Fiches Belges

Yes. Observation, i.e. systematic watching of one or more persons, their presence or behavior, or of things, places or determined events, implying the use of technical means other than interception or tracing of communications lasting over a period of one month in case of offences punished by imprisonment of a maximum of one year. In practice, includes shadowing, photographic filing, video surveillance and GPS tracking. Exceptional measure to be duly motivated, limited in duration unless prolonged. Alternative measure: Room surveillance (A.56, please note that this alternative measure may also consist in installing a technical device in public places for the purpose of real-time audio recording, video recording or electronic data capture).

Among Member States having implemented the EIO: Art. 3 Directive 2014/41/EU (implemented by the Law of 1st August 2018). Please note that EIO Directive applies where the surveillance and tracking of a person starts in the territory of Luxembourg, acting as executing State. Conversely, the surveillance and tracking of a person started in the issuing State is carried on by Luxembourg executing authorities within their national territory on the basis of article 40 of the Convention implementing the Schengen Agreement (see Cross-border surveillance A.70). Among Member States not having implemented the EIO Directive: 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. Other statutory basis under multilateral treaties: European Convention on mutual assistance in criminal matters of 20th April 1959, approved by statute of 21st July 1976.

Audio or video recording implying the use of technical means ordered by the investigating judge, under the conditions set forth under article 88-1 ff. of the Code of Criminal Procedure. Observation by technical means fall within the competence of the public prosecutor or the investigating judge under the conditions set forth under articles 48-12 ff. of the Code of Criminal Procedure. Under the EIO Directive: The EIO shall be addressed to the General State Prosecutor. Transmission of information collected authorized by a decision of 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 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; a summary of the facts; confirmation that a lawful observation order or warrant has been issued in connection with a criminal investigation; precise information for the purpose of identifying the subject or object of the observation ; an indication of the criminal conduct under investigation; the desired duration of the observation; and where applicable, the provision of sufficient technical data to ensure that the request can be met. 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. Irrespective of the statutory basis, duration limited to one month; prolongation possible on a monthly basis as long as necessary. As regard audio and video recording by installing a technical device, maximum length of one year. Outcome of the measure to be put down in a written report.