Fiches Belges

Yes. Seizure for the purpose of securing evidence: Placing in the hands of Justice of any object, document or effects that were used, or intended to be used, for the commission of a criminal offence, that are the object or product thereof, that may help to establish the truth or whose use would be detrimental to the good conduct of the investigation, as well ass anything that is likely to be confiscated or restituted. In principle, measure executed simultaneously with a search (A.30). Alternative measure : freezing of assets (E.1) and freezing of bank accounts (E.2).

Art. 32 Directive 2014/41/EU (implemented by art. 2 the Law of 1st August 2018) - 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 an emprisonment 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 (article 23 ff.), 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 (art. 3 and 4 of the statute of 14th June 2001). - 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 (article 3 of the statute of 17th March 1992). Measure limited to a duration of two years, after which it must be prolonged.

As a general rule, EIO and requests of MLA shalll be addressed to the General State Prosecutor; however, possibility of direct communications between the competent judicial authorities, i.e. the Prosecutor or the investigating magistrate. Execution of the measure by the investigating judge, under the conditions set forth under articles 66 and 66-1 of the Code of Criminal Procedure. Transmission of the seized information authorized by the pre-trial chamber of the competent District Court.

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: Art. 2 of the Law of 1st August 2018 provides that the EIO might be issue with a view to provisionally preventing the destruction, transformation, removal, transfer or disposal of an item that may be used as evidence. 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 or where the measure would not be available in a similar domestic case. 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, a summary of the facts, and the link between the facts and the measure requested ; - where possible, the identity and the nationality of the person concerned; - where applicable, name and address of the addressee; - 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. As a matter of principle, measure carried out simultaneously with a visit to and search of homes, which must be executed between 6.30 AM and 8.00 PM, in application of article 65 of the Code of Criminal Procedure; exceptions in case of flagrante delicto and the legislation on drugs where the measure is possible 24 hours on 24. In principle, executed in the presence of the person concerned ; otherwise in the presence of a representant or two witnesses. Professional secrecy and the rights of defense must be guaranteed. If carried out in a bank: the concerned bank may not reveal the measure to its client or any third parties. Measure 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.