Revision of the Constitution: Phone tapping, possible only during prosecution


The draft also eliminates the provision that allows prosecutors to put phones under surveillance.

After it began its proceedings, the Constitution Revision Committee admitted several amendments referring to criminal prosecution. According to an amendment adopted yesterday, phones may be tapped only during the prosecution phase, as the draft removes the text which allowed prosecutors to instate the measure in 48 hours.
“The surveillance and tapping of conversations conducted by phone or by any other electronic mean of communication, environmental recordings, location by GPS or any electronic mean of surveillance, recording images, obtaining the list of phone calls or other such techniques provided by law are ordered by the judge of the court competent to try the case, and only during the prosecution phase,” reads the amendment adopted by the Revision Committee, at the proposal of the Romanian Association of Magistrates. In its initial form, the text of the revision initiative stipulated that phone tapping “is ordered by the judge, in the legal conditions.” The text that allowed prosecutors to order the surveillance of communications for a 48-hour interval, in extreme situations, has been removed by the members of the committee. This regulation was provided both by the text of the Constitution revision initiative and by the amendments proposed by AMR.
The members of the Law Committee also passed an amendment that expands the principle of the equality of means between accusation and defence to the entire course of the criminal prosecution.
Remand, ordered afterthe start of the criminal prosecution
Another amendment proposed by AMR and adopted by the Committee yesterday provides that the measure of remand is ordered by the judge of the court competent to try the case, and only after the beginning of the criminal prosecution. The present form of the Constitution only provides that “remand is ordered by the judge only during the criminal prosecution process.” The adoption of the amendment was justified by senators Ioan Chelaru and Daniel Fenechiu, who explained that the text proposed by AMR is extremely complex and encompassing. Fenechiu explained that the insertion of the text “after the beginning of the criminal prosecution” will enforce the rule of law in Romania, preventing the possibility that a citizen is abusively taken in custody.
Illegally obtained
evidence, possible only in favour of the accused
The Constitution Revision Committee also adopted an amendment that allows the use of illegally obtained pieces of evidence only if they are in favour of the accused and prohibits their use in opposite situations. “It is prohibited using an illegally obtained piece of evidence, except the case when it is used in favour of the accused,” reads the new form of paragraph 14 of article 23 of the draft revision. Initially, the proposed text of the fundamental law stipulated: “It is prohibited to use a piece of evidence obtained illegally.” The amendment was reformulated by PSD Senator Ioan Chelaru and adopted in unanimity by the members of the committee.
The punishment for “pressures upon Justice” abrogated by the Senate
In a different move, the Senate yesterday passed a draft law that abrogates article 276 of the Penal Code, a text that will be submitted to the plenum of the Chamber of Deputies next week. The article punished by prison terms the “pressures upon Justice” through statements referring to judges or criminal prosecution organisms. The initiators of the abrogation argued that the article would have allowed interpreting the statements of any person, especially those published by the media, as a pressure upon a judge or a prosecuting institution, which only creates the possibility of pronouncing arbitrary verdicts that harm the freedom of expression. Moreover, the initiators explained that “punishing crimes of opinion with prison terms is not justified.”
US Embassy meet CSM heads
According to a CSM release quoted by Agerpres, the CSM President and Vice President, Adrian Bordea and Gheorghe Muscalu, on Monday had a meeting with the delegation of the Embassy of the United States of America in Bucharest. CSM leaders presented their priority objectives this year, such as the strengthening of the role of the Council as guarantor of the justice independence, the new codes’ implementing, the judicial integrity, the reorganisation of courts and prosecutor’s offices. The CSM head had initially scheduled the meeting with the US Embassy representatives on January 27, but it was postponed due to bad weather.
In a different move, the president of the Superior Council of Magistracy, said in an interview granted to Agerpres that the judiciary system is still underfinanced and the attacks against justice should not be treated the absolute way, as attacks against its independence.

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