Provisional Act No. 99 of 17 December 1976 concerning the interception of telephone communications during the investigation of offences under the dangerous drugs legislation
When any person is reasonably suspected of any act punishable under the Criminal Justice Act § 162, the court may make an order authorising the police to listen to calls to and from specified telephones, telex systems or similar telecommunication installations which the suspect has in his possession or may be presumed to intend to use.
If any delay will be detrimental to the investigation, an order issued by the prosecuting authority may replace a court order, but this may not exceed 24 hours. If the time limit expires on a Saturday, public holiday or any day which is legally defined as equivalent to a public holiday, the time limit is extended to the same hour on the first subsequent working day. No later than the point in time at which the prosecuting authority issues its order, it must submit the question of interception to the court for a decision to be made or, in the event, for approval to be granted.
The rules governing the interception of telephone communications apply even if punishment may not be imposed because of the provisions contained in § 44 or § 46 of the Criminal Justice Act.
If the court finds reasonable grounds for suspicion concerning any act as mentioned in § 1 first paragraph, the court may issue an order to the effect that the handling of calls to or from specified telephones which the suspect has in his possession or may be expected to intend to use, shall be discontinued or interrupted. The court may further issue an order to the effect that such telephones may be disconnected or that the supervisor of any telephone exchange is to provide the police with information as to which telephones in a given period are being or have been connected with a particular telephone.
The rules of § 1 second and third paragraphs apply correspondingly.
Permission to use an electronic listening device in accordance with § 1 or to use other measures in accordance with § 2 may only be granted if it must be presumed that such interception will be of considerable importance to the solving of the crime, or that the solving of the crime will otherwise be made considerably more difficult.
If the telephone the suspect is presumed to intend to use is available to a large number of persons, permission to use any form of listening device or other measures may only be granted if special reasons are to be found. The same applies in the case of telephones belonging to lawyers, doctors, priests or other persons known to conduct conversations of an extremely confidential nature over the telephone, provided that the person concerned is not himself a suspect in the investigation.
The matter is to be brought before the Court of Examining and Summary Jurisdiction in the place where this can most conveniently be done.
The decision of the court is made without the accused or any other person affected by the decision being allowed to speak, and the order is not made known to them.
Permission to intercept telephone communications is granted for a fixed period of time, which must not be longer than strictly necessary. Such permission must not be granted for more than 4 weeks at a time.
The interception of telephone messages is to be discontinued before the expiry of the period laid down in the court order if the reasons for interception are no longer presumed to exist or if interception is no longer considered appropriate.
The prosecuting authority shall ensure that recordings or notes made during the interception of telephone conversations are destroyed as soon as possible in so far as they are of no relevance to the investigation or concern statements to which in accordance with the provisions of the Criminal Justice Procedure Act § 117 to § 120 and § 122 the court will not be able to demand that the person concerned shall testify, unless the person concerned is suspected of a criminal offence which falls within the scope of the Act.
A board is to be appointed to keep a check on the handling of such cases under the Act by the police and the prosecuting authority. The board is to consist of three members who are to be appointed by the King. In addition the appointment is to be made of an alternate who is to join the board in the event of the absence of a member. The chairman of the board must satisfy the requirements laid down for the appointment of judges of the Supreme Court. The King may issue more detailed rules concerning the work and procedure of the board.
All persons must keep secret the fact that the interception of telephone communications has been demanded or decided in a case which is being investigated. The same applies to other information that is of importance to the investigation and that such persons obtain in connection with the tapping or with the case itself. The obligation of secrecy also applies in respect of the accused in a case but is otherwise no impediment to information being used in the process of investigation.
All persons shall observe secrecy with respect to those not involved concerning information about a person's private affairs which they may obtain in connection with the interception of telephone communications.
The King may issue regulations concerning the implementation of the Act.
The Act comes into force immediately and applies provisionally until the end of the year 1990.
Regulations governing the interception of telephone
communications during the investigation of offences
under the dangerous drugs legislation
Laid down by Royal Decree on 19 January 1979 pursuant to provisional Act No. 99 of 17 December 1976 § 7 and § 9 with subsequent amendments made by Royal Decree on 14 November 1980 and 13 December 1985.
Part 1 General provisions concerning the interception of telephone messages
The chief of police or superior prosecuting authority decides whether the permission of the court shall be sought to tap any telephone, telex system or any such telecommunication installation pursuant to provisional Act No. 99 of 17 December 1976 concerning the right to intercept telephone communications during the investigation of offences under the dangerous drugs legislation (Interception of Telephone Communications Act) § 1 first paragraph.
An order to use an electronic listening device in urgent cases in accordance with the Interception of Telephone Communications Act § 1 second paragraph is issued by the chief of police or superior prosecuting authority.
The provisions laid down in these regulations apply correspondingly in so far as they are appropriate to telephone tapping as determined in the Interception of Telephone Communications Act § 2.
At the end of each quarter the chief of police sends a report in duplicate to the Director General of Public Prosecutions with information about all interception of telephone communications that has taken place or that has been demanded or ordered in his district during the quarter concerned. This report must contain an account of the way in which listening devices were used and the results of the interception. The Director General of Public Prosecutions sends one of the copies of the report to the Control Board for the interception of telephone communications in dangerous drugs cases, cf § 11, with any comments.
At the end of each year all chiefs of police send a report to the Director General of Public Prosecutions with information about the extent to which the interception of telephone messages has taken place or been demanded or ordered in their respective police force areas.
The Director General of Public Prosecutions considers these reports and each year informs the Ministry of Justice of the number of cases in which the interception of telephone communications has taken place or been demanded or ordered, how many telephone numbers have been tapped, which police force is responsible for the case, and what results have been obtained or are expected to be obtained through interception. There shall be anonymity in this report. A copy of the report shall be sent to the Control Board for the interception of telephone communications in dangerous drugs cases, cf § 11.
The Ministry may obtain further information about the handling of telephone interception cases by the police or by the prosecuting authority, both in general and in respect of concrete cases.
Part 2 The Control Board for the interception
of telephone communications in
dangerous drugs cases
The control board for the interception of telephone communications in dangerous drugs cases consists of three members and an alternate who joins the board in the event of the absence of a member. The chairman of the board must satisfy the requirements laid down for the appointment of judges of the Supreme Court. The term of office is 4 years.
The board is to check that the use made by the police of telephone tapping and other forms of interception of telephone communications in dangerous drugs cases falls within the scope of legislation and instructions, and that the use made by the police of interception in this cases is limited as much as possible. In this connection the board shall particularly keep in mind the legal protection of the individual.
The board is to check that the information obtained by the police by means of the interception of telephone messages is only used in the manner prescribed by law, and that the provisions of the Act concerning the destruction of material are followed. The board is also to ensure that the rules concerning secrecy are followed.
The board may not decide that interception of telephone communications which is in progress is to be discontinued.
The board is to examine the documents and reports it receives from the police and the Director General of Public Prosecutions, cf § 9.
Within the scope of its powers, cf § 12, the board is to investigate any complaint from individuals or organisations who believe their telephone communications have been unlawfully subjected to secret interception.
The board may otherwise on its own initiative take up any case or matter in connection with the use of telephone interception by the police or the prosecuting authority in dangerous drugs cases that it finds reason to deal with. In this connection the board is to place particular emphasis on matters that have been the object of public debate or criticism.
The prosecuting authority may not bring current individual cases before the board.
The police and the prosecuting authority are to provide the board with any information, documents, tape recordings, etc. concerning the interception of telephone communications in dangerous drugs cases that the board finds necessary with respect to its control function.
The board may summon any member of the police or prosecuting authority and any other public servant contributing to the interception of telephone messages for questioning. Such public servants are under an obligation to testify before the board without respect to their duty to observe secrecy.
The board informs the complainant of the result of its deliberations in the form of a conclusion, the basis of which is not stated, that the complaint either gives or does not give grounds for criticism of the police. If the board finds grounds for criticising the police, the matter is to be reported to the Director General of Public Prosecutions and the Ministry of Justice.
Each year the board shall send a report to the Ministry of Justice concerning its activity and it may otherwise at any time send in a separate report to the Ministry on individual cases involving the interception of telephone communications.
The board shall not receive instructions or directives from any other persons than the King in the Council of State.
The board decides itself on its method of work and makes use of necessary secretarial help. In this connection the board may seek support from the Ministry of Justice. The secretary's remuneration, etc. will be decided in each individual case by the Ministry of Justice.
The members of the board, its secretary and any other persons carrying out work for the board are under an obligation to observe secrecy in accordance with the rules laid down in the Interception of Telephone Communications Act § 8. The obligation to observe secrecy shall also apply after the matter is closed, but shall not be an impediment to information being used as a step in the control procedure.
The chairman of the board, or any person to whom the board gives such authority, may state publicly whether a matter is being investigated or whether it has been concluded, and whether or not there are grounds for criticism. Otherwise the board, its members or secretary may not speak publicly.