Romania - Interceptions made by the Romanian intelligence service in criminal cases are unconstitutional
Published 19 April 2016
On 14 March 2016, the Romanian Constitutional Court ("the Court") published Decision No. 51/2016 in which it declared certain provisions of the Romanian Code of Criminal Procedure (the "Code”) unconstitutional (the "Decision").
Article 142(1) of the Code provides that the prosecutor can enforce technical surveillance or may order for technical surveillance to be carried out by criminal investigation bodies, specialised workers from the police force or by other state specialised bodies.
The term "other state specialized bodies" was found to be "lacking in clarity, precision and predictability" and was called into question for its lack of constitutional standing as there have been several different types of situations in which the Romanian Intelligence Service has intercepted and collected data.
The intrusive nature of such technical surveillance measures breaches the right to intimacy, family and private life and the right to the secrecy of correspondence (together the "Rights"). On this basis, the Court considered that any technical surveillance, which interferes with the Rights, would only be constitutional where it is undertaken within a clear, precise, and predictable legal framework. Such a framework would identify the bodies, that are allowed to interfere with the exercise of such rights, 'in an express, clear, precise and predictable manner'.
Therefore, the Court held that it was justifiable for technical surveillance measures to be enforced by the prosecutor, judicial criminal investigation bodies, and by specialized personnel within the police force and that the phrase 'other specialised state bodies' in Article 142(1) of the Code was unconstitutional and therefore the enforcement of technical surveillance cannot be justified when undertaken by "other specialized bodies of the state" on this basis.
The Decision has erga omnes effects, meaning 'towards all or everyone' and will only apply going forwards meaning that it will not have retrospective effect and as such will not apply to cases for which a final judgment has been given prior to the date when the Decision was published. It will apply however, to cases which are still pending before the Romanian courts. Moreover, in respect of cases where a final judgment has been given and cases where similar unconstitutionality exceptions have been invoked prior to 14 March 2016, the Decision may constitute grounds for revision, in accordance with the relevant provisions of the Code.
To read the Decision, please click here.
Submitted by Iurie Cojocaru of Nestor Nestor Diculescu Kingston Petersen – Bucharest, Romania