Questionnaire Belgium
I.13 Which coercive measures?
The preparatory inquiry is split into two parts, i.e. on the one hand the preliminary inquiry, which is supervised by the prosecution service and carried out by the police, and on the other hand the judicial inquiry, which is executed under the authority of the investigating judge and de facto carried out by the police.
Within the scope of the preliminary inquiry, the police and the public prosecutor can make no inroads into the basic rights and liberties of citizens, unless the law contains a clear power to do so. Next to the possible seizure of objects mentioned in sects. 35, 35bis and 35ter CCP and the specific rules for catching someone in the act (in flagrante delicto), reference should be made to arrest on the one hand, and special investigation methods on the other.
A judicial inquiry has to be requested by the public prosecutor in order to get an arrest warrant. Furthermore, a judicial inquiry is necessarily opened for the interrogation of a completely anonymous witness, for the performing of a measure of listening in to or tapping a telephone call and for a house search (sect. 28septies CCP). According to the judgment of the Court of Arbitration (i.e. the Constitutional Court) of December 21, 2004 the observation with technical means to gain insight in a house and the so-called inkijkoperatie – i.e. the entering of private property without the knowledge or consent of the owner or the inhabitant – are also only possible in a judicial inquiry.
Within the scope of the preliminary inquiry, the police and the public prosecutor can make no inroads into the basic rights and liberties of citizens, unless the law contains a clear power to do so. Next to the possible seizure of objects mentioned in sects. 35, 35bis and 35ter CCP and the specific rules for catching someone in the act (in flagrante delicto), reference should be made to arrest on the one hand, and special investigation methods on the other.
A judicial inquiry has to be requested by the public prosecutor in order to get an arrest warrant. Furthermore, a judicial inquiry is necessarily opened for the interrogation of a completely anonymous witness, for the performing of a measure of listening in to or tapping a telephone call and for a house search (sect. 28septies CCP). According to the judgment of the Court of Arbitration (i.e. the Constitutional Court) of December 21, 2004 the observation with technical means to gain insight in a house and the so-called inkijkoperatie – i.e. the entering of private property without the knowledge or consent of the owner or the inhabitant – are also only possible in a judicial inquiry.
