2023-05-23 18:13:32
SURVEILLANCE – The Council of the Order of Lawyers of Paris alerts on the next bill of orientation and programming of the Ministry of Justice. He could allow “the remote activation of an electronic device without the knowledge or consent of its owner or possessor for the sole purpose of locating it in real time”.
On May 3, Éric Dupond-Moretti tabled his law Project orientation and programming of the ministry of justice 2023-2027. The text will be discussed in public session from June 6.
In addition to geolocation, “sound and image capture”
In a communiqué published on May 17, the Criminal Commission of the Paris Bar presented its observations on the forthcoming orientation and programming law of the Ministry of Justice.
It denounces in particular the content of article 3. If this article were voted on by parliamentarians, any person suspected of being the perpetrator of a crime or misdemeanor punishable by at least five years imprisonment, could be geolocated, recorded and photographed. And all this in real time, through your own mobile phone.
Point 35 of article 3 of the draft law indeed provides “the remote activation of an electronic device without knowledge or consent of its owner or possessor for the sole purpose of locating it in real time(…) when the necessities of the investigation or the instruction relating to a crime or an offense punishable by at least five years of imprisonment so require”.
Although the text specifies that the remote activation of a mobile phone could only take place in view “to identify the device”, the Commission believes that the investigators would be able to obtain further information. In addition to geolocation, the text would make possible a “sound and image capture”.
This potential new provision of the Code of Criminal Procedure could therefore weaken the lawyer’s professional secrecy.
“Remote activation (…) for anyone anywhere”
A true fundamental right of defence, professional secrecy obliges lawyers to keep their exchanges with their clients silent.
According to the Order, the bill just tabled in the Senate is not sufficiently protective of this right. Indeed, the press release states that “the project does not prohibit, by their collection, listening to conversations in his office, between the lawyer and his client, even if their transcription is prohibited”.
Certainly, the bill specifies that “no interception can take place on a line dependent on a lawyer’s office or his domicile without the President of the Bar being informed by the examining magistrate”. It is therefore not prohibited to wiretap a lawyer, provided that the elected representative of lawyers registered with the bar is informed in the context of an investigation. And what about the customer? If a person is continuously bugged without their knowledge and they have an appointment with their Council, what happens?
The Paris Bar Association recalls the difference between collection and transcription. In such a situation, it would be forbidden for the investigators to transcribe the content of the exchange on paper. But in the current state of the bill, nothing prevents such a conversation from being recorded all the same.
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