Phone tap
The wiretap is a well-known concept in Belgian criminal investigation and is often used in the detection of crimes. It is of course important to know when such a wiretap may take place. Our experts in criminal law go over the different aspects of the wiretap below.
What
Private wiretapping is a criminal offense unless the law provides for exceptions. What the investigative measure entails is described in art. 90ter, §1 Sv and reads, "The investigating judge may, without prejudice to the application of Articles 39bis, 87, 88, 89bis and 90, with a clandestine purpose, intercept, take cognizance of, search and record communications or data of an IT system or part thereof not accessible to the public by technical means, or extend the search in an IT system or part thereof."
Who
It is only possible to order the wiretap with respect to individuals suspected of having committed criminal offenses based on concrete evidence. If, based on concrete facts, there is a suspicion that a person is in regular contact with a suspected person, this investigative act may also be initiated with respect to that person.
Which communication
Since the law of December 25, 2016, the scope of article 90ter Sv. has been thoroughly expanded. Not only are private communications via telephone protected, but also those conducted via other information media. Electronic communications via e-mail, voicemail or social media are examples of communications that fall within the scope of Article 90ter SC. The explanatory memorandum refers to social media channels Snapchat, Whatsapp and Facebook.
How
It is possible to eavesdrop on communications directly using directional microphones or other equipment. The investigating judge can issue an order to enter a home or an information technology system without the knowledge of the person involved. The purpose is to be able to place the listening devices.
Terms
Eavesdropping on private communications is at odds with the right to privacy. To address this, the Belgian legislature has introduced some legal conditions, namely those of subsidiarity, proportionality, the presence of serious indications and reactivity.
The fact must have already been committed. It is not intended to use the eavesdropping measure to establish facts, which it is suspected could possibly be committed. Thus, a wiretap for the purpose of catching someone is not permitted by law. It should be noted, however, that the crime does not have to be completed. The attempts of the offenses listed in article 90ter, §2 Sv. also fall within the scope of the investigative measure.
Eavesdropping on private (tele)communications is only legitimate with respect to serious offenses. The Belgian legislator did not opt for a heaviness threshold, but for an exhaustive list. This "wiretap list" is enumerated in Article 90ter, §2 Sv.
The wiretap can only be employed If other means are not sufficient to establish the truth.
The last condition provides that there shall be serious indications present should be that the criminal offense, as defined in Article 90ter, §2, has been committed. Anonymous information regarding the crime under investigation is an example of clues that may legitimize a wiretap.
How long
Finally, a prior authorisation to be given by the investigating judge. The duration of the measure is limited to a maximum of one month. The term begins to run from the order of the investigating judge. The investigating judge is authorized to extend the measure one or more times. The extension period may not exceed one month and the maximum of the entire term is six months
