Reactions continue after Criminal Procedure Code stipulations on wiretapping were declared unconstitutional
The Constitutional Court (CCR) decision that declares unconstitutional the Criminal Procedure Code stipulation according to which technical surveillance can be conducted “by other special state institutions” other than the criminal investigation institution or specialized police workers was published in the Official Gazette on Monday evening.
Also on Monday evening, the government emergency ordinance (OUG) concerning certain measures for the enforcing of technical surveillance warrants ordered as part of the criminal probe were also published in the Official Gazette.
On February 16, the Constitutional Court decided, with a majority of votes, to admit the unconstitutionality exception and noted that the “or other special state institutions” term is unconstitutional.
According to the CCR explanation published on March 9, the CCR decision to declare unconstitutional the Criminal Procedure Code article on whose basis the Romanian Intelligence Service (SRI) was carrying out wiretappings is applicable to ongoing cases. In the explanation, the Court mentions once more the erga omnes and ‘for the future’ character of its decisions.
“This means that, during the whole period of activity of a legislative act, it enjoys the presumption of constitutionality, so that the decision will not be applied in the cases that were settled for good at the time it is published, however, being applied in the cases that are on the courts’ roll,” the CCR points out.
The unconstitutionality exception that concerns SRI’s wiretapping was invoked in a Bucharest Court trial. Following the CCR decision, the Government approved during the special meeting on Friday the emergency ordinance that establishes that the wiretappings that concern criminal and national security matters can be carried out through the National Centre for the Interception of Communications. Prior to that, the legislative act received the Supreme Defence Council’s (CSAT) favourable opinion. Justice Minister Raluca Pruna explained that the solution found by the Government, through the current emergency ordinance, can be a temporary one, however it depends on society, which will have to decide what kind of “architecture” it wants to have in what concerns wiretappings, a debate in this sense being necessary.
According to the emergency ordinance, SRI organs could be designated criminal prosecution organs in cases of national security and terrorism.
US Embassy salutes change of legislation in wiretappings domain
The US Embassy in Bucharest salutes the measures adopted by the Government to align the law with the recent Constitutional Court (CCR) decision related to the use of evidence obtained through technical surveillance and to maintain the capabilities of rule of law agencies to continue their important work against international organized crime, corruption, cybercrime and terrorism.
“The U.S.-Romania Strategic Partnership has resulted in increasingly close and important law enforcement cooperation in support of the fight against international organized crime, corruption, cybercrime and terrorism. The Embassy of the United States welcomes the efforts of the Government of Romania to align the law with the recent Constitutional Court decision related to the use of evidence obtained through technical surveillance and to maintain the capabilities of rule of law agencies to continue their important work,” a communiqué remitted to the editorial office reads.
British Embassy trusts Romania to use phone surveillance in accordance with laws and Constitution
Likewise, the British Embassy also reacted on Tuesday, pointing out in a press release that it supports the fight against corruption and that “the Romanian state is the one to decide how the wiretapping is conducted.”
“United Kingdom particularly appreciates the cooperation with Romania in combating organized crime. Likewise, United Kingdom supports the fight against corruption. Technical surveillance warrants play an important role in both directions. The Romanian state is the one to decide how the wiretapping is conducted. We trust Romania will make sure to have the capacity to carry out and use the results of these wiretappings, while respecting the law and the Constitution. At the same time, we hope that on a bilateral plane our collaboration in what concerns the enforcement of the law will not stand to suffer,” the British Embassy in Romania shows.
SRI sued for illegal wiretapping
Catalin Georgescu, the lawyer that notified Romania’s Constitutional Court about SRI’s wiretapping, announces that he has “sued the Romanian state, the Public Ministry and SRI,” asking for RON 250,000 in damages.
“I have sued the Romanian state, the Public Ministry and SRI in order for them to pay damages to my clients for illegally monitoring and intercepting their phone calls before and after the investigation started. I have asked for RON 250,000 in material and moral damages and for the decision to be published on the first page of the institution’s website, in three dailies and on three channels in full, and on three national television channels in summary, at the defendant’s expense,” lawyer Catalin Georgescu stated. The file is the one in which CCR was notified about the institutions qualified to enforce surveillance warrants, notification as a result of which CCR decided that SRI cannot carry out wiretappings because it is not a criminal investigation body.
Alina Gorghiu: Discussion is taking place in an “electoral key”
PNL Co-President Alina Gorghiu stated for RFI that “most of the talks on the topic of this Constitutional Court decision and on the topic of the Emergency Ordinance is unfortunately taking place in an electoral key.”
She added that the emergency ordinance is a temporary solution.
“I believe that the solution found, that of an emergency ordinance issued by the Government and approved by the CSAT is a temporary one and is reasonable only for a short period of time, until Parliament legislates,” Gorghiu said.
UDMR: Draft on revision of decisions, applicable to those sentenced based on wiretappings too
UDMR MP Seres Denes, one of the initiators of the draft law that stipulates that court decisions that disregard CCR decisions are null and void, stated for Mediafax that it could also be applied to those who were sentenced based on wiretappings.
“By declaring those Criminal Procedure Code articles unconstitutional, and since those wiretappings formed the basis of decisions or criminal cases, of course these provisions should be revised too, in order to be put in line with the provisions of the Constitutional Court decision,” Seres Denes stated for Mediafax. He added that, in the end, the court is the decisional factor in the case of revision.
General Prosecutor’s Office: We will certainly stand to suffer. No wiretapping is stopped
Bogdan Licu, First Deputy General Prosecutor, stated on Monday that the regular prosecutor’s offices, not DNA and DIICOT, are currently working on around 400 cases with the Romanian Intelligence Service (SRI), with the enforcement of the wiretapping warrants set to be taken over by the Romanian Police’s Special Operations Directorate (DOS).
At the presentation of the Public Ministry’s 2015 review, Bogdan Licu pointed out that together with the Interior Ministry solutions will have to be found in order for prosecutors to be able to carry out their criminal prosecution activities in good conditions, including by taking over 40 judicial police officers.
“We are trying to function at optimal parameters, without interruptions in the criminal prosecution activity. In what concerns the emergency ordinance, it gladdens us prosecutors. For the first time, regular prosecutor’s offices will have judicial police officers. Obviously, the 40 judicial police officers are not sufficient, however it is a start and together with the Interior Ministry we have identified solutions in order to be able to function at normal parameters, and will conduct periodical analyses of the CCR decision’s impact on our activity,” Bogdan Licu pointed out.
He explained that in the cases in which prosecutors work with SRI no wiretapping will be stopped.
“From the moment the CCR decision is published in the Official Gazette, the wiretapping warrants carried out along with SRI will be stopped and they will continue through the Romanian Police’s Special Operations Directorate,” Bogdan Licu added.
Licu pointed out that prosecutors who are working on cases that feature wiretappings will issue ordinances putting an end to wiretappings carried out with SRI and continuing them with Romanian Police’s DOS. In fact, even before the CCR decision prosecutors were working with DOS on certain cases.
In his opinion, the biggest problem for prosecutor’s offices are not the wiretappings but the installation of surveillance devices, surveillance, translation of intercepted conversations when foreign languages are used or the interception of online data.
“We will certainly stand to suffer, we won’t pretend everything will be like before. We hope the turbulences in our activity will be as small as possible,” Bogdan Licu emphasised.