Proposition 54K1966

Projet de loi portant des modifications diverses au Code d'instruction criminelle et au Code pénal, en vue d'améliorer les méthodes particulières de recherche et certaines mesures d'enquête concernant Internet, les communications électroniques et les télécommunications et créant une banque de données des empreintes vocales.

General information ¶

Submitted by

MR Swedish coalition

Submission date

July 8, 2016

Official page

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Status

Adopted

Requirement

Simple

Subjects

database data processing organised crime judicial inquiry information technology Internet criminal procedure telecommunications protection of communications terrorism

Voting ¶

Voted to adopt

CD&V Open Vld N-VA LDD MR PP VB

Voted to reject

Groen Ecolo LE PS | SP PVDA | PTB

Abstained from voting

Vooruit DéFI ∉

Party dissidents ¶

• Olivier Maingain (MR) abstained from voting.

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Discussion ¶

Dec. 21, 2016 | Plenary session (Chamber of representatives)

Full source

Mr Gautier Calomne and Mrs Goedele Uyttersprot, rapporteurs, refer to the written report.

Particular research methods are measures that, by definition, infringe on the fundamental rights of citizens. This text aims to modernise our legislation so that it is adapted to technological developments, since it is necessary to improve our legislative arsenal to enable investigators to have legal tools to fulfill their tasks.

Certainly, the exercise is difficult, and sometimes dangerous, given the necessary and fragile balance to be found between the needs of public security and the preservation of our fundamental rights and freedoms, such as the right to privacy and the rights of defence. The question is both simple and of crucial importance. Does your initiative modernize the research tools without jeopardizing the rights and freedoms of citizens?

We had the opportunity to hear the Human Rights League and bar orders as part of the hearings. We were all warned. Some did not chew their words, speaking of a police state to which we risk going if sanction and protection mechanisms were not organized.

I would like to remind you that on the occasion of Human Rights Day, some personalities have expressed their fears about certain projects in the fight against terrorism. Let us not fall into the trap that is placed on us by the enemies of democracy by legislating under the influence of emotion!

Mr. Minister, let things be clear, I want, like you, to fight crime and terrorism, but unlike you, I am not ready to sacrifice our individual freedoms. I am not ready to support a text without any guardianship, a text that extends the observation period to three months and allows law enforcement to enter the home of a citizen without his or her knowledge and to pick up objects.

I am also unwilling to support a text that introduces an extremely flexible regime for internet infiltration, especially since the control would be limited, under the pretext that it is far too heavy.

I am not ready to grant the possibility of searching a seized computer system, until the applications are opened, without the control of the investigative judge or even the King’s Attorney.

As I said at the beginning of my speech, this text, Mr. Minister, must present a certain balance. Unfortunately, this balance is not respected as the text introduces a disproportionate interference in the lives of citizens without providing the indispensable safeguards to prevent possible deviations.

These methods should be reserved for dangerous crime justifying such interference with the fundamental rights of citizens.

We are far from the necessary efficiency. Furthermore, it is known that these devices are intended to use very expensive techniques for the state that already struggles, today, to honour its debts.

Beyond the fact that the said measures are ultra-attacking to privacy, the draft harms the figure of the investigative judge by providing a dangerous shift of his powers to the prosecutor's office and the police. The powers of the latter will be substantially strengthened while the judicial control will be weakened. This is a trend that emerged with the pot-pourri II that significantly expands the powers of the King’s Attorney. The judge of instruction is the guarantor of the fundamental rights of citizens. Unlike the prosecutor’s office, it is impartial and independent. He is not bound by criminal policy guidelines and he does not receive orders from a superior.

We will also not forget, Mr. Minister, the last-minute amendments, filed by the government, leaving the investigation judge out of play for a prefixed period of 72 hours in case of a flagrant crime of terrorist offence. This is a new attack on the competence of the Investigative Judge. But this fits into the overall philosophy of your bill.

Let us act in case of flagrant crime, okay! But providing for an invariable period of 72 hours during which privacy-attacking measures can be ordered by the King’s Attorney is a disproportionate measure. We do not see the need to impose a deadline while the King’s prosecutor would still be entitled to act as long as the situation of flagrant crime persists.

Mr. Minister, we cannot accept everything in the name of the fight against terrorism and throw our fundamental rights into the shadow. This narrowing of the jurisdiction of the investigative judge is also not without consequences for the rights of the parties, which find themselves diminished. The information does not effectively offer the victims and suspects the same rights as inquiry, in particular no access to the file, no control of the accusation chamber, no possibility to request the completion of additional acts of inquiry.

This crackdown will also require greater control of the lawyer over the prosecutor’s office and therefore investments on his part during the investigation, which will inevitably have financial consequences for the justifiable. What will be reserved for the poorest, the least disadvantaged justiciables? This is once again a brake to justice, because we will ask for more acts made by their lawyers.

There is also a question of the professional secrecy of lawyers and doctors, which is addressed by providing that the data that has been intercepted can in the future be accessed by certain categories of people. Again, it is a pure regression, which will have consequences in terms of health and legal protection, since addressing professional secrecy means weakening the indispensable bond of trust between the citizen and the professionals concerned.

Therefore, this bill will contain a detriment of the jurisdiction of the judge of instruction, a set of measures attacking privacy, without judicial control, without custody, as well as a violation of professional secrecy.

In conclusion, Mr. Minister, this is a bill that precarizes our individual freedoms and that really constitutes a flagrant regression for our rule of law.

I thank you.

Mr. Speaker, Mr. Minister, dear colleagues, I think everyone will agree to consider that it is a necessity to adapt the Code of Criminal Instruction to the technological evolution. Terrorists or other criminals do not need laws to adjust their way of acting while obviously our police or judicial world needs this very useful and necessary framework of the law.

It is not, however, that we can do everything and anything. If adapting legislation is useful, it is still necessary to see whether the texts you propose us do not exceed the objective and do not go beyond what is sought.

I think the projects you have proposed exceed the objective. I think they carry a new attack and that is ultimately disproportionate – several actors have said it – to the fundamental rights of individuals which is another constant that we have to keep in mind when we legislate in relation to particular research techniques, such as those on which we are working.

Finally, as my colleague said at the moment, we observe in your document, Mr. Minister – this is becoming more and more recurrent – a slide that is dangerous and that, for my group and for me, is unacceptable. It is the shift of the powers of the judge of instruction to those of the prosecutor of the King without finally having a coherent and comprehensive view of what will still remain in the end, in your various reforms, of the role of this judge of instruction.

Regarding criticisms about your bill, the first concerns respect for privacy. The Privacy Protection Commission itself sets out the principle that there must be a balance between privacy, on the one hand, and the right of every citizen to safety, security or physical integrity, on the other. What she said, she said at the time your original text had been submitted. It could consider that little or enough of what was in question was, if necessary, admissible, but it did not know the amendments that were submitted in the course of work by the majority.

I recall that, in the eyes of the European Court of Justice and its case-law, interference in privacy must necessarily be proportionate in a democratic society. This is a difficult exercise to accomplish but qualified arbitrary interference must be avoided. The European Court of Human Rights has repeatedly recalled that any national provision must be sufficiently clear and precise to indicate to all and in an adequate manner under which circumstances it empowers the public power to resort to secret search measures.

This is the essence of your text that we are analyzing tonight: it is these famous secret searches that will be easier tomorrow because without the authorization of an investigative judge, either against the opinion of the Commission for the protection of privacy, or by harming the professional secret.

I will start with this last point, Mr. Minister. In your bill, there is the possibility of a secret search in the computer system, applied to lawyers and doctors (cf. Article 90 of the Act). This article is, in my opinion, problematic because it provides that data which are covered by professional secrecy – which is the cornerstone of the relationship of trust and of our right that must exist between professionals as particular as doctors or lawyers, for example, and their clients – will be kept at the transplants, though separately, and that it will therefore be possible, subsequently, to apply Article 90 septies, § 6, of the Code of Criminal Instruction. This is a serious infringement of the professional secrecy of lawyers and doctors who find in your text and in the exposition of reasons no acceptable and reasonable justification. It seems to me that communications covered by professional secrecy cannot and should not be recorded in a verbal process, nor are they a fortiori retained for a posteriori use.

Another element that is found in your project: this shift, which I call dangerous, from the powers of the investigative judge to the benefit of the public prosecutor.

The bill you are proposing is not the first one. Others before this, and others in the future, have been and will go in the same direction. The Human Rights League, as well as the Privacy Protection Commission, were not aware of the amendments that were submitted during the discussion in the committee. She already acknowledged, on the occasion of the hearings we conducted in committee, “that this project is part of a heavy trend that operates an increasingly clear and abundant slide of the prerogatives of the investigative judge, cardinal actor of our criminal procedure since it is independent and impartial, and that it conducts its instruction on charge and discharge, in favor of the prosecutor’s office and the police forces, which, they, are not independent, and whose legal mission is fundamentally different since it aims at the investigation and repression of crimes and their perpetrators. This slide is very questionable. He also appeals to the Council of State.”

Yes, Mr. Minister, during our work, you answered, and as usual, you said that it was false to say that the investigative judge would lose his competence. They are reoriented, say you, in such a way as to allow him to be interested in the essential things; even in the case of research methods, he will retain certain prerogatives to authorize or oversee these measures.

This bill must be read in parallel with the abolition or rather with the drastic reduction, which you announce, of the function of judge of instruction in our judicial order. This evolution of the function of the judge of instruction risks to break the fragile building, though complex, which aims to find a balance between the different prerogatives of the actors present, and this in order to ensure respect for the fundamental rights of the citizen in general, and that of the principle of proportionality, legitimizing interference in these rights.

You repeat to our envy that you cannot be blamed for the removal of the investigation judge because the consent of the latter will always remain the same in the case of searches, telephone listening; that every individual measure likely to be taken must be ⁇ motivated. You will allow me to doubt. I do not agree with you in this way of formulating things.

The measures decided in your project go too far. They come back, for example, to carry out searches – even if it does not have its name – without mandate or control of the instructor magistrate. This is what is called secret research in computer systems. The Chairman of the Investigative Judges has again stated before our Committee Terrorist Attacks that they will be constantly called to re-take decisions and that they will have to do so without having the control of the files since they will no longer be at the initiative and follow-up of the investigations.

In matters of measures of interception, search, observation or infiltration, the judge of inquiry must remain the one who orders them. It is true that suspects often change the phone without stopping. But in the model you propose, the investigative judge, who is no longer at the base of the investigation but whose intervention will be requested whenever it will be necessary, will have to stop working on his files, take a minimum knowledge of what is happening and give the required permissions. It will eventually crumble under administrative duties while your will is precisely, as far as possible, to discharge all actors in the judiciary world from those tasks where they waste their time because they only give permissions or visas that are of pure form.

That’s what you’re going to do with your new system. There is always a need for an investigative judge, who does not know the subject matter. I’m not sure if we can make a profit in time or money. Distracting thus the judge of instruction also systematically will not entail any significant gain.

The respective roles of the Prosecutor and the Investigative Judge are thus questioned. I hope that this redistribution will take place within the framework of a comprehensive reform on which we will be able to decide once we have known all the supporters and enders; but not, as you have unfortunately become accustomed, Mr. Minister, by partial and progressive impeachment. In this case, we are witnessing a real detracting of the competences of the investigative judge for the benefit of the prosecutor’s office without any more effective control. Its functions are insidiously undermined. Clearly, that is what constitutes the framework of your action and your political will. Avocats.be stated: “It is observed that the investigative judge becomes a kind of instrument of a criminal procedure that he no longer controls.” This was the analysis that we formed at the beginning of the work in the committee. These made it seem that you were not satisfied with these initial measures, but that you loaded the boat on the way. Amendments were submitted by the majority to give the prosecutor’s office more powers in the context of particular investigation methods: 72 hours in the case of a flagrant crime, without the intervention of an investigative judge. Not only the period, but also the scope of application are considerably extended.

Fortunately, we have had the opportunity to send these amendments to the Council of State. However, it has confirmed that researching a computer system constitutes a serious interference with the right to privacy. This project transfers, in this area, important competences from the investigative judge to the public prosecutor. These prerogatives, however, occupy an essential place in the proportionality control that the European Court of Human Rights and the Constitutional Court carry out in this case.

In response to these various remarks and observations, you considered, Mr. Minister, that it was neither healthy nor normal that we intended a sort of trial at the public prosecutor, considering that he was not independent or, in any case, that he was not as independent as an investigative judge.

Of course, the prosecutor’s office is independent, but it does not have the same independence as an instructional judge who trains in charge and discharge. This will end up being an exhausted formula, but it is still good to repeat it before it disappears. I think you cannot deny that the Prosecutor’s Office is organized in such a way that there is a hierarchy and that the Minister of Justice, in the end, also has an authority over the Prosecutor’s Office, even if only through the positive injunction. Therefore, authorizing the King’s Prosecutor to be able to order, in the event of a flagrant crime, all the measures referred to in Articles 88bis and 90ter of the Code of Criminal Investigation without confirmation by an investigative judge, is to exceed the limits of a fair proportion between the damage and the acts of terrorism that we intend to combat in relation to the issues of respect for the rights of defence and/or privacy. We simply demand that beyond the prosecutor’s office, a control be organized. And who better than a judge of instruction can be able to do so?

The amendment also increased the power of the King’s Attorney to try to prevent further attacks. It may be admitted that this measure is reasonably justified but the real question to be raised is whether this justification is relevant for each of the terrorist offences provided for in Article 137, §2 and §3 of the Code of Criminal Investigation, in particular within the framework of §3 where the threat itself is considered a terrorist offence but cannot be assimilated purely and simply to an attack that would justify the measure that the King’s Prosecutor may take.

The majority also wished that the 72-hour period would begin at the time the offence was committed, which again leaves a broad discretion and action power to the King’s prosecutor without the investigative judge being forced to intervene.

Here, Mr. Minister, is the main point of my criticism.

However, in the event that the criteria you provide for the modalities of action, in particular by the prosecutor's office or police authorities, were not met, no sanction of invalidity comes to hit these breaches. This criticism was relayed by the various actors we heard during our work.

You wiped out this criticism by deciding that public opinion does not admit radical nullities – of course, I can understand it – but public opinion does not always comprehend the set of arcanas of law that protects society and citizens and which, at some point, can protect one who considers them not necessary or useful. You also told us that the Antigone jurisprudence is largely sufficient to consider nullities if the necessity is felt.

I think it would have been essential to provide for this sanction of legal nullity in the event that the conditions indispensable for research, which you propose to us by your bill in the computer system "secret searches", were not met. This was also a comment from the representative of the OVB. As for the rule of law, in the absence of a sanction of nullity, the police are free to act without complying with the legal prescription.

My group does not want to be associated with such a derivative. Therefore, Mr. Minister, we will ⁇ not support you in this text despite the initial desire to adapt the capacity of intervention of our police forces and the judicial world to the new technologies to which the mafia circles are better trained.

If we can understand this goal, you have taken advantage of this bill to go far beyond and consider opening doors that lead to deviations that jeopardize our rule of law and the proportionality between respect for such fundamental interests as respect for privacy and protection of public or physical security and integrity.

Mr. Speaker, dear colleagues, on the general criticism of a too large shift of competence to the prosecutor’s office at the expense of the judge of inquiry, I believe that the bill contains only one element transferring part of the competence to the prosecutor’s office, namely the non-secret search in a computer system. In this, the moves concern only the extension to the cloud or to external servers. It is only the possible extension without additional false key that is targeted.

To this, it is necessary to add the submitted amendment, which concerns the very particular situation of a flagrant crime of terrorist attack. We proposed to create, for the prosecutor’s office, a temporary competence to order a telephone listening.

These are two important changes that I do not want to minimize. But I really don’t see how one can talk of a “general movement” in the bill transferring powers and control to the King’s prosecutor at the expense of the investigative judge.

I know, Mr. Brotcorne, that you are not in favor of a modification of the complex balance, dating from the nineteenth century, between the judge of instruction, on the one hand, and the prosecutor, on the other. We have had a lot of discussions on this. Let’s be clear: for now, there is no text on the table on this subject.

But in any case, I want to point out to you that my aim is that the investigation judge, who would authorize certain special means of investigation in a given investigation, would always be the same, so that he could familiarize himself with the case, ⁇ better than now, because he will have more time and more distance to judge the case. I did not want to use the word “independence”. I was talking about “distance.”

Compared to other criticisms that you have formulated, Mr. Brotcorne and Mrs. Özen, with regard to the computer system seized, which for the investigation or search would become an autonomous competence of the police, in the present case, it is nothing more than a consolidation in the law of the case-law of the Court of Cassation. In its judgment of 11 February 2015, it found that “the exploitation of the memory of a mobile phone, including the messages stored therein in the form of SMS, is a measure resulting from the seizure, which can be carried out as part of an information without other formalities than those provided for this act of investigation”.

Is it justified to create additional possibilities for the Prosecutor’s Office as regards the right of sight for the King’s Prosecutor? Yes, as closed objects can be opened. A request for a search may arise, but with knowledge of the facts, with regard to the suspected person. If no loadable material is found, as part of the exercise of this right of view, things not found can still be used as landfill items by which a search becomes superfluous.

As regards the extension of the observation period to three months, the practice has shown that the one-month period is extended in 65% of cases by the instructional judge with the implication of problems and administrative burdens. The aim would be to establish a maximum period of three months. Initially, the investigation judge may decide to take a shorter period and grant a period of only two months or six weeks, for example.

I would like to conclude with a scientific progress that could feed our reflection in the definitive Code of Criminal Instruction. I recently attended the defense of a thesis, in Leuven, on all formulas of inquiry. The doctoral student suggested the use of a generic term for survey. We tried to go a bit in that direction, but we were afraid to sin against the principle of legality and insisted on each type of investigation involved.

In terms of proportionality, which you strongly insist on, the instance that should allow the inquiry could be better appreciated if the inquiry was defined in a rather generic manner and not in relation to an object. In addition, a generic definition would make it easier for us to keep track of technological developments. Actually, every time technology changes, we are obliged to change the Code of Criminal Instruction.

Anyway, this is just an idea I got when reading the doctoral thesis defended by Charlotte Conings. I highly recommend reading this article, if you have a little patience and a little time.

Mr. Minister, I wish, once again, to make a comment that I have already had the opportunity to address you, many times, during our numerous committee meetings.

I disagree with you when you say that there is only one element of sliding from the investigative judge to the prosecutor’s office or the police.

Despite your successive slides, there is always only one sliding element. If you want to change the philosophy of our judicial apparatus, this is no problem for me. But, in this case, let us take the time to discuss and debate in depth the vision that one wants to give to the judge of instruction and the slide that one wants and to which power. There was the expansion of mini-instruction, etc. That’s why I’m talking about “grignotage.” This is the way to proceed that is not healthy at all.

Mr. Minister, we have a little feeling that you do not dare to assume the situation you consider for the judge of instruction. It is true that in this pot-pourri there may only be an element of sliding the powers or competences of the judge of instruction to the prosecutor’s office, but there has been in your previous pot-pourri. What is reproached to you, Mr. Minister, is indeed, by successive touches, to crush this power of the judge of instruction without having a general view.

You tell us, and you have just repeated it again, that there is no text that says that the investigative judge will disappear. We have already heard your experts regarding the Criminal Code and the Criminal Instruction Code, which consider the creation of the Investigative Judge rather than the Investigative Judge. Somewhere there is a political will. There is a conductor thread.

The reproach we regularly address to you in the committee is why we do not address this problem once in its entirety to know what we are going towards. Per ⁇ we will say, at the end of our work, that the proposed option can be followed, but today, we do not face it. We go there by successive touches without knowing exactly – and you repeat it to us at the envi – whether or not, in the end, we will move the figure of the judge of instruction.

If the investigative judge remains what he is today but is deprived of a whole series of competences on the occasion of successive texts, what will be left of it? If you want to go to the judge of instruction or even to the complete disappearance of the figure of the judge of instruction, what you propose here may no longer make sense in a year or two, if you go to the end of your reform plans. All legislation must be reviewed. Too often, compared to your proposed changes on which you could be followed, one does not have that overview to be able to discuss them correctly and consistently.