During a criminal investigation, one of the most commonly used investigative acts is requisition. It is used to gather documents and information needed to understand the facts.
Who can issue requisitions?
The General Prosecutor may, by any means, require any person, public or private body, to hand over documents or information useful for the establishment of the truth.
They may also delegate this power to a judicial police officer, who will then act on their authorization.
Although requisition must be formalized to enable the judicial authority to effectively control, in particular the usefulness of the information requested in ascertaining the truth, it is not subject to any particular form.
Thus, the fact that the requisitions report bears the words "in accordance with the instructions of the General Prosecutor " is sufficient to justify an authorization from the latter within the meaning of article 81-6-1 of the Code of Criminal Procedure; the absence of written authorization cannot constitute grounds for cancelling the investigative act carried out.
What documents can be requested?
All types of documents or information may be required, including those from a computer system or from the processing of personal data.
However, in order to ensure a balance between the protection of personal information and the objective of prosecuting offences, requisitions relating to particularly intrusive technical data are only possible in a limited number of cases.
Thus, requisitions relating to data enabling the identification of the source of the connection, the terminal equipment used or relating to traffic and location data are possible, if require for the purposes of the procedure, only when:
- The proceedings relate to a crime or an offence punishable by at least one year's imprisonment;
- These requisitions concern the victim's terminal equipment and are made at the request of the victim in the event of an offence punishable by imprisonment;
- These requisitions are aimed at finding a missing person.
Can one refuse to respond to requisitions?
Subject to the above-mentioned specificities, it is up to the persons and bodies concerned to respond to the requisitions addressed to them, with the exception of persons who benefit from protection because of the secrets they are required to protect.
While it is expressly provided that banking institutions may not invoke banking secrecy in order to refuse to transmit information in the context of criminal proceedings, this is not the case, in particular for lawyers, magistrates, doctors, bailiffs, notaries and members of the government whose consent is a necessary prerequisite for the provision of information or documents.
Any refusal to respond to the requisition shall be immediately brought to the attention of the General Prosecutor.
Are there any penalties for refusing to respond to requisitions?
Refusing, without legitimate reason, to respond to judicial requisitions as part of a criminal investigation may constitute obstruction of justice.
In such a case, the person concerned first receives a reminder of the terms of the requisition by registered letter with acknowledgement of receipt, requesting its execution.
If the person persists in refusing, without a legitimate reason, they risk a prison sentence of three to six months and a fine of €18,000 to €90,000. When the refusal is made by a legal person, the fine may be increased tenfold.
However, it is advisable not to respond hastily to requisitions from the judicial authorities in the context of criminal proceedings in order to avoid the transmission of superfluous documents, which could then be reproached by the persons under investigation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.