Opening mail: what you need to know

Opening mail: what you need to know

Opening mail is an under investigation act used in the investigation of crimes. It is important when opening mail may take place. Our criminal law experts go over the various aspects of this investigative act below.

When?

It is often popularly asserted that opening mail is in no way possible as a result of letter secrecy. In fact, letter secrecy is protected by Article 29 of the Constitution, Article 8.1 ECHR and Article 7 EU Charter. Also, Article 460 of the Criminal Code criminalizes persons who remove a entrusted letter or open a letter to violate its secrecy. It should be noted, however, that this principled protection is not absolute. Article 8.2 ECHR allows interference when the following conditions are cumulatively met:

• The interference is provided for by law;
• Interference is necessary to safeguard the public safety or economic well-being of the country, protect public order and prevent criminal offenses, protect health or morals, or protect the rights and freedoms of others.

The constitution also states that the law itself may determine which police departments may violate the secrecy of letters entrusted to the mail.

Legal basis

The Act of January 6, 2003 (Special Investigation Methods Act, so-called BOM Act) inserted a specific legal basis in the context of opening and taking cognizance of contents of mail. The legal basis for actually opening mail and taking cognizance of its contents is found in Article 88sexies of the Code of Criminal Procedure.

Who is competent?

It is the investigating judge who is authorized to order this investigative act. In the case of an act of discovery, the Public Prosecutor may also exercise this power.

It is also possible for the Public Prosecutor to order this investigative act to be performed without an act of discovery. This can be done on the basis of the "mini-instruction," in which the Public Prosecutor orders an investigating judge to issue this investigative act without the need for a judicial investigation.

After opening?

If the mail was opened, it is possible that it could be further confiscated. Alternatively, the mail may be returned to the authorized postal operator, who is responsible for further transmission. It is possible that the investigating judge may order the cooperation of the authorized postal operator.

If your mail has been opened without a legal basis, do not hesitate to contact the experts of team Criminal Law by e-mail (info@bannister.be) or by phone (03 369 28 00).