Fiches Belges

Yes. Coercive measure whereby a judicial or a Police authority enters a place of residence or its dependances in order to gather any existing evidence of a committed offense or to fortify the charges with respect to an offense that has been reported. In principle, complemented by a seizure of assets (see also Freezing of assets, E.1). Scope: all offences sanctioned by imprisonment. Alternative measures: See Freezing of Assets (E.1). Alternative measure for obtaining information on bank/financial accounts and operation: see (A.22).

Among Member States having implemented the EIO: Art. 3 Directive 2014/41/EU (implemented by the Law of 1st August 2018). Among Member States not having implemented the EIO Directive and non EU countries, statutory basis : Statute of 8th August 2000 concerning mutual legal assistance in criminal matters, as amended. The facts underlying the request must qualify as "crimes" or "délits", punishable by imprisonment of a maximum of at least one year under Luxembourg law and the law of the requesting State (art. 5 of the Statute of 8th August 2000). Unless an international convention is applicable, in particular one of the following: - European Convention on mutual assistance in criminal matters of 20th April 1959 (art. 3 ff.), approved by statute of 21st July 1976, and its additional Protocol of 17th March 1978, approved by statute of 27th August 1997. The facts underlying the request must be sanctioned under Luxembourg law and the law of the requesting State by a maximum prison sentence of at least one year or by a severer sentence. Under the additional Protocol, criminal fiscal offenses must qualifiy as fraud under article 396, paragraph 5, of the Tax Bill ("Loi générale des Impôts"), or under article 29, 1st paragraph, of the Statute of 28th January 1948 concerning an equitable and accurate collection of registration duties and inheritance taxes. Mutual legal assitance is subject to the principle of opportunity. - Convention implementing the Schengen Agreement of 14th June 1985, approved by statute of 3rd July 1992, and its Protocol of 24th June 1997, approved by statute of 8th April 1999 - 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, approved by statute of 27th October 2010 - Benelux Treaty on Extradition and Mutual Legal Assistance in Criminal Matters of 27th June 1962, and its Protocol of 11th May 1974 The facts underlying the request must be sanctioned under Luxembourg law and the law of the requesting State by a maximum prison sentence of at least six months or by a severer sentence. - Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime done at Strasbourg on 8th November 1990, approved by statute of 14th June 2001, as amended The facts underlying the request must be qualify as criminal offenses under Luxembourg law, the measure must be provided for under Luxembourg law by the Luxembourgish judicial authorities in an interal analogical case and the goods to be seized must be subject to confiscation. - United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on 20th December 1988, approved by statute of 17th March 1992, as amended The facts on the basis of which confiscation is sought or has been ordered must qualify as an offense under Luxembourg law and the author ought to be punishable in Luxembourg if the fact had been committed there (Statute of 17th March 1992, art. 3). Measure limited to a duration of two years, after which it must be prolonged.

The EIO shall be addressed to the General State Prosecutor; as a general rule, execution of the measure by the Investigating Judge pursuant art. 65, 66 and 67 Code of criminal Procedure; upon request of the State Prosecutor, decision of the Pre-trial Chamber of the competent District Court authorizes the transfer of documents and information collected to the issuing State. In all other cases, as a matter of principle: request to be addressed to the General Prosecutor in application of statute of 8th August 2000; direct communication between the competent judicial authorities is also possible. In mutual legal assistance, the measure will be executed by the investigating magistrate under the conditions set forth in art. 63 ff. of the Code of Criminal Procedure.

EIO written or translated into French, German or English / Translation of the letters rogatory and attached documents into French or German; English commonly accepted.

As a general rule, decision on the recognition or execution of the EIO within 30 days of receipts. Decision of the Pre-Trial Chamber of the competent District Court within 20 days following the action taken by the Public Prosecutor (without prejudice of any possible appeal)

Under the EIO Directive : Luxembourg authorities comply with the formalities and procedures expressly indicated by the issuing authority unless such formalities and procedures are not contrary to the fundamental principles of Luxembourg Law. Besides the grounds of non-recognition/execution provided under art. 11 Directive 2014/41/EU, recognition and execution might be refused where the measure would be contrary to the fundamental principles of Luxemburg Law. Under MLA instruments, to be requested by international letters rogatory. Contents: - an indication of the authority making the request; - the object of and the reason for the request; - time and place of perpetration of the offence, and a summary of the facts; - where possible, the identity and the nationality of the person concerned; - where applicable, the identification and address of the adressee; - an indication of the criminal conduct under investigation, including the statutory basis and the sanctions attached thereto; - any specific procedure requested by the requesting party. In principle, the measure must be executed between 06.30 and 20.00, in application of article 65 of the Code of Criminal Procedure; in case of flagrante delicto or under the provisions of the legislation on drugs, the measure can be executed 24 hours on 24. In principle, the person subject to the measure is present; otherwise the measure is executed in the presence of a representant or two witnesses. Professional secrecy and the rights of defense must be guaranteed throughout the measure. If the measure is executed at a bank, the latter may not inform its client or third parties thereof. The measure if formalised in a report. Execution of the measure in conformity with the procedure applicable in the requesting State : possible as a matter of principle; to be assessed on a case by case basis. Relevant formalities to be expressly indicated. Assistance or participation of agents of the requesting State in the execution of the measure: Possible as a matter of principle, to be assessed on a case by case basis.