. Furthermore, the draft provides for the possibility for the court of substance to charge the Accusation Chamber to check the legality of the observation and infiltration if concrete elements appear after the mandatory inspection. by

As part of the mandatory legality control, procedural guarantees are provided. It seems to me important to cite them: - the control is entrusted to a chamber composed of three judges; - the counselors composing the chamber of charges are entitled to consult the confidential file; - the obligation to hear the public prosecutor, thus the magistrate who has ordered the particular methods of investigation; - the defense has the right to consult the criminal case and must be heard; - the defense can claim its arguments, file written conclusions with the chamber of charges in order to clarify its questions and make known its grievances; - the possibility to hear the judge of instruction; - the possibility to hear the judicial police officer charged with executing, directing, gathering, coordinating the execution of particular methods of investigation; - she - if the statute considers it necessary, the chamber of charges in the field. It may even decide to be present at the hearing or to delegate one of its members.

In conclusion, what is important is that by providing for a mandatory legality check after the information or instruction, a provisional legality check, an additional legality check if concrete elements appear at the level of the main courts, as well as access to the confidential file for the advisors composing the accusation chamber, the draft law thus responds to the Court’s judgment that required an enhanced control to be provided in the case of the use of particular research methods.

However, it must be acknowledged that during the discussions in the committee, it was legitimately asked whether the limited access to the confidential file and the content thereof were not likely to violate the rights of defence and thus undermine the fair trial. Dear colleagues, a little practice would let you know that the confidential file must be demysticated. This confidential file of which so many cases are made today, you would be surprised to know what it contains in practice.

All information in the open file is communicated, of course. In order for an observation or infiltration to be granted, six constituent elements must be submitted to the judge’s assessment. I will repeat them again to make it clear to everyone: - first, the requirement of proportionality, i.e. the serious indications of the offence justifying observation or infiltration; - second, the requirement of subsidiarity, i.e. the reasons for which observation or infiltration are indispensable or indispensable to the manifestation of the truth; - third, the identity of the person subject to the investigation; - fourth, the period. For those who practice criminal proceedings, these four elements are found in all files submitted to a magistrate, a lawyer and can be consulted at the correctional office.

The last two items are the subject of the famous confidential file. What are they—they?

The infiltration scenario or the technical means used. Obviously, they will not be included in an open file. The identity of the person who performs the observation or infiltration. You will allow not to disclose such information that would endanger the security of that person.

I would like to make a clarification.

The technique as such can be mentioned in the transparent file. The example of the microwave was mentioned in the committee. What is not included is the technique of placing the microphone: the place where it is placed, the way you listen, as well as the methods of filtering.

That’s why I’m talking about “infiltration” scenario.

Mr. Speaker, let me clarify that the Court of Arbitration has taken, in all articles, what it was supposed to mean, method by method, the confidential file.

This is why the judges are the first to ask for this legal framework.

Mr. Wathelet, have you finished your explanation of the confidential file?

It is not I who will explain the functioning of a parquet; I do not have your experience, Mr. Courtois! However, we are interested in ensuring that all elements of the confidential file are clear. Every word must be explained. Indeed, the report is important since the confidential file must be defined on the basis of the report.

I note that there are also present in the open file, the verbal processes of the different phases of execution, observation, infiltration, but without mentioning the elements that could compromise the technical police means used or the guarantee of security, the anonymity of the police officers in charge of execution, observation or infiltration as well as the written confirmation of the magistrate who authorized the use of the method. Let us be logical, my colleagues. Investigators have no interest in putting too many items in the confidential file and not putting enough of them in the open file. In fact, everything contained in the confidential file cannot be held as evidence. Therefore, they have no interest in loading exclusively the confidential file.

Specifically, what is the content of this confidential file that is so often ⁇ ? The authorization in its full version of observations or infiltrations of the Prosecutor of the King or the Investigative Judge, the decisions of modification, extension or extension. The decision of the Prosecutor of the King regarding the offences which may be committed by the police services in the context of an observation or infiltration, the confidential reports on each stage of the execution of the observation or infiltration and which include, in addition, exclusively, the elements that may compromise the technical means, the police investigation techniques used or the guarantee of security, the anonymity of the indicators, the police officers responsible for the execution of the observation or infiltration.

As we can see, the repressive file is the principle and the confidential file is the exception. It should be noted that the Arbitration Court did not question the principle of confidential file but requested that an impartial and independent judge be appointed to verify this confidential file. This is what the bill that we have voted for today.

A confidential record will only exist for specific methods of investigation, observation, infiltration and indicators. With regard to indicators, this file is intended solely to safeguard their anonymity. For all other special methods, no confidential records will be kept. Everything will be found in the repressive file accessible to all parties. These include – I cite them as examples – discreet visual control, the collection of bank data, direct listening, the interception of mail, etc.

A second question raised in the committee — rightly — concerns the compatibility of the bill with the case-law of the European Court of Human Rights and, in particular, with the aforementioned judgments Edwards and Lewis v United Kingdom. This question refers to the issue of access to the confidential file and its content.

I think I have expressed myself sufficiently in this regard, but there is also the question of the effects of the decision of the Accusation Chamber in the context of the legality control of observation and infiltration methods. The effects of this decision can be of two kinds. On the one hand, the Chamber of Accusations considers, after examining the criminal file and the confidential file, that the procedure submitted to it is subject to an irregularity, a cause of nullity, an omission, a cause of inadmissibility or of extinction of public action. If necessary, it may declare the nullity of the act attached to it and of all or part of the subsequent proceedings. Cancelled items are removed from the file. On the other hand, the Prosecution Chamber considers that the particular methods of observation and infiltration research used meet the legal requirements and that the procedure is regular. However, in the case of rejection by the Chamber of Appeals of a plea raised by the defence, this plea may be further developed by the defence before the Court of First Instance and before the Court of Appeal. If necessary, it may even be admitted by these courts of judgment. Let us emphasize this fact for those who believe that there is no impartial procedure requested by the Arbitration Court.

In addition to the possibility of invoking this plea at the stage of the judgment on the merits of the case, the procedural safeguards applicable in the legality review carried out by the Accusation Chamber are also capable of guaranteeing a fair trial. It is true that the main judge will not have access to the confidential file. It cannot be otherwise. Indeed, the judge of the substance cannot make a ruling on the basis of information which he has acquired and which has not been communicated to the defence.

Before finishing, I would like to return to the innovations of the project.

Mr. Courtois, you used your speech time extensively, but we listen to you with interest.

Mr. Speaker, I would like to resume the innovations of the project compared to what was requested by the Arbitration Court.

The [...]

This is mysterious, mysterious, mysterious. First, there is the creation of the position of federal investigative judge specialized in the fight against terrorism.

and no. That’s the quality here. The MR has always approved the creation of this function. We need specialists to deal with terrorism-related cases. Indeed, as investigative judge Fransen pointed out in his hearing, given the specificity of this type of crime, only the experience and knowledge of these phenomena, acquired through the processing of many files, are capable of allowing an effective work of the specialized instructor magistrate. The specialization will therefore result in better knowledge of the criminal environment and better expertise in the field.

Furthermore, I believe that the establishment of a specialized terrorism magistrate should enable it to establish better contacts at the international level, which is capable of generating a better knowledge of the cases, especially in national and international reports.

Second, there are new possibilities in order to meet the needs arising from practice.

I will point out in particular the collection by the Attorney of the King of data concerning bank accounts and bank transactions. This was already enforced in the 2003 Act. The new feature is the possibility given to the prosecutor to freeze a bank account subject to consultation for a period of three days in anticipation of a possible seizure. The bill also extends the concept of bank account to all financial products such as bank coffers, securities portfolios, life insurance collateral, etc.

These proposals appear to be consistent with the case-law of the Arbitration Court and respond to a real need in the current struggle against the financing of international terrorism.

Third, the use of photographic material as part of observations.

The Minister proposes that the use of a device for taking photographs should no longer be considered as the use of a means of technical observation. Currently, the use of traditional photographic equipment requires the permission of a magistrate. I also believe that the current law unnecessarily weighs the work of the police in this case. However, if the objective is to obtain — it is the case to say it — a view in a home, I consider it imperative to provide for the authorization of a magistrates and more ⁇ of an instructor magistrates; this is precisely what the bill that is submitted to us does.

Fourth, the authorization for indicators to commit infringements. On this point, I would like to respond to people who have let the press hear that indicators could be allowed to commit offences without conditions or without precise limits. This is not correct. Again, let’s see things practically. The main purpose of this provision is to cover the magistrate. Practice shows that in some important and sensitive investigations into terrorism and big banditism, the King’s Prosecutor is often faced with the delicate choice of allowing an indicator, under certain well-defined conditions, to participate in criminal acts committed in that environment, in order to maintain its position of information.

What can an indicator, which is often from the criminal environment or is related to it, do to be able to stay in this position? The practice, you know, designates the King’s Attorney to make this delicate decision. The bill aims to give it the legal framework, the necessary legal certainty when making such decisions. The King’s Prosecutor will have the possibility, under very strict conditions, to authorize an indicator to commit offences. However, I would like to emphasize that they must necessarily be proportionate to the interest of ⁇ ining the indicator’s information position and cannot, under any circumstances, directly and seriously harm the physical integrity of persons.

Furthermore, and this is crucial, these indicators will not benefit from an excuse or a legal cause of excuse. They could therefore, at the limit, be prosecuted later.

So, as we can see, this is not a whiteseing granted to indicators. It is true that if the conditions have been met by the indicator, there is a moral commitment from the King’s Attorney to not initiate prosecution; this is not new. But if the indicator does not meet its promise or goes too far, if necessary, it could be prosecuted. Moreover, this moral commitment does not prevent the potential victims from becoming civil parties.

It is worth noting that at present, the prosecutor’s magistrates are already taking their responsibilities by prioritizing public security. In other words, this bill – given this new element of indicators – essentially aims to provide magistrates with the framework and legal certainty they are entitled to.

Third, I come to the implementation of particular research methods in the context of the execution of a sentence. At present, in such a situation, no particular research method can be used. When a convicted detainee manages to escape from prison without committing an offence in the context of his escape, it is not possible to resort to special methods of investigation. The bill aims to solve this difficulty. During the committee work, my group had the opportunity to emphasize the lack of clarity of this provision. There is no reference to the offence for which the fugitive was convicted or to the sentence imposed. In some way, this is equivalent to saying that any person who abstains from the execution of his imprisonment sentence could be the subject of particular research methods. An amendment has been adopted in a committee to clarify that these methods, used in this framework, will comply with the conditions of application, form and procedure provided by law.

Fourth, I will talk about discreet visual control in a private place. The proposed provision aims to allow the King’s Attorney to authorize police services to carry out a discrete visual inspection at any time in a private place. Such authorisation may be granted only if the punishable acts would constitute a crime referred to in Article 90b §§ 2 to 4 of the Code of Criminal Investigation or were committed within the framework of a criminal organization. Therefore, as I have already mentioned, it is the requirement of proportionality. This measure can only be permitted if other means of investigation do not appear to be sufficient for the manifestation of the truth. This is the so-called subsidiarity principle.

Then there was a discussion about the private place. According to the draft text, it should be understood by "private place": "a place that is obviously not a domicile, a dependence own and enclosed or the premises used for professional purposes of a lawyer or a doctor".

The question of whether the definition of the notion of domicile is consistent with the case-law of the European Court of Human Rights has obviously immediately arisen, in particular with regard to business premises.

It is true that the European Court of Human Rights is based on the principle that certain professional or commercial premises enjoy the right to the protection of the privacy of the home. In the Niemietz judgment, the Court considers: “More generally, interpreting the words ‘private life’ and ‘domicile’ as including certain activities or premises would meet the essential purpose and purpose of Article 8: to protect the individual from arbitrary interference by public authorities.”

Specifically, not all business places must be protected within the meaning of Article 8. Indeed, these are certain places, certain activities with a professional and commercial vocation and under certain precise circumstances.

The broad interpretation of the European Court of Human Rights does not mean that the home and the place of work must be granted the same degree of legal protection. Thus, it can be deduced from this case-law that not all professional commercial premises should be systematically regarded as entering the notion of domicile. Special protection is granted to the premises used by doctors and lawyers. Obviously, what about trade unions, political parties or press offices?

To answer this question, the Minister referred to a decision of the Court of Cassation of 19 February 2002 which states: "There must be understood by domicile, within the meaning of Article 15 of the Constitution, the place, including the own dependencies contained therein, occupied by a person in order to establish his home or real residence there and where he has the right, as such, to respect his privacy, his tranquility and more generally his private life."

Article 8(1) of the European Court of Human Rights and Fundamental Freedoms recognises the right of every person to respect for his private and family life, his domicile and his correspondence. The right recognised by Article 8, paragraph 1, shall also include business spaces, provided that the activities carried out there are of a private nature or that confidential correspondence is kept there. It is only under this condition that these professional spaces are also protected by Article 15 of the Constitution.”

According to the minister, this decision implies that the headquarters of a party, a trade union or a editorial office could not be subject to a discrete visual inspection by the King’s prosecutor.

I acknowledge that there remain questions as to the scope of this judgment. Can we see it as a principle decision? The minister will reassure us, I hope, and ensure that journalists do not lose the benefit of the guarantees offered by the recent source protection law.

You might conclude. You’ve been talking for 45 minutes.

( ... ...

But when Mr. Courtois is gone.

I have finished soon, Mr. Speaker: I am coming to my conclusion.

Yes, in a wide range.

In conclusion, Mr. Speaker, the bill is not a text incorporating in our positive law the particular methods of research, as some have wanted to present it. These methods find their legal basis in the Act of 2003 subject to thorough examination by the Arbitration Court and the Court of Arbitration found that the methods provided by that law were not disproportionate to the aim pursued, namely to combat organised crime.

Furthermore, the bill constitutes a response that had to be delivered promptly to the arbitration court’s decision. The bill further clarified the conditions under which certain special investigation methods may be used while improving control in the context of information or instruction as well as judicial control, contrary to what can be read or heard in some. Recently, Guy Haarscher, a professor of philosophy of law, explained that two extreme attitudes toward terrorism could be isolated. The first is to support without too much scruple the idea that in the face of terrorism, we must give police forces enhanced powers without listening to the beautiful souls denouncing the danger of such measures for human rights. On the other hand, there are those who scream to fascism as soon as police powers are strengthened. They do not take sufficiently into account the need to protect the citizen from ⁇ cynical attacks deliberately targeting innocent civilians. These two attitudes, the whole repressive and the whole to freedoms, are unilateral. This philosopher of law invites us to recognize the responsibility of the government in the basic protection of our citizens against unlimited political crime and to support it in this endeavor. But this support must be accompanied by critical vigilance regarding possible deviations. But let us not be mistaken: the enemy is first terrorism, not the police!

Our democracy is in danger. The enemies of democracy have far greater resources than ours. Let us say it. Our future is to stop all those who, with exaggerated means, with weapons we do not have, endanger the values and respect for our democracy.

Mr. Speaker, Mrs. Minister, colleagues, Mr. Courtois, we now know for the future that the concept of time is a comprehensible concept.

It was reckable. There is no problem. Mr. Speaker, Mrs. Minister, colleagues, we have heard a lot about the introduction of the debate on the law on the special methods of investigation.

In preparing my presentation, I read an editorial contribution. I do not want to remind you of a few sentences. It was an editorial piece in a French-language newspaper. However, it summarizes very well what is being discussed in this case. It is also closely in line with what Mr Courtois said at the end of his speech. "La lutte contre le terrorisme justifie que tout soit mis et oeuvre pour contenir ce fléau d'abord et l'éradiquer ensuite." This implies a great political determination, a great consensus between all the representatives of the Nation, a positive concertation on the international plan and the mise and oeuvre of the means that impose the struggle against the gangrene of this beginning of the millennium.

Our security, our freedom, our democracy are at this price. We must accept that specific provisions are put in place, that exceptional instruments of investigation are made available to those who are charged with bringing order for our security. by

Trop d'images insupportables, trop les massacres d'innocents, trop la brutalité aveugle ont occupé nos colonnes et celles d'autres journaux pour qu'on se refuse d'admettre que nous sommes confrontés à une situation exceptionnelle qui peut justifier des moyens d'exception. Interesting is also a number of interviews, many of which have decreased, especially by the French-speaking press. If you then put the interviews of former investigative judge Vandermeersch from Brussels on 3 December next to the interview published today with Mr. De Valkeneer, now prosecutor in Charleroi, but formerly investigative judge in Brussels, then the contradictions are interesting. Therefore, the question arises whether the position of former investigative judge Vandermeersch today, after the debate in the committee and the making of adjustments, is still the same as the one he defended on 3 December. Their

I heard colleague Nagy quote from the interview with Mr De Valkeneer. You quoted a part. Let me say, “Morceau choisi.” Allow me to quote from the interview with Mr. De Valkeneer another piece, another "morceau choisi".

This is not to be done in the context of an information: in fact, there, all the recorded pieces must be in the repressive file.

Mrs. Minister, I will address your barely repaired suggestion.

You will probably refer to the beginning of the white card.

This is not a news magazine.

You can cite all editorials of the French-speaking press that do not go in the same direction as the editorial of "L'Echo".

A debate took place in the press with critical positions, arguments that I consider, for my part, valid and that one can move forward to support one or another thesis. I don’t see how your approach is more worthy than mine.

The only publication that should be read after this debate is the Moniteur belge.

Do you think there will be an opinion?

There will be a law.

It was ⁇ not my intention, Mrs. Nagy, to give a press release. You have specifically quoted Mr. De Valkeneer from the interview that appeared today, and you have quoted exactly that part that served your argument. I think that then it is logical that I extract from the same interview a passage that serves my argument. I immediately quote the source, you did too. This is an interview that appeared today. In my opinion, this is more relevant because the interview was taken down after the discussions in the committee were closed.

I just want to draw from that that, among other things, Mr. De Valkeneer, former investigative judge in Brussels, who, if I am not mistaken, led an investigation that has emerged in one of the terrorist processes in Brussels, says the following, and I quote: "Je suis assez surpris de constater à quel point le projet actuel est critiqué alors qu'il présente de plus grandes garanties que le texte initial". He also made statements regarding the inspection by the Chamber of Accusation. I will return to that later.

The Law on Special Detection Methods, which originally dates from January 2003, was only a legal confirmation of what was already applied in practice ten years earlier and was in the grey zone by all kinds of circumstances. Special detection techniques have been used in our country for years by the detection devices, in particular the police and the prosecutor’s office, based on two circulars from 1990 and 1992.

The legal basis was, in fact, only floating sand and insufficient as regards the legal protection and legal certainty of all interested parties. The test of the European Court of Human Rights could not really have been passed. Previously, the idea was that such methods did not belong to criminal law. We find similar methods already in 1720 which were applied by the bureau de sûreté in Paris.

The need to create legislation in the fight against organized crime is extremely necessary for several reasons. Belgium is, no matter how you turn it or turn it, not the most attractive country, but a very attractive country for the organized by its central location in Europe and the reputation as host of several European and international institutions accompanied by its relative economic prosperity.

The efficient approach to organised crime implies proactive investigation, otherwise one would not be able to focus on a criminal cooperative or the criminal organization.

In the classical ordinary detection method, one usually only takes into account the perpetrator responsible for certain acts, who is detected and prosecuted. Within the criminal organization, that visited person is regularly only at the lowest level and ⁇ in the lower regions, which in many cases leaves the leaders out of shoot. The traditional forms of detection also depend too much on the fact that the norm breaker acts individually and would only accidentally move to gang formation.

Annual reports show to a large extent that organized crime in our country has gotten foot on the ground. In 2000, there were 223 investigations on criminal organizations, fewer than the year before, but that can be explained by a number of reasons, including a better counter-strategy. In 2000, 1.577 suspects were involved in investigations related to organized crime.

Very recently, in the Chamber Committee on Justice figures published by the federal police, Directorate of Judicial Organizations. It shows that the number of dossiers using a special detection method has always been around 1,000 in recent years. In 2001, for example, when there was no legal framework, there were 1,123. In 2004, there were 907.

The increased attention to the fight against organized crime is being seen in several countries and also on international forums. More and more countries see organized crime as a threat to the established society. Such concerns make it possible to observe a certain convergence in the different standardization systems in the European countries. Recommendation 11 of the Council of Europe 2001 encourages States to incorporate special detection methods into their respective national legislation. In the European Union there is also an Action Plan to combat organised crime. Furthermore, in the Netherlands, on the basis of the results of the Van Traa committee, it was concluded that the legislature had laid down insufficient explicit legal rules on the investigation. Both the legislator and the judge therefore accepted too easily that the general detection authority and the general legal principles standardized the special detection methods. Meanwhile, this gap has been changed by a new law adopted by the Second Chamber on 26 November 1998 in the Netherlands and entered into force in February 2000.

Much has already been said and written about these special detection techniques. Transmission letters already regulated special detection techniques that arose from phenomena such as big banditism and hormones. The second interim report of the Parliamentary Investigative Committee on Organized Crime proposed already in 1998 to legalize the special detection techniques. The need for such a arrangement has existed for a long time. For example, in 2001 1,149 applications were received in connection with special techniques. This indicates the need in the field.

As for this bill, the following can be said. At the heart of the discussion on the so-called Special Detection Method Act is the respect for the rights of defence, or more specifically the sufficient respect for them. The Court of Arbitration has destroyed a number of articles in this regard because in some cases the rights of defence could not be fully guaranteed. Most of the problems therefore consisted in the creation of the confidential file. It is important to repeat again, colleague Courtois has also done so, that the Court of Arbitration recognizes the need for special methods of investigation. The Court of Arbitration states, among other things: "The legislator could judge that, in order to combat certain serious forms of crime, it was necessary to allow the use of the special methods of detection, and other methods that constitute a minor infringement of fundamental rights, from the stage of the detection investigation."

The confidential file as such does not appear to be the problem in this regard. The Court of Arbitration even agrees with the principle of confidential file.

In paragraph 37, 6°, it is written about this aspect and I quote: “The right to get acquainted with all the evidence of the prosecuting party is not absolute. In some, criminal proceedings may present conflicting interests, such as national security, the need to protect witnesses or to keep investigation methods secret, which should be balanced against the rights of the accused. In some cases, it may be necessary to keep certain elements of evidence secret to that party in order to safeguard the fundamental rights of other persons or a respectable public interest.

The Court of Arbitration demanded that all this be compensated by a procedure that would enable an independent and impartial judge to examine the legality of the procedure. The design provides for this role. She is, in fact, in front of the Chamber of Accusation, which, as Mr Van Parys has recalled, already has several control functions. Therefore, she also has the necessary expertise in this area.

There was no other option in this regard. I think, by the way, I have understood from the hearings held by the Senate last Friday that, when the question was asked to the legal profession which alternative was proposed in this matter, there was not immediately proposed an alternative.

Mr Van Parys, I think, by the way, I have understood that your criticism, which you expressed today on that point, concerned much more the bottle neck that the accusation chamber is at risk of hitting. Mr Wathelet criticized that, in the course of the investigation, the Prosecutor’s Chamber would be aware of the confidential file and, later, of the decisions on the merits.

It will have to be revealed, but a new organ seems to me to be complicated and difficult to find in the present file. The Prosecutor’s Office is not at all possible, since it is a party involved. The investigation judge is the person who applies the special detection methods. The Board consists of colleagues of the investigative judge. We are also at a higher level.

We believe that the chosen solution is the most practical. In doing so, the question must be kept in mind whether the researchers do not threaten to exaggerate their strategy through a legal regime to the criminal environment. It is in itself a very difficult balance exercise that will have to be carried out in this area.

On the concept of domicile, home, home — Mr. Maingain will soon be very thoroughly dealing with it, so I ⁇ do not want to deprive him of that pleasure — a debate was held in the committee.

Anyone who follows the report of the discussions in the committee will have found that our group at the heart of the Chairman of the committee held a very detailed presentation at the beginning of the discussions. The emphasis was placed on a number of points, including the insufficient definition of the concept of housing, the contradiction between the concept as defined in the European Convention on Human Rights, article 8, and as with us. We can and will all agree that it is all about an evolutionary term, an evolutionary terminology and an evolutionary character. Their

In that sense, I believe that, on behalf of my group, I can and must say that the questions formulated on behalf of my group at the beginning of the debate have been answered during or during the debate. With the answers we have received, we can take peace. It is interesting to note, by the way, that no later than last Sunday, a not insignificant figure such as Professor Van den Wijngaert in relation to these special detection methods said that in these, as always, a delicate balance must be found between, on the one hand, the sacred rights of defence, respect for a number of standards and respect for a number of provisions, and, on the other hand, the urgent need to be able to conduct a number of investigations with the greatest chance of success. Their

I would like to remind you once again that the Arbitration Court has not destroyed the idea of the special methods of investigation in the law itself. On its own, the most intrusive points of the Bomb Act remain. Only a number of provisions were destroyed, and mainly those relating to who can exercise control and how that control can be exercised. If we can regret something, Mrs. Minister – we have already said it in the committee – then that there has not been much time to conduct the whole debate. There will undoubtedly have been reasons for this, especially in view of the deadline of 31 December and the deadline that was ahead of us. Their

Our group may decide the following. In the struggle against the particular forms of crime such as organized crime and terrorism, it will always be a quest — I have already said — to find a balance between the effective fight against that crime and terrorism and, on the other hand, the safeguarding of the rights and freedoms of the people, as there are the rights of defence. It will always remain balanced on the sluggish wire. The special detection methods have existed for a long time and are necessary: I only refer to the numbers to demonstrate this. The Act of January 2003 provided that the practices were given a legal framework, thereby increasing the legal certainty for each interested party. The Court of Arbitration has also recognized the need for specific methods, and has said so in so many words. I have already referred to several passages from the aforementioned judgment.

The Court only stated that this balance in the original law was not yet fully present. In this context, I have already done this, we can refer to the discussion of the confidential file.

In our view, the design that is now present also seeks to restore the balance, which in some places was not or insufficiently present. This design provides nothing new with regard to the special detection methods. The main principles were already approved by a large majority in the previous legislative initiative. Whenever, even if some provisions go quite far, one will have to keep in mind that it is an exception scheme, which is linked to a whole set of conditions to strictly meet, in which not simply one or another technique can be applied by anyone. In order to tackle organised crime and related persons efficiently and efficiently, exceptional measures are needed and exceptional measures will be needed. No one should and should doubt the necessity of modern research management and the fact that the special detection methods in these are a necessary evil.

The last speaker is Mr. by Maingain. Then the Deputy Prime Minister will intervene. We will arrive at the scheduled time for the vote. Thank you again Mr. The vice president so much helped me this morning.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. First of all, I would like to welcome the work that has been done in the Justice Committee, under the leadership of our President. Indeed, the thorough examination of this bill in the Justice Committee has allowed to answer a number of questions. Moreover, if one wants to be intellectually honest, this bill probably does not deserve an excess of enthusiasm or an excess of indignity but it remains no less that it covers legal uncertainties that make it fragile in certain aspects, and I will address them.

First, I would like to make two comments. The effectiveness of the fight against terrorism is often referred to as the use of exceptional methods, and no one denies the need to use such methods. They are justified and, in addition, the debate does not concern the relevance of the device introduced by the law of 2003 as special measures of research. Indeed, more than one speaker pointed out, the particular research methods have been validated by the case-law of the Court of Arbitration. However, what honors a rule of law is, of course, to ensure the fight against terrorism or serious and organized crime with methods that are subject to strict control. This is where the heart of the debate lies.

My second observation is based on the consideration of Christian De Valkeneer in the "Journal of Tribunals", when he says: "In addition to the problem of loyalty, particular methods of research raise that of secrecy in the administration of evidence and thus collide with respect for the principle of contradiction. Modern criminal proceedings have been built around the paradigm of the transparency of evidence and its collection. The rights of defence and the observance of a fair trial therefore require that the defendant or accused be aware not only of the elements held under his responsibility but, furthermore, that he is not kept in ignorance of the manner in which these were collected.” This is what I think is the main point of our reflection in the debate that we are dealing with.

This is not a novelty in the project submitted to our reflection. This was already part of the law passed in 2003 and this was supported by the Arbitration Court which admits the confidential file principle.

All right and you will see that my speech will cover two new aspects of your bill. I said correctly that I did not question the very principle of special research measures and the legal framework given to them. But I question two very specific, innovative aspects in your project.

The first quite innovative aspect is Article 6: it gives the powers to the prosecutors to authorize, under certain circumstances and under certain conditions, the penetration into a private place. This is innovative and was not included in the 2003 law.

Let us understand each other well. Again, there is no reason for widespread suspicion that all prosecutors would be tempted to permit what the law does not allow. There are still possible disruptions, and this is what the legislature’s work consists of: how to prevent situations that would not be subject to strict compliance with the law?

I also remind, in order to be well understood, that the bill does not have the sole purpose of fighting terrorism; it is not enough to invoke the fight against terrorism in this bill to justify it. This project also enables the implementation of special methods of investigation or methods of investigation as provided for in this Article 6 for offences that may not be related to terrorism or to serious and organized crime; which everyone must be able to admit. Certainly, serious facts on the criminal level, such as the violent theft, the destruction of the harvest — already a little less serious crime for which the magistrate will not authorize particular methods of search under penalty to turn a new number of the "Gendarmes de Saint Tropez" — but fundamentally a panoplie of crimes that can be the subject of the use of the measures provided in this bill and which are therefore not only crimes related to the fight against terrorism or serious and organized crime.

What does Article 6 allow? It allows the King’s Prosecutor, under certain circumstances, and even in a purely verbal manner, to authorize the penetration into a private place if there are indications that facts subject to criminal repression could be established in that place.

Let us take a precise hypothesis, which is a novelty: it is no longer the only investigative judge who can do it, but he can still do it since power is competing. The prosecutor receives from investigators sometimes very brief information. For example, they think that in such a private place, which they acknowledge not to be a domicile, they could find facts justifying their introduction into the places. But, by definition, investigators do not know what they will find. They enter the place and do not see the facts. In this case, there will be no criminal prosecution since there is no punishable fact. by

Will the owner of the premises, according to the legal notion in the broadest sense, be informed? What are its remedies if, on the occasion of this visit made without his knowledge, other facts have been found that have enabled the police services to find useful information about the person, which will be exploited subsequently without the latter being informed of it at the time of the intrusion authorized by the prosecutor? Where is the control?

This is already the case now.

No, this is not the case at the moment! It is the investigation judge who must authorize this intrusion. However, a whole procedure is provided for the control of the work of the judge of instruction. In this case, the prosecutor will be able to close his eyes and may even decide that there is no need to continue.

The [...]

But if the investigation judge is not informed!

(...) It may happen that there are classifications without succession (...).

Yes, but at the end of a procedure! The procedure provides that if the investigation judge has authorized, as stipulated in Article 89ter of the Criminal Investigation Code, the penetration into a private place that is not a domicile, you will be informed, because you are aware of the investigation file at the end of the procedure. However, at the end of the information, you will never know it! If the Prosecutor’s Office does not request criminal prosecution, you are held in ignorance of a breach of privacy protection. Whether you like it or not, there is a breach of privacy protection as soon as there is penetration into a private place! And you will know nothing! Any other information collected by the police services in a private place will remain secret. Where is the control?

Mr. Maingain, I would like to say the following very briefly, because I did not actually intend to intervene.

The problem you outline, of course, also exists when a technique would be used that is not even regulated in the law at all. Nor would one know anything about it. In short, it cannot be prevented by this legislation that from time to time techniques could be used of which one knows nothing. I think that is more a matter of control in general over the operation of the police services, on the one hand, and on the other hand, the control through the hierarchy in the magistrates on the way things are organized. But one can never prevent one from knowing something that one does not know.

It is of course that, when there is a total illegality on the part of the police services, the control procedures must be multiplied, Mr. Borginon!

That is why I did not understand that we refused to organize a control, even a posteriori. The Public Prosecutor has this competence. This is not my choice in terms of assignment of competence in the judiciary. We give this competence to the Prosecutor’s Office. I wondered why it wasn’t given only to the Federal Prosecutor’s Office. It claims to fight terrorism, but it is given to all the parquets of the Kingdom.

Why hasn’t a complete control procedure been organised? From the moment the Prosecutor’s Office authorises, I consider that a judicial authority separate from that of the Prosecutor’s Office must carry out the control of the measure ordered by the Prosecutor’s Office. This is the balance of rights. It is not the authority that orders who must control. It is well known that when there is an investigative judge, the course of the proceedings is different from the one we know when only the prosecutor carries the information. That’s all I asked for, and that’s not included in the bill. by

I say that this is the guarantee for the citizen who has nothing to blame for seeing himself one day give the information that one entered unknowingly in a place of which he owns. However, it is not a small thing to enter a private place without the knowledge of the owner! This is a breach of privacy that requires complete control mechanisms to be established. This is what I asked in the committee, but my request was not answered!

There are substantial advancements in this bill compared to the much more lacunar mechanisms provided in the 2003 law. Therefore, I will never claim that this law is a net downturn compared to that of 2003. There are advances, but there are also critical aspects. by

You have entrusted, and I can understand you, to the Chamber of Accusations, the competence to control particular methods of investigation, especially infiltration and observation. You considered that it was a guarantee: it is a three-judge chamber, composed of well-trained magistrates and having good expertise in instruction, judicial information. Therefore, it is true that the Chamber of Accusations is a wise choice. by

But I cannot agree with you on the fact that you did not allow, in front of the accusation chamber, by leaving the judgment faculty to its magistrate — which is an additional guarantee — that the contradictory debate could be organized by all parties, public prosecution and defense. The law clearly states that you want the prosecutor and the defense to be heard successively. Under certain circumstances, I do not see why the Chamber of Accusations could not consider that it is appropriate to allow some and others to be gathered together to debate, not the content of the confidential file but the legality of the conditions ...

The [...]

I am talking about the Chamber of Accusations. I am not talking about the rules of procedure, but about the control of the special measures of investigation, that is, before the Chamber of Accusations before even going before the Chamber of Councils. I cannot understand why, in this case, since it is the Chamber of Accusations that will empty the assessment as to the legality of the implementation of the special measures of investigation ...

The [...]

Of course, you can question them later. Only the Chamber of Accusations has the confidential file. Only the Chamber of Accusations can verify, on the basis (...)

[...] confidential file (...) of elements that cannot be outside the contradictory file!

For the rest, the important thing is not to know the name of the person who passed his studio to the crystal, it is not to know whether the microphone was placed in the lamp or in the dish, but to know whether or not, the principles of subsidiarity and proportionality have been respected and, at this level, the debate will obviously be contradictory!

It will be contradictory, okay. In order to assess compliance with the principles of subsidiarity and proportionality and other legal conditions, the knowledge of the content of the confidential file is also useful!

In addition, this assessment is carried out by the Chamber of Accusations. I admit that it takes place at closed doors, but it must then be admitted that, in some cases, the defence may request a contradictory debate before the Chamber of Accusations, in the presence of the public prosecutor, and that it may question the latter about the motivation that led it to opt for the implementation of such particular measures of research. However, the bill does not allow this. I cannot understand why this faculty is denied to the defence!

( ... ...

Please use the microphone. You are not heard.

Mr. Maingain, maybe you want the defense to be warned, in the context of more serious cases, that an observation is taking place? Per ⁇ you are eager to get a contradictory debate on this point? What is the purpose of these particular research methods?

But not at all!

Go to the end of your logic.

But I will go to the end! We find ourselves in front of the accusation chamber when the information is finished and before there is direct citation! We pass through this chamber before the referral to the judge of substance, even before the settlement of the procedure, when there is a debate about legality! The contradictory debate could take place at that time and I do not understand why you reject it.

I agree with the analysis of Mr. De Valkeneer, published in today's "Le Soir". In his article published in the "Journal of Tribunals", he had given the following warning: "Attention! Control by an independent and impartial court is one thing; unilateral control risks being censored by the European Court of Human Rights.”

The Court of Arbitration states that it is understandable that certain elements are excluded from the contradictory debate.

The Arbitration Court says that certain elements may be excluded but it does not prohibit that, if necessary — and it is the Accusation Chamber that will assess — certain elements are subject to contradictory debate.

Having regard to the evolution of the case-law of the European Court of Human Rights, De Valkeneer is right to warn us. This jurisprudence follows the Act of 2003. The lawmaker of 2003 could therefore not know it at the time he legislated. This case-law is almost simultaneous with the decision of the Court of Arbitration.

The judgment of the European Court of Human Rights dated October 2004, states that attention must be paid to the fact that the defense must be able, even for particular investigative measures, to meet conditions of legality and to support the contradictory debate before an independent and impartial court. I regret that this faculty is not open in front of the Accusation Chamber. However, it would be useful to discuss it in front of it since the discussions are held there behind closed doors. If you fear leaks in a public hearing, you are not taking that risk in front of the Accusation Chamber.

When the lawyers were questioned by the Senate committee, they said that any information that would be brought to their attention would be the same as that of their clients. They added: “Our mission is to fully inform our customers. At no time could we hide such elements from them.” This point is therefore clear.

Then they said they understood the confidentiality of the file and did not ask not to know the human source, technique and tactics. They were then asked this question: "Since you agree with the existence of a confidential file, which is necessary since the lawyer communicates all the elements to his client, and since you have requested a contradictory debate, how do you reconcile this principle of the contradictory debate with the necessary principle of the confidentiality of the file?" In fact, if: they answered that in the United Kingdom, they were trying to reconcile these two principles otherwise.

With reference lawyers.

Special lawyers are responsible for this. The Court of Arbitration clearly tells us that this must be subject to the control of an impartial and independent judge. Then, in the United Kingdom, these lawyers are paid by the state for doing so.

We have already had this discussion in the committee and we will not be able to understand each other. My request is less aimed at allowing lawyers to get acquainted with the confidential file. Similarly, I do not ask that the lawyer be informed of the name of the indicator or the informant, nor of the identity of the infiltrating agent. It is not about this! I only ask that, since the debate on the legality of protective measures may take place in front of the Chamber of Accusations, it may take place by bringing together all parties. For now, however, your bill requires the Chamber of Accusations to hear separately and successively the public prosecutor and the defense. This is my problem! by

I never stated that I defended the point of view of the most demanding lawyers who go so far as to want to know the confidential file; it never seems to me to have been the request of the bars. Simply put, the contradictory debate, which is a principle recalled by the European Court of Human Rights, including for the verification of the legality of particular investigative measures, must be held by presenting all parties before the same judge. There may be a discussion between the points of view. This requirement is not satisfied.

In conclusion, and this will put you a balm to the heart, I’m more likely to join you in terms of protecting journalists’ sources. It may be necessary to supplement the text of the law of 7 April 2005, although the provision of article 5, if I have a good memory, is sufficient to prevent any risk of infringement of the law on the protection of sources of journalists. I was one of the authors, i.e. if I am attached to this principle. But, basically, your law will be called to be adapted and corrected very quickly. Jurisprudence will force us to do so. You probably made a first improvement — I do not deny all the work that has been done —; simply, I find that several protections have not been erected. For my part, I have well limited my criticism to two essential aspects, because of which jurisprudence will force us to review the law that we are going to adopt.

You have already given many answers. I especially think of the intense dialogue you had with Ms. Nagy. But you have heard all the latitude to answer earlier.

Mr. Speaker, although I have already intervened from my bank, I warn you now that I will not be brief.

If the time for your response ranges between half an hour and three-quarters an hour, I could move on to the discussion of the articles and have the vote proceeded around 18:00. It is at your convenience!

I will not be brief for a very simple reason. In no way do I want to evacuate a debate that took place in the Justice Committee before being conducted in this hall. For now, it takes place in the Senate but – and it is normal – it has taken a certain extent outside the parliament through interposed media. What is more normal, since this debate of society corresponds to a question of society? by

The central question is asked in the same way for each of us. How can we best protect our democracy, our public order values? How can we be as effective as possible in ensuring the safety of our fellow citizens against criminal organizations, whose dangerousness is no longer to be demonstrated, while at the same time ⁇ ining at all costs the right to privacy and the right to the protection of all our individual freedoms, rights which are the very essence of a democracy?

This debate deserves to be conducted decently. It is worth being precise, faced with the assessments of the European Court of Human Rights and the case-law emanating from the Court of Arbitration. This debate is not easy. Where exactly is the border in this matter? When do we swing? Is there a risk of security drift? Where is it located? Should we fear a risk of inefficiency of our security services? Where is it located?

These questions, Mr. Speaker, my dear colleagues, I have asked myself for months working on this project, rejecting some requests from our services, accepting others, examining with my team whether or not we would cross one of the two red lines. The bill that is presented to you and which has been amended by the Justice Committee is the result of a sincere reflection. This is also why I did not admit that one of the speakers heard by the Justice Committee confused the insult with the substantive debate.

Mr. Speaker, my dear colleagues, this project has been the subject of some, not necessarily in this hall, of a charge instruction, instruction that refused to hear the explanations, the answers and the justifications. This is why I have to be explicit about the criticisms I have heard and which have been repeated at will without always taking back arguments of response. by

And first of all, why such a project? Half-word, as if they were embarrassed, even the critics feel that this project is necessary. But I, I say it proudly: a rule of law, a democracy, is not a definitive achievement, it defends itself on a daily basis. The safety of our fellow citizens is not an anecdotal right. This is not a negligible or contemptible right. This is as important as freedom of expression, as the right to respect for privacy, as the right to a fair trial or as the right to live in a country that organizes the protection of rights, according to the Montesquieu principle.

Let us not be embarrassed or ashamed to defend the men and women of this country against insecurity; terrorist or criminal gangs use effective means without asking questions, having no fear of the consequences of their actions, using violence as a common mode of operation. Faced with these threats and violence, I refuse that our only answer is to plunge our heads into the sand: the policy of the oysters is not acceptable. Yes, we must act firmly against what threatens our security but with democratic means and controls.

Second motivation of the project: Regularly, when our agents on the ground succeed in beautiful interventions, when we see them act efficiently, for example during a hostage taking, congratulations fled from everywhere. The past operation, they fall back into oblivion. These special officers, these BTS officers as they are called, deserve better than that. Yes, these officers work on a daily basis with the danger in the truffles. Yes, they are the cornerstone of the protection of our society. Yes, at the same time, everyday, they ask themselves questions about the confrontation of rights and demand real democratic transparency. What are they allowed to do? What to do when they are facing corneal choices? It is easy to cover up the face and not see these difficulties of the field. We prefer to congratulate or vilipend depending on the outcome. I do not accept this. I prefer the courage of our common choices over the permitted and prohibited practices for these agents. This is the minimum we owe them.

Third, the answer to the Court of Arbitration. This Court is welcomed by all as the guarantor of our individual and collective freedoms. Having filed an appeal against the 2003 law, it cancelled some of its provisions and thus even forced us to review our work. Without repeating all the demonstration developed in the committee, I would like to emphasize one or another point on which the debate focused, starting with the confidential dossier.

In its judgment of 21 December 2004, the Court of Arbitration compared the confidential file extensively with the requirements of the European Court of Human Rights and with the case-law of the European Court of Justice, referring to the Edwards and Lewis v United Kingdom judgments of 22 January 2003 and 27 October 2004. The reasoning of the Court of Arbitration can be followed fully. The right of defence and the right to a fair trial are fundamental in a rule of law. The principle of equality of arms between the indictment and the defence, as well as the contradictory nature of the trial, including with regard to the procedure, constitute fundamental aspects of the right to a fair trial. However, the right to get acquainted with all evidence of the prosecuting party is not absolute. In some criminal proceedings, there may be divergent interests such as national security, the need to protect witnesses or to keep secret about investigation methods, which must be balanced with the rights of the accused. In some cases, it may be necessary not to disclose certain evidence to that party in order to safeguard the fundamental rights of another person or to safeguard an important public interest. In that judgment, the Court of Arbitration therefore clearly admitted the principle of confidential files on condition that a review is carried out by an independent and impartial judge. Compared to the 2003 law, we are therefore taking an additional step in terms of protection and democratic control. Indeed, we organize this control not by an impartial and independent judge as requested by the Court of Arbitration, but by three magistrates of the seat composing the Chamber of Accusations, which is ultimately the natural controller of information and instruction. I refer here, in particular, to article 235 of the Code of Criminal Instruction.

Regarding the confidential file — Mr. Courtois has widely alluded to it — investigative judge Franssen said during his hearing in the House and I quote: “It is time to demystify the confidential file and its secret character. Indeed, it is not correct to believe that everything is in the confidential file, so that the rights of defence cannot be properly exercised." I agree with the judge of instruction Franssen. I really think that many lawyers fantasize about this confidential file. The latter is obviously the exception and does not contain any evidence that is not brought to the knowledge of the parties. As the judicial authorities point out, it is in the interest of the prosecution itself that as many elements as possible are paid to the criminal case. I sincerely wonder what interest there would be to do differently. The prosecutor’s office and the investigation judge have an interest in paying as many elements as possible in the repressive file subject to the contradiction if they want to concrete prosecution for a person. The repressive case remains the rule. It shall contain all information relating to the implementation of the particular research method, with the exception of the technique used, the identity of the sources, agents and civilians who have contributed to the implementation of the method, and everything relating to the tactics used to implement the method.

If the particular method of search has allowed the recording of images, this recording is paid into the repressive file and will therefore be well subject to the contradictory debate. The minutes submitted to the criminal case, therefore subject to the contradictory debate, must also indicate the serious indications of criminal facts that justify the use of the particular method of investigation (proportionality principle), the reasons why the method is indispensable to discover the truth (subsidiarity principle), the name of the person to whom the method was applied, a description of the places, things or events observed as well as the period during which the method could be applied.

In short, the parties who will be heard at the time of the closing of the information or instruction will always be able, on the basis of the criminal record, to question the Accusation Chamber about the regularity of the particular method of investigation. It is therefore false to claim that lawyers will not have any relevant information on this subject.

I also remind you that the decision of the Chamber of Accusations, intervening during the settlement of the procedure, can, of course, be the subject of an appeal to the Court of Cassation.

The second part of my speech concerns the consequences of the cancellation of the provisions aimed at mini-instruction. For a whole series of particular methods, namely observation using technical means and discreet visual control, we had to make a choice following the decision of the Arbitration Court: control by an inquiry judge or control by the prosecutor. by

Our choice is clear, the judge of instruction is the judge by excellence for these methods. We therefore strengthen the role of this judge compared to 2003 — it is also surprising that no one takes him up — with one exception, namely the use of these methods in a private place not accessible to the public, which is obviously not a domicile or a place closed to the domicile.

This was the whole meaning of the debate we conducted in the committee. What is a home and what is a private place not accessible to the public that is not a home? The notion of home — most of the speakers have cited it — is not a fixed notion. On the contrary, it is evolving because it is necessary, constantly, to refer to the case-law of the Court of Cassation, which itself evolves in relation to that of the European Court of Human Rights. In this regard, the Court of Cassation ruled, in a judgment of 19 February 2002, which I emphasized during our debates and which I cite, that “the right recognised by Article 8, § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms also includes professional spaces, provided that the activities that are developed there are of a private character or that confidential correspondence is kept there.” It is only under this condition that these professional spaces are also protected by Article 15 of the Constitution.

The notion of domicile in the sense of the project that is presented to you will therefore evolve according to this jurisprudential interpretation, but also according to the developments of this jurisprudence on the European level.

Some MEPs, I will return, have questioned the possibility of implementing a particular method of research in premises used by journalists, by trade unions or by political parties. This possibility, let us recall, exists at the present time, but under very strict conditions, including the intervention of an investigative judge. These conditions are in no way challenged by the bill that is presented to you.

Let me be clear: this distinction operated in the project between home, locked place and private place inaccessible to the public that is not a home aims only to enable the King’s Attorney to implement MPRs in places such as hangars, such as those existing in the port of Antwerp, where stored containers too often hold hard drugs from Latin America, for example; it is also a garage box, completely isolated, where we can sometimes find gun covers.

The texts have been drawn up in such a way that there can be no doubt about the nature of the place before proceeding to the implementation of the particular research method. The King’s Prosecutor must be extremely cautious if he wishes to avoid subsequent cancellation of the proceedings. He shall be obliged, by other means of investigation, to ensure that the hangar or the isolated garage does not manifestly constitute a domicile within the meaning of the jurisprudence of the European Court of Human Rights and of the Court of Cassation; the slightest doubt would compel him to bring a case to an investigative judge.

I would like to return to the discussions we had recently with the Minister.

I could not understand that the prosecutor does not take all of his insurance before making a discrete visit to a place. For if this visit is carried out and after that the collected elements cannot be used because they have been used in an illegal way, it goes against the interests of the prosecutor. My problem is that with the notion of home that is so moving, and you emphasize it yourself, we will never be certain. If today the Prosecutor’s Office visits a place based on the concept of domicile as developed by the Court of Cassation, in the framework of subsequent discussions, the definition of domicile as defined by the European Court of Human Rights will be opposed. I could not imagine that the lawyer of the person who underwent these discrete visual observations does not raise the other definition than that of the Court of Cassation. by

Since the notion of home is extremely moving, we’re going to get it every time — and maybe that’s what we’re looking for, I don’t know — to rely on the broadest possible definition of home or private place to be sure that all the evidence that could have been obtained as part of a discrete visual observation can be used later in the investigation. This is the amendment we have submitted.

You could almost always ask yourself the same question. In all cases that you advocate as a lawyer, whether in criminal or civil matters, you refer to a case-law, and if possible to that of the Court of Cassation which is the Supreme Court in our country. Each time, indeed, this same case-law of the Court of Cassation may be challenged, in particular by another decision of the Court of Cassation.

On the contrary, if we do not work within this evolutionary notion of home, you limit the notion of home while our will is that it be as broad as possible. Our choice is clear: we do not want to restrict the notion of home but, on the contrary, to extend it. The decisions of the Court of Cassation have already widely extended it and, if necessary, it could go further depending on the evolution of the European Court of Human Rights, even if the latter gives a different definition of domicile than the Court of Cassation.

On the other hand, the European Court of Human Rights allows that particular intrusive measures can be taken in a home depending on specific circumstances. It cannot be inferred from the definition given by the European Court of Human Rights that this definition is the subject of a comprehensive protection. Definitely not. It gives a definition and then it says that, in particular circumstances, one can actually “ridden” respect for privacy when necessary.

That’s why we were entering into another logic that consisted in defining it precisely, as the European Court of Human Rights had done. It was about ensuring that investigators always act in accordance with the broadest possible concept of home to be sure that the elements they could have obtained are not rejected later.

We are at the heart of the discussion. Indeed, it is not about denying the possibility of an intrusive visit; this is not the subject of discussion. It is important to clarify the guarantees given. It is on this point that opinions differ. For my part, I propose the mandatory passage by the judge of instruction. The bill, in turn, provides for a decision by the prosecutor. I repeat, the debate is not about the possibility of performing a discrete visual inspection but on the procedure, on the guarantees surrounding this approach. It is necessary to avoid falling on a home when you should not, while the person — as other speakers have ⁇ — can not know the exact facts, etc. This is the heart of the discussion and the heart, if I dare to say, of the disagreement about the scope of the project.

Mrs. Nagy, you are quite right, this particular point was discussed in the Justice Committee. It was about whether or not one could conduct a discreet visual observation method in a place that has nothing to do with a home, under the control of a public prosecution magistrate rather than under the control of an instructional judge.

I explained why we are working in this direction. Some wondered why everything could not go before the judge of instruction. Others claimed that it would be much easier—these were members of the Senate Justice Committee. It happens that it is not so!

You should know that most repressive files are conducted as part of information. This is the rule in our country. As I said at the time of my bank, instruction comes only at the time of the reactive phase, that is, when the proactive phase is completed or when ⁇ intrusive measures are implemented in privacy. Otherwise, information is the rule. This is what I said in the committee. Our country has not provided for information and instructions to be carried out by prosecutor magistrates under the control of investigative judges. This characteristic has been the subject of extensive discussion. In my opinion, we will resume this discussion when we examine the Grand Franchimont.

Part of the instructions, called information, are therefore taken over by the magistrates of the public prosecution! Magistrates will be able to raise their files until the time when the instruction phase can begin. The whole question is whether the fact of being able to control an international drug trafficking — that is why I illustrated my words with the events of the port of Antwerp — still requires the intervention of an investigation judge or whether the prosecutors can carry out information that can truly carry out a proactive phase. The effectiveness of our services is at stake.

Mr. Minister, we are not going to retake the entire debate that took place in the committee but, fundamentally, the intrusion in a private place was a prerogative of the investigative judge; it is Article 89b of the Code of Criminal Instruction.

There was a mini-instruction.

No, this aspect was independent of mini-instruction! This is transferred to the parliament. I still cannot understand why the prosecutor would be more effective than the judge of instruction in this hypothesis. What would make the difference? You are talking about “proactivity.” In what way would the investigative judge not be proactive and available 24 hours a day? There are even specialized judges specializing in the fight against terrorism. So, if there are fears of a terrorist threat, the investigative judge could take the necessary measures. I still cannot understand where the added value of entrusting this matter to the prosecutor is.

Mr. Maingain, I did not intentionally talk about terrorism when talking about drug trafficking. It was much easier for me! Thus I answer your question. by

First of all, I want to make a little clarification, because I have heard many members questioning about the establishment of terrorism investigation judges. According to them, we would have multiplied the judges of instruction! Why Why ? Would we be afraid? No, we specialize in some instructional magistrates, we do not increase the frame of instructional judges!

In addition, Belgium has a good hundred investigative judges. They are not the ones who have the monopoly of instruction, I say it and I repeat it. Especially in the context of the fight against drug trafficking, it is much more effective not to touch at home, to pass through the information under the control of the magistrates of the public prosecution than to pay everything to the judges of instruction who, completely overcrowded, will no longer prove the indispensable effectiveness in cases of such importance. by

Now to the question of journalists.

For a moment, Mr. Minister, Mrs. Nagy wants to intervene again. I allow it! We are dealing with a good debate that lasted several hours after a few six or seven committee sessions.

The scope of the law is very broad. It does not primarily target terrorism and big banditism. It is much wider and there are some things that, in my opinion, pose problems in its scope but if we address the big topics, let it not be just terrorism! As a reminder, there have been seven terrorism trials in Belgium, which testifies to the effectiveness of the elements that already work. This is not terrorism, but the fight against drug trafficking. We are not talking about small business. Your examples refer to matters of some importance, I think. So, the argument that these prerogatives cannot be entrusted to investigative judges due to an efficiency problem is contradictory ...

No to No!

These are questions that may, at some point, involve other affairs and give rise to instructions that are not banal steps. Investigations lead to other suspicions, otherwise one would not be able to determine this and that place as a possible place, of which we are talking here. Again, the explanation does not refer to the substance. We are not talking about anything but a measure that the Arbitration Court said should be equated with a search, telephone listening and, therefore, subject to the authorization of the investigation judge.

When it comes to home, yes. Let us not be naive, for seven terrorism-related cases, you have dozens and dozens to deal with by the federal prosecutor’s office. In the case of drug trafficking, for the many cases brought before our courts and courts, how many are ongoing? Each year, we have one million files that are the subject of information or instruction; not "some" files. by

As for the scope of application, this is a real question that I will return to soon, because I understand it. And I will make a proposal for a working method in this regard in a few moments. by

Another issue is the protection of journalistic sources. We’ve talked a lot about it, and that’s normal. I will answer very precisely. Journalists feared that the project would undermine the provisions of the law of 7 April 2005. I will allow myself to read in length and broadness Article 5 of this law:

"Information measures - the prosecutor's office - or instruction - the investigating judge - such as searches, searches, seizures, telephone interceptions and recordings may concern data relating to the sources of information of persons referred to in Article 2 only if such data are likely to prevent the commission of the offences referred to in Article 4 and in compliance with the conditions defined therein."

Specific research methods are always decided in the context of information or instruction and therefore always fall within the scope of this Article 5. Furthermore, it is drafted in such a way that the measures of information or instruction are set out as examples. It is therefore clear that the will of the legislator aims to include in this provision all the measures of information and instruction. As I said in the Justice Committee, I have no problem with the fact that, as part of a revision of the April 2005 law, it is specified, all the information and instruction measures are well covered. But of course this is not necessary.

However, if we were to do so for this particular bill, I fear that we would legally harm the protection provided for in Article 5. This would mean that the latter is not sufficient to grant the protection of journalists’ sources. This would also imply that other provisions of the Code of Criminal Instruction, which dedicate to other forms of investigation that have not been expressly referred to in Article 5, such as the interception of mail or telephone identification, should still be amended.

by Mr. Wathelet adds that this is a special law. We know that, according to a general principle of law, a special law deviates from a general law. So you say that the law we present is also a special law. Obviously not: what we are doing is amending the Criminal Instruction Code. And what is more basic, within the framework of our legal order, than the Criminal Instruction Code?

Juridically, everything is very clear: under no circumstances does the device presented to you harm the provisions of the law of 7 April 2005 protecting journalistic sources.

We will not return to our previous discussion, even though it was very interesting. by

Measures relating to particular methods of investigation are all present in the Code of Criminal Investigation; this is what I have said and this is quite normal given that they can replicate in the context of different offences and that they must be present throughout the entire procedure. However, this forms a whole present in the Code of Criminal Instruction: when we talk about the accusation chambers, it is there. But it is specific: this procedure is attached to all particular methods of research, and it is in this that it is a special law.

This is not an exceptional law.

This is exactly the discussion we had just recently. For me, it’s an exceptional law and I’m not the only one who thinks so; many lawyers say the same. Of course, we can have a different position; in addition, it is backward. In my opinion, this is one because it concerns particular methods of research in itself, for which there is a particular procedure. This is an exceptional procedure.

This is also the reason why it is only in certain circumstances that one can derogate from the presence of an investigation judge, that there is a special procedure at the level of the Accusation Chamber different from that of the Rules of Procedure. It is in all its specificities that the procedure relating to particular research methods is an exceptional procedure.

Mr. Wathelet, you have a question. In my turn, I ask you one: yes or no, if it is placed here, does it deviate from the general character of the April 2005 law by thus reducing the protection of journalists compared to other methods of investigation? It is the same question!

Mr. Minister, this is another question. You yourself have proposed an element of compromise that could join us: amending the source protection law. I have to admit, as I said, that you have scored a point here. You could give me a few too! At the same time, on whether it is better to enter it here than in the source protection law, I can join you. by

This demonstrates how interesting the discussions on this bill are, that the points of view are evolving and should still evolve more, on your side as well as on my ⁇ !

Or maybe . In any case, if I support possible initiatives aimed at amending the law of April 2005, it will be for the sole purpose of reassuring, reassuring and yet reassuring. But Article 5 as submitted to the debate is of general character. It is an exceptional law that applies to any information and instruction measures provided for by the Code of Criminal Investigation, whatever. I think it is legally settled.

Monsieur le président, mes chers collègues, vous disais tout à l'heure qu'outre la nécessité de répondre à la Cour d'arbitrage, outre la nécessité d'assurer au mieux la sécurité de nos concitoyens et notre ordre démocratique, les agents sur le terrain demand also la transparence démocratique et l'efficacité. On this subject, two particular methods have been the subject of discussion. The first concerns the indicators of active civilians. First, as regards the commission of crimes by whistleblowers, the choice of the crimes is motivated by practice at the proposal of the police services and the judicial authorities. In fact, practice shows that in a number of important and high-level investigations on terrorism and organized crime, the Prosecutor of the King is more than once confronted with the question whether an informant who has already obtained information about a particular criminal environment or group of perpetrators may, under certain circumstances, also be allowed to participate in the criminal activity within that environment or group of perpetrators.

It is those practical cases, which, by the way, usually concern the priority to address criminal phenomena as included in the framework Integral Security of 30 March 2004, which were translated into the corresponding criminal qualifications on which the list in Article 90ter of the Code of Criminal Procedure was used as the basis.

The choice of the crimes listed in Article 90ter is not arbitrary. Exceptional research opportunities require exceptional circumstances. The crime for which the whistleblower provides intelligence and data is therefore not merely a crime, but only very serious crimes, in particular terrorist crimes, violations of international humanitarian law, genocide, crimes against humanity and serious crimes committed within the framework of a criminal organization. In particular, it concerns the taking of hostages, the illegal trade in weapons, the drug smuggling, the abduction and hiding of minors, the robbery of money transports, as well as human trafficking and human smuggling.

Unlike the policeman-infiltrant and the civil expert, the informant who is permitted to commit criminal offences does not enjoy a penalty-excluding basis.

De regering wil absolute vermijden dat die informant zou afglijden naar de figure van burgerinfiltrant. Dat blijkt ten overvloede uit de memorie van toelichting. Een van de belangrijkste verschillen — de memorie van toelichting somt er 6 op — is uiteraard het al dan niet een beroep kunnen doen op een strafuitsluitende verschoningsgrond. The infiltrator referred to in article 47cties of the Code of Criminal Instruction is a police officer and therefore a representative of the public authority. It is logical that he can rely on an absolute excuse cause. The civil expert has no connection to the criminal environment and provides punctual assistance at the request of an infiltrating police officer. That this person can also benefit from the same cause of absolute apology is logical. by

It is quite different for the indicator that has links to the criminal environment and which does not offer the same guarantees as the infiltrating police officer and the civil expert. I repeat it, that is why it is held in a very narrow legal carcass in which six strict legal conditions must be fulfilled in order for it to be able to commit certain offences. This is also the reason why he cannot in any case benefit from an absolute excuse cause. by

Another item mentioned in the committee, the camera. Mr. Speaker, you may not know, but the camera is a technical tool falling within the scope of particular research methods. In other words, this may sound surprising but you cannot take photographs without complying with the conditions set by the 2003 Act and those we define in the project that is submitted to you. In the bill discussion, we said that taking photographs in a house, at a home, according to the widespread definition of home, is sufficiently intrusive in privacy to be subject to the protections that are at the heart of the bill. On the other hand, taking photos in the street, in front of houses, in front of any place, one can imagine that this is not a particular method of research subject to the conditions provided by the bill. Attention, when you take photos systematically for more than five days, we have decided that this is a particular search method. However, in relation to what we see day-to-day and which is debated in parliament, such as the use of security cameras in our municipalities or for the protection against road insecurity, we can wonder what we are going against fundamental rights by allowing photos in front of homes or other places, within the broadest possible definition provided by the Court of Cassation.

Dear colleagues, you have repeatedly quoted Mr. De Valkeneer, since he expressed himself in particular in the committee, as part of an article in the "Journal of Courts" and again this day in the press. I would like to point out that this person stated in an article published in the "Journal of the Courts" that, I quote: "the notion of technical means had received a ⁇ broad acceptance with the consequence that the use of very usual instruments now falls within the scope of the Law on Specific Research Methods." It seemed interesting to me to emphasize it, after what I was able to read from a former instructional magistrate in an article appearing in one of our great newspapers, not so long ago.

This is, Mr. Speaker, dear colleagues, what I wanted to communicate to you regarding the judges of instruction committed to the fight against terrorism. I think it was expected by almost everyone. We know the figure of the judge of instruction in other surrounding countries. We know the famous judges, such as Judge Garzon, but what seems to me more fundamental, in addition to the specialization of our magistrates in very particular matters such as terrorism, is that the power of the federal prosecutor, which exists at the present time, can also be counterbalanced by the powers of the judges of instruction who will have a competence over the whole of our territory. I would also not like this justification to be omitted in the proposal that you are made to appoint specialized investigative judges.

As I said recently, there is a criticism that I can understand and that I share. It concerns the scope of the law. I would like to point out that this latter has not changed since 2003 and that the Arbitration Court has not raised any problem in this regard. On the contrary, in particular in relation to the active civil indicator, we have limited the scope of application. I could say that this is an interesting question. However, I do not see how it can affect us now. In fact, this question has been “wiped out” by the Arbitration Court. Nevertheless, I put it to myself by saying that the government and parliament should do their conscience examination, in particular with regard to the continuous heightening of articles such as Article 90ter. Yes, we have continuously decided that certain violations deserve special research methods. Yes, I think it is time to review this scope of application. Will it be easy? I said it and repeated it, no. Whether for the 90ter, or for the other provisions such as those contained in the 2003 law. It is not easy. I think you have accepted the explanation I have given on this subject. Under certain provisions, such methods may only be used for offences punishable by a minimum sentence of imprisonment of one year. Some believe that by doing so, the scope of particular research methods is greatly expanded. Other very serious offences are punished with the same minimum. Why Why ? Because gradually, under the most diverse pressures, especially under the pressure of emotion and the media, we have been collectively led to increase the minimum penalties for facts that have made one of the topics. Just recently, I was looking into my Criminal Code in order to give you an example of this differentiation of the seriousness of the facts and of non-conformity with the proposed punishment.

See Article 324 of the Criminal Code. It concerns the chapter of crimes and crimes against public security. We speak of an association formed with the aim of attacking persons and property and the criminal organization. Article 324 states: “Any other individual who is part of the association and those who knowingly and voluntarily have supplied the gang or its divisions with weapons, ammunition, instruments of crime, housing, pensions or places of assembly shall be punished, in the first case provided for by the preceding article, by imprisonment from six months to five years, in the second case, by imprisonment from two months to three years and in the third case, by imprisonment from one month to two years.”

Article 311 of the Criminal Code relates to offences relating to industry, trade and public auctions. Article 311 of the Constitution states: “Those who, by any fraudulent means, have performed the increase or decrease in the price of goods or goods or of public papers and goods, shall be punished with imprisonment from one month to two years and with a fine of 300 francs to 10,000 francs.”

All this to tell you that if we want to look at the scale of penalties, we must necessarily move forward in a general revision of the Criminal Code. I think, and I am even sure, that we could not do it serenely. If we venture in this work, we would result in a widespread increase in the minimum penalties. Each infringement would be discussed with supporting files. There are enough lawyers in this assembly to disclose a particular case which he has had to know and which justifies that one is ⁇ severe in one or another offence.

I think we need to work differently. It is necessary to work in the shell, trying as best as possible to circumscribe precisely what constitutes serious infringements to our public order, to our democratic values, to what can truly question the general security of our fellow citizens. by

What I have said and repeat here is that I want, without fear, to embark on this work. It cannot be done in a short time, it is impossible, but with the support of the Criminal Policy Department and several of our universities, I hope to be able to present to you, within a reasonable time, proposals for modification of the scope that, in addition, will correspond to the reality. Indeed, it is known that our agents are not numerous enough to be able to use particular methods of investigation or investigation in cases that do not relate to serious crime. But no matter, we know what we have; we do not know what the future reserves for us. It is better to be precise.

Here, Mr. Speaker, my dear colleagues, this intervention may have been a little lengthy, but if it cannot convince everyone of the well-foundedness of the project, I hope at least that it will have convinced of my sincerity in the search for this fundamental balance between the necessary security of our rule of law and the protection of fundamental rights and freedoms. The text that is proposed to you very precisely translates this balance which, of course, must be the guide of all Democrats.