The Romanian Constitutional Court’s (CCR) publication of the reasons for the Decision adopted on February 16, according to which the stipulations of Article 142, Paragraph 1 of the Criminal Procedure Code are unconstitutional, has sparked immediate reactions from state institutions with prerogatives in the anticorruption fight.
The CCR plenum admitted on February 16, by majority vote, the objection of unconstitutionality of the Criminal Procedure Code provisions according to which the technical supervision ordered by the prosecutor can be performed not only by “the criminal investigation body or police experts” but also “by other specialized bodies of the state.”
The Court also ruled that the examined phrase does not meet the quality requirements of a legal norm in terms of clarity, precision and predictability because it does “not allow the subjects of law to determine which are the specialized bodies of the state that are competent to enforce the measures ordered by the technical supervision warrant, measures which imply a high degree of intrusion into the privacy of individuals.”
The Criminal Procedure Code paragraph that underwent the constitutionality check provides that the “prosecutor sets into practice the technical supervision or may order it to be carried out by the criminal investigation body or expert staff of the police or other specialized bodies of the state.”
The Constitutional Court of Romania (CCR) argues that except for Art. 142 Para. (1) of the Criminal Procedure Code, no other regulation in national law expressly sets forth the competence of a state agency other than the criminal prosecution bodies to perform interceptions or enforce a technical surveillance warrant.
“Starting from the concrete data in the case submitted for constitutionality check, the Court considers that regulation in this area cannot be done otherwise but by a regulatory act with power of law and not by regulatory provisions or regulatory acts with administrative character adopted by bodies other than the lawmaking authority, which are acts characterized by a high degree of instability or inaccessibility,” states the reasoning for the CCR decision to declare as unconstitutional the phrase “other specialized state bodies” in the Criminal Procedure Code article that regulates interceptions.
Given the intrusive nature of technical surveillance measures, CCR finds it is mandatory that they are conducted within a legislative framework that is clear, precise and predictable both for the person subject to the respective measure, and the prosecution bodies and the courts.
DNA’s Kovesi: Anticorruption fight will continue, but a slowdown will be caused by lack of resources
Laura Codruta Kovesi, head of the National Anticorruption Directorate (DNA), stated on Wednesday evening that the anticorruption fight will continue however there will be a slowdown caused by the lack of resources. She added that the CCR decision will have several effects on DNA’s activity, the most important of them being the manner in which the technical surveillance warrants will be implemented.
“The CCR decision has several effects that concern our activity, for instance the manner in which we will implement the technical surveillance warrants. According to the law, in order to carry out the warrants, prosecutors were able to call on police bodies or other special bodies, SRI for instance. There were several possibilities through which DNA was using the human resources and technical equipment of other institutions. According to the law, among prosecutor’s offices only DIICOT and DNA can have surveillance equipment. DNA has a technical service that has been working for 11 years, DIICOT does not. We have a technical service made up of 24 persons – 23 police officers and one prosecutor. In previous years we did not have sufficient resources to work solely with our technical service, so that we resorted to other services. With there being so many diversified activities, 24 people could not cover all these activities carried out in several cases. With the CCR decision coming into force, we will no longer be able to use these other services. However, CCR does not rule out the use of infrastructure,” Laura Codruta Kovesi stated on Digi24.
The Chief Prosecutor also talked about the resources that the DNA needs in order to successfully handle these changes: “We have carried out an estimate: around 130 police officers and 10 million Euros. It’s a temporary assessment based on the use of this existing infrastructure. In what concerns the cases currently listed, it should have no effects on the legally administered body of evidence. Certain persons involved in DNA cases invoked this exception. Whatever I were to say tonight, it would mean commenting on an ongoing case. After publication there will probably be others too.”
Laura Codruta Kovesi clearly emphasised that the anticorruption fight will continue but that at the same time a strategy to deter corruption will also be stressed: “The anticorruption fight will continue however there will be a slowdown caused by the lack of resources. It is good for the DNA to register more convictions every year? Is it good for the country to have more corrupt? That is why it is good for this DNA activity to be carried out in parallel with a strategy to deter corruption. For the last 3 years I have constantly pointed out that we need a strategy to deter corruption,” the DNA Chief Prosecutor said.
DNA’s chief : Technical support must be granted only by prosecutors, policemen; need additional resources to continue
DNA’s head argued in an interview granted to Agerpres, referring to the decision of Romania’s Constitutional Court (CCR) regarding wiretaps, that any technical support must be granted only by prosecutors, policemen or telecommunications companies and that, in order to properly deal with this situation, there is need for additional human and technical resources.
“At this moment we are prepared, once the decision of the Constitutional Court is published, to personally proceed to enforce authorizations [for wiretaps], yet to deal with all four categories of activities that we are conduction, when it comes to technical surveillance for the purpose of obtaining evidence, surely we need additional resource,” Kovesi stated.
She emphasized that in order to respect the CCR decision there is a need to modify the personnel structure of the DNA as well as the human and technical resources structure.
“Firstly, we need an addition to the number of policemen working in the DNA, but also an addition to the technical equipment we use, the software, the procedures, in order to train, from a professional point of view, the policemen that will work in the DNA – additions that involve a cost of around 10 million euro. In this sum we include the necessity of additional space. (…) Mainly, the decision of the Constitutional Court forces prosecutors and policemen in the judiciary police to personally proceed to enforce authorizations for technical surveillance,” Kovesi explained.
She mentioned that there are four types of activities that make up the process of technical surveillance – communication interception, environmental interception, localization and situations where access to data traffic is necessary.
“Presently, through the issuing of this decision, any technical support must be granted only by prosecutors, policemen or the telecommunications suppliers or companies. At the moment, we have done an evaluation in order to efficiently work on our cases. (…) We need this budget addition, yet this evaluation is valid only if we can use the pre-existing infrastructure of the SRI [Romanian Intelligence Service], with the condition that the enforcement be made directly by the DNA policemen and prosecutors. This is possible at this moment – that DNA policemen and prosecutors personally proceed to enforce these authoritzations -, but we need to use this infrastructure,” the DNA head added.
According to her, in case, from a legal point of view, the use of the existing infrastructure is not permitted, the evaluation made will become much larger.
In what regards the situation of the ongoing cases, she gave assurances that DNA prosecutors will continue their activity, but admitted the possibility that some cases be delayed.
“We have over 7,300 files we are working on at this moment and approximately 120 prosecutors. It is a very high volume of cases. There are prosecutors that are working on over 100 cases. (…) If the addition to the personnel scheme is approved until that moment we will have to use the existing resource, reason for which some cases or in general the indictments that are not close to finalization will be a bit delayed. At this moment we must use the policemen from the judiciary police that we have in order to enforce these technical surveillance measures. As such, we will have some policemen that will not work in case files and who will be trained by the staff at the Technical Service in order to continue these activities that are extremely necessary and useful in composing an indictment,” she added.
Regarding the CCR decision and the “SRI-DNA binomial,” Kovesi mentioned that the National Anticorruption Directorate worked with all the other state institutions that could offer technical or informational support and will continue the collaboration. “In the end, I don’t believe that it is unconstitutional to work with a state institution that offers you a certain technical support or a certain infrastructure. (…) Surely, our collaboration with the SRI, but also with other institutions will take place only in accordance with the law,” Laura Codruta Kovesi emphasized.
Public Ministry’s reaction: CCR decision is mandatory, prosecutors have to respect it precisely
The Public Ministry points out in a press communiqué that it took note of the explanation for the decision the CCR adopted on February 16, a decision that declared Article 142, Paragraph 1 of the Criminal Procedure Code unconstitutional. The Ministry’s leadership adds that the decision is mandatory and prosecutors have to respect it precisely.
“The Public Ministry’s leadership has taken note of the explanation of Constitutional Court Decision dated February 16, according to which Article 142, Paragraph 1 of the Criminal Procedure Code has been declared unconstitutional. The decision is mandatory; consequently, prosecutors will respect it precisely. In this sense, the High Court of Cassation and Justice’s Prosecutor’s Office and the Interior Ministry have identified the solutions needed in order to continue criminal prosecution in the cases in which these means of criminal investigation are also used, in order not to affect the celerity and efficiency of solving criminal cases.
At the same time, it was decided to carry out a periodical analysis of the efficiency of solutions identified and their impact on the criminal prosecution activity at the level of the Public Ministry,” the Public Ministry’s leadership points out in a communiqué.
DIICOT: The measures entail a budget effort of over EUR 20 M
The Directorate for the Investigation of Organized Crime and Terrorism (DIICOT) will also ask the Justice Ministry to promote an emergency ordinance modifying Law 508/2004, through whichit will ask for the establishment of the Directorate’s technical service, bearing in mind the CCR decision concerning the unconstitutional character of some regulations that concerns the carrying out of surveillance activities, a DIICOT communiqué shows.
“These measures entail a budget effort of over EUR 20 M, this sum being covered at this moment solely from the sums used by other special prosecuting units for the same purpose, the absolute sums being known only after a judicious calculus carried out with specialists in the domain,” according to the DIICOT communiqué.
IGPR: CCR decision entails amending the institution’s budget by EUR 30 M
The General Inspectorate of the Romanian Police (IGPR) informed in a communiqué that as a result of CCR’s decision the Romanian Police’s organization chart has to grow by an extra 1,000 officers and police agents, and the institution’s budget has to be supplemented by EUR 30 M, in order to perform surveillance in the new legislative context.
SRI: CCR decision will affect criminal cases, crimes against national security
Romanian Intelligence Service (SRI) Director Eduard Hellvig says that a Constitutional Court decision on wiretapping definitely has an impact on national security; it will affect criminal cases in various judiciary stages, especially those concerning crimes against national security.
“Therefore, in the criminal trial, crimes such as spying, treason, terrorism, cross-border organized crime, counter-proliferation, cyber-crime, and not least big corruption acts, which are serious threats to national security, can no longer be proved using the complex technical means developed by the SRI,” Hellvig is quoted in a release on the service’s website.
He also mentioned that the SRI will abide by the CCR decision, and assured the partner institutions of the continued full support of the intelligence service.
”I am convinced that all the other institutions have the maturity and responsibility to compensate this drawback. (…) I think it is my duty as director to make sure that in the near future the Romanian Intelligence Service adapts to the action guidelines in relation with the challenges of the security environment, aiming at the fulfiment of all the security goals, with the strict observation of the legal provisions in force,” Hellvig concluded.
Constitutional Court President defends decision on phone tapping
Constitutional Court President Augusting Zegrean defended on Thursday a Court’s decision on phone tapping, saying it will not free any offender.
“You can be sure no perpetrator will escape punishment due to this decision. Neither those who already got final sentences, nor those to be sentenced in the future. (…) No one escapes due to this decision, because criminal prosecution was made even before tapping existed, and criminal prosecution will always be carried out, and the law stipulates who must do it. Did you know that in England interception cannot be used as trial evidence? And no one has been convicted, I think, based solely on one tapping. If the tapping is not supported by evidence, no one can be convicted,” Zegrean told the Realitatea TV private broadcaster.
He stressed that interception instruments belong to the state, and it remains to decided who uses them.
“What happened before the [CCR] decision is done; what follows after the decision will be different. And the world does not change, does not collapse after the decision. Just the criminal prosecution will be carried out by those who have to carry it out, namely the prosecutors and the judiciary police. We didn’t cause a disaster with this decision,” Zegrean insisted.
National Defence Supreme Council to hold meeting on Constitutional Court decision on phone tapping
The Presidential Administration confirms that the National Defence Supreme Council (CSAT) will meet Friday to discuss the decision of the Constitutional Court of Romania (CCR) on phone tapping. According to the source, after the CSAT meeting, President Klaus Iohannis will hold a press conference.