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November 15, 2019

Constitutional Court: Wiretapping by agencies other than criminal prosecution bodies unconstitutional

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.

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.”

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