Fiches Belges

- Hearings, in the pre-trial phase, are usually carried out by the police - if it is not required by the law of the requesting state, that the hearing is carried out by the investigating judge. A record is made of the interrogation, which is signed by the person being interrogated. - In general, a witness is obliged to testify. Only when specific circumstances are met, the witness has the right to refuse to testify (e.g. if he is a close relative to the suspect/person accused or if he is suspected of having participated in the criminal offence in question). Before the hearing, information must be provided on the conditions under which the witness may refuse to testify. - Experts and expert witnesses may be heard in basically the same way as witnesses. - Victims of a crime may bring someone with them to their hearing. This person is allowed to be present at the hearing and can only be excluded in exceptional cases (e.g. if this person is a witness himself - due to the legal requirement that witnesses shall not be present during the hearing of other witnesses). Under special conditions, the victim of a crime can also request to be professionaly accompanied by so-called psychosocial process support. - At the main trial/hearing the questioning of witnesses under 18 years is conducted by the presiding judge. The panel of judges, the public prosecutor, the defense counsel, the defendant can ask the witnesses under 18 years by the presiding judge. The presiding judge can allow a direct questioning of witnesses under 18 years by the panel of judges, the public prosecutor, the defense counsel and the defendant unless there is no danger for the well being of the witness under 18 years. - Hearings of suspects and persons accused are executed in accordance with the national law while taking into account special requirements of the requesting MS set out in the request. The person concerned will be informed of his right to be silent prior to the hearing. The summons before the public prosecutor/the court (not before the police) may include an admonition that the person concerned shall be brought before the public prosecutor/court in the case of non-compliance. - Victims and plaintiffs are not entitled to question the accused. However, their legal representatives are entitled to do so within the framework of the trial.

Directive regarding the European Investigation Order in criminal matters in relation to Member States which have implemented the Directive For the Member States which have not implemented the afore mentioned Directive: European Convention on mutual assistance in criminal matters of 20th April 1959 (art. 3 ff.) and its additional Protocol of 17th March 1978, approved by statute of 27th August 1997 ; Convention implementing the Schengen Agreement of 19th June 1990, as far as it is still applicable between the states concerned. Convention of 29th May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union, and its Protocol of 16th October 2001, as far as it has already been ratified by the states concerned.

Public Prosecutor´s Office

For Member States which have implemented the European Investigation Order: Where the request for mutual assistance and the annexed documents are not in the German language they must be accompanied by translations of the request and the supporting documents into the German language. For Member States which have not (yet) implemented the European Investigation Order: Where the request for mutual assistance and the annexed documents are not in the German language they must be accompanied by translations of the request, and the supporting documents into the German language, unless it has been agreed differently in a bilateral agreement.

Under the European Investigation Order: The decision on the recognition shall be taken within 30 days. The measure shall be carried out within 90 days following the taking of the decision on the recognition. For States not applying the European Investigation Order: No Deadlines.

- The assistance of participation of agents of the requesting State in the execution of the measaure is possible and permissible. It requires prior approval by the competent requested authority. - The request shall contain a summary of the main facts of the case. Furthermore it is advisable to set out the relevant questions which shall be asked during the hearing. Unless requested otherwise, the hearing will take place before the police. If the hearing shall take place before the investigating judge, this should explicitly be set out in the request.