French Customs Code
In forceI.-Without prejudice to the application of the provisions of articles 60 to 60-10, 61, 62, 63, 63 bis, 63 ter and 64, in order to establish customs offences, if the penalty incurred is equal to or greater than two years' imprisonment, customs officers authorised by the Minister responsible for customs under conditions set by decree may carry out surveillance throughout national territory, after informing the public prosecutor and unless this magistrate objects, carry out surveillance of persons against whom there are one or more plausible grounds for suspecting them of being the perpetrators of a customs offence or of having participated in it as accomplices or interested parties in the fraud within the meaning of article 399.
The same provisions apply to surveillance of the routing or transport of objects, goods or products derived from the commission of these offences or used to commit them.
The prior information provided for in the first paragraph must be given, by any means, to the public prosecutor at the judicial court in whose jurisdiction the surveillance operations are likely to begin.
II - Where warranted by the investigations, the public prosecutor may authorise undercover operations to be carried out under his supervision in accordance with the conditions set out in this article in order to:
1° To detect the following offences:
-Customs offences involving the import, export or possession of substances or plants classified as narcotics, smuggling of manufactured tobacco, alcohol and spirits;
-the offences referred to in article 414 when they involve counterfeit goods, weapons or their components, ammunition or explosives;
-the offences set out in article 415;
2° To identify the perpetrators and accomplices of these offences as well as those who participated as interested parties within the meaning of article 399 ;
3° To carry out the seizures provided for in this Code.
Infiltration consists, for a customs officer specially authorised under conditions laid down by decree, acting under the responsibility of a category A officer in charge of coordinating the operation, of monitoring persons suspected of committing a customs offence by posing as one of their co-perpetrators, accomplices or parties involved in the fraud. To this end, the customs officer is authorised to use an assumed identity and, if necessary, to perform the acts mentioned below. Under penalty of nullity, these acts may not constitute incitement to commit offences.
The undercover operation is the subject of a report drawn up by the category A officer who coordinated the operation, which includes the information strictly necessary to establish the offences and which does not endanger the safety of the undercover officer and the persons required within the meaning of III.
III - Customs officers authorised to carry out an undercover operation may, without being criminally liable for these acts and throughout national territory:
a) Acquire, hold, transport, deliver or issue substances, goods, products, documents or information derived from the commission of offences ;
b) Use or make available to persons committing these offences legal means as well as means of transport, deposit, accommodation, storage and telecommunications.
The exemption from liability provided for in the first paragraph also applies, for acts committed for the sole purpose of carrying out the undercover operation, to persons required by customs officers to enable this operation to be carried out.
IV - Under penalty of being declared null and void, the authorisation granted pursuant to II must be issued in writing and must state the specific reasons on which it is based.
It shall mention the offence or offences that justify the use of this procedure and the identity of the customs officer under whose responsibility the operation is being carried out.
The authorisation sets the duration of the undercover operation, which may not exceed four months. The operation may be renewed under the same conditions of form and duration. The magistrate who authorised the operation may, at any time, order it to be interrupted before the set period has expired.
The authorisation is added to the case file once the undercover operation has been completed.
V.-The real identity of the Customs officers who carried out the undercover operation under an assumed identity must not be revealed at any stage of the procedure.
Revealing the identity of these agents is punishable by five years' imprisonment and a fine of 75,000 euros.
If such disclosure causes violence, assault or injury to these persons or their spouses, children or direct ascendants, the penalties are increased to seven years' imprisonment and a fine of €100,000.
Where this disclosure has caused the death of these persons or their spouses, children or direct ascendants, the penalties are increased to ten years' imprisonment and a fine of 150,000 euros, without prejudice, where applicable, to the application of the provisions of Chapter I of Title II of Book II of the Criminal Code.
VI - In the event of a decision to interrupt the operation or at the end of the period set by the decision authorising the operation and in the absence of an extension, the undercover agent may continue the activities mentioned in III, without being held criminally liable, in order to enable him to cease his surveillance in conditions that ensure his safety, without this period exceeding four months. The magistrate who issued the authorisation provided for in II shall be informed as soon as possible. If, at the end of the four-month period, the undercover agent is unable to cease surveillance in conditions that ensure his or her safety, the magistrate will authorise an extension for a maximum of four months.
VII - The customs officer under whose responsibility the undercover operation is being carried out may alone be heard as a witness on the operation.
However, if it emerges from the report referred to in II that the person under investigation or appearing before the trial court is directly implicated by findings made by an agent who personally carried out the undercover operations, this person may ask to be confronted with this agent under the conditions set out inArticle 706-61 of the Code of Criminal Procedure.
The questions put to the undercover agent during this confrontation must not have the purpose or effect of revealing, directly or indirectly, his true identity.
VIII - Where the surveillance provided for in I is to be continued in a foreign State, it shall be authorised by the Public Prosecutor. The minutes of the surveillance or reports relating thereto and the authorisation to continue the surveillance on the territory of a foreign State shall be placed in the case file.
With the prior agreement of the Minister of Justice who has received a request for mutual legal assistance for this purpose, foreign customs officers may carry out undercover operations on the territory of the Republic, under the direction of French customs officers, in accordance with the provisions of this article. The agreement of the Minister of Justice may be subject to conditions. The operation must then be authorised by the public prosecutor at the Paris judicial court, under the conditions set out in II.
The Minister of Justice may only give his agreement if the foreign agents are assigned in their country to a specialised service and carry out missions similar to those of the specially authorised national agents mentioned in II.
With the agreement of the foreign judicial authorities, the foreign customs agents mentioned in the second paragraph of this VIII may also, in accordance with the provisions of this article, participate under the direction of French customs agents in undercover operations carried out on the territory of the Republic as part of a national customs procedure.
IX - No conviction may be handed down solely on the basis of declarations made by customs officers who have carried out an undercover operation.
However, the provisions of this IX shall not apply where customs officers give evidence under their true identity.
