New investigatory measures in the fight against terrorism and serious crime

On 21 March 2016, a bill concerning supplementary measures for combatting terrorism was submitted in order to provide authorities more means and opportunities in the fight against terrorism and serious crime. 

The new measures aim both to broaden search of premises and telephone tapping, and create a joint databank.

After a very brief debate on 14 April 2016, the bill was unanimously passed by the Chamber of Representatives. The measures envisaged in the bill will be useful in the context of the investigation of terrorism and organised crime. 

However, taking into account, inter alia, the right to privacy, the manner of implementing the measures may lead to arguments. Both the Privacy Commission and the Council of State have expressed objections, which are insufficiently taken into account by the bill.

1. Search of premises

To date, the Search of Premises Act stipulates that no search of premises may be conducted in a public place after 9 p.m. and before 5 a.m. 

This ban does not apply if:

• a special legal provision permits the night-time search of premises;
• a magistrate or an officer of the judicial police proceeds to the place in question in order to establish a crime or misdemeanour at the time of its perpetration;
• permission has been obtained from the person who has enjoyment of the place or from the victim of assault and battery committed by his/her partner;
• a call is made from that place;
• in the event of fire or flood.

Except in these cases, the police services are not permitted to conduct a search of premises at night. 

Allowed if related to terrorist crimes or investigation of criminal organisations, if there are serious indications that ...

On the basis of the new bill, night-time search of premises will indeed be possible, if this search of premises is related to terrorist crimes or investigation of criminal organisations, if there are serious indications that firearms, explosives, nuclear weapons, biological or chemical weapons, or hazardous substances may be found there.

This change gives authorities broad discretion to search premises at night. In its advice, the Council of State proposed linking an additional justification by the examining magistrate to the order for a night-time search of premises. 

This would provide the added guarantee of appropriate use of this investigatory measure. 

The government believes that this kind of justification is unnecessary, and may even prove counterproductive. Nevertheless, a motivated decision by an examining magistrate would provide the necessary guarantee of protection  of  the  inviolability  of  the  home.  

After  all,  the  night-time  search of premises is  a  further limitation of this basic right that can only be justified in exceptional cases.

2. Telephone Tapping

2.1 Extension of the number of crimes for which telephone tapping can be ordered

One of the special investigatory measures available to the examining magistrate is telephone tapping. Although there is a general ban on listening-in to private communications, the Criminal Code foresees a few exceptions, which permit use of telephone tapping in the framework of an investigation.

As telephone tapping is an exceptional measure, a number of conditions must be met before the examining magistrate can use it.

Telephone tapping shall only be justified, if the investigation requires it, and if the other means of investigation are not sufficient for ascertaining the truth. Article 90 §2 to 4 of the Criminal Code contains a limitative list of the types of crime for which telephone tapping can be ordered.

The new bill substantially increases the number of crimes for which telephone tapping can be ordered, to include breaches of the Weapons Act, such as acts involving prohibited weapons, carrying a freely-available weapon without a permit, etc.

Substantially increase of the number of crimes for which telephone tapping can be ordered

In this context, the Privacy Commission observes that the extension of telephone tapping is too broad. Telephone tapping should be limited to serious forms of criminality. Therefore, imposing this measure on persons suspected of carrying an over-the-counter firearm, without further justification, is excessive.

2.2 Telephone tapping no longer invalid if order was not signed by examining magistrate

Although this bill does not change the manner in which telephone tapping must be conducted, it should be mentioned that the Potpourri II Act of 28 January 2016 scrapped the sanction of automatic nullity. 

Previously, the measure was invalid if the judgment of the examining magistrate imposing the telephone tapping had not been signed, or did not include justifying reasons.

This is no longer the case. 

If the formal requirements are not respected, this does not necessarily result in the invalidity of the measure. The evidence arising from a telephone tap can still be declared invalid if the court judges that the breach of the formal requirements results in the unreliability of the evidence obtained.

2.3 …. Excessive interference in private life?

The extension of telephone tapping, combined with a relaxation of the sanctions for unlawfully-conducted telephone tapping, raises the question whether this may not lead to excessive interference in the private life of citizens.

3. The Setting-up of a Databank

The bill foresees the establishment of a shared databank, which would give various different services access to the personal data and information stored in this databank.

The purposes for which the information shall be kept are of a strategic, tactical and operational nature. Here, the Privacy Commission observes that these purposes may differ, which raises the question whether these three types of data can be kept in one databank. In this area, the Privacy Commission issues a negative opinion, mindful of the lack of precision in the establishment of the specific purposes.

As this databank will contain sensitive personal information, and it is vital to protect this, it was elected to place this databank under the responsibility of a consultant, for security and protection of privacy. The consultant will therefore be responsible for processing the data. This person will, amongst others, have to provide advice concerning the security of the data, and draw up and implement a security policy.  Moreover, this person shall be deemed to be independent, and he/shall will have to report to the Minister of Foreign Affairs and the Justice Minister.

The Privacy Commission endorses the point that responsibility must be designated for the databank, but regrets that it is unclear which service or entity will be the actual processor of the data. Indeed, from the point of view of privacy, it must be clear who takes on the processing, also in order to be able to supervise them.

The contents of this databank is, of course, equally important. The bill stipulates that the databank will be fed into by the OCAD, the police services and intelligence services. The data will be structured around data categories such as groupings and organisations, and must be appropriate and relevant to the purposes for which it is obtained. The data must also be accurate, and, where necessary, updated. The latter conditions come directly from the Act of 8 December 1992 on the protection of privacy in relation to the processing of personal data, and are imposed on everyone who processes personal data.

The bill also stipulates that the data must be evaluated every 3 years, in order to assess whether it still corresponds to the purposes, and it can be kept for a maximum of 30 years. This is in line with the legal obligations of the Act of 8 December 1992.

However, there is no clarity concerning access to the databank. The bill does make it clear that not all actors will have direct access to the joint databank, and that this access can be limited according to legal authority and the so-called “need to know” requirement. 

The OCAD, the integrated police, and the intelligence and security services will have direct access to the databank.  In addition, there are around eight more bodies which will have access,  inter alia, at the strategic, tactical or operational level, again on the basis of their need to know, and of their authority including responsibility for tasks for the prevention and monitoring of terrorism. These bodies are the Permanent Commission for the Local Police, the Directorate General Crisis Centre, the Directorate General Safety and Prevention of the Federal Public Service of Internal Affairs, the Directorate General of Penitentiary Institutions and the penitentiary institutions, the Federal Public Service of Foreign Affairs, the Directorate-General of Consular Affairs, the Public Prosecution Service, the Cell for Financial Information Processing, the Immigration Office and the investigation and detection departments of the Customs and Excise Administration. 

However, the actors who will have access are not identified, which is also a concern of the Privacy Commission. Here, for instance, the Privacy Commission points out that it is not specified who or what is meant by specific organisations. The bill specifies that the Public Prosecution Service has access to the joint databank, without clarifying further. Does this mean each prosecutor, and support staff too?

Mindful of the lack of differentiated access, depending on the exact intended aim of the different actors, and the difficulty of implementing the theoretical concept of “need to know” in practice, the Privacy Commission has issued a negative opinion concerning this point.

The Privacy Commission does not oppose the creation of this kind of databank per se. It only, justly, requires this databank to respect the legal provisions for the protection of private life. However, the proposal currently on the table does not succeed in doing this fully.

4. Conclusion

Broadening search of premises and telephone tapping and creating a joint databank, will doubtless provide authorities more means and possibilities in the fight against terrorism and serious crime.

There is no objection to the fact of the government attempting to arm itself in the fight against terrorism and organised crime.

However, these new means cannot be regarded as a license to trample over specific fundamental rights.