The High Court of Cassation and Justice recently announced that, since the beginning of this year, a number of 353 surveillance warrants have been issued (based on Law no. 51/1991 on Romania’s national security).
According to the Mareș & Mareș law firm, which specializes in white-collar crime, over 26,000 national security wiretapping warrants were issued in between 2009-2018, with a rate of up to 4,000 per year, out of which only two applications were rejected. This raises a concern whether the judges authorizing such warrants make an effective analysis of all legal requirements before approving the surveillance or orders such measure almost automatically.
In this context, it is surprising therefore that the Superior Council of Magistracy decided to reject the formal request for an inspection to be carried out at the High Court of Cassation and Justice, in order to establish the legality of issuing the national security warrants.
Compared to the number of warrants issued by the supreme court during 2017-2019 (2,816) and in previous years, this trend seems to be descending.
According to the Mareș & Mareș analysis, if we were to look beyond the statistics, the national security surveillance warrants have posed genuine problems of constitutionality and legality in the recent criminal proceedings. Telephone tapping and ambient surveillance are measures posing a high degree of intrusion into people’s privacy.
These aspects were also addressed in the ECHR well-established case-law (in cases such as Dumitru Popescu v. Romania no. 2 in 2007 or the more recent case Stana v. Romania in 2018). The Strasbourg Court has ruled that the issuance of surveillance warrants in corruption cases is a measure that has no legal ground and violates Article 8 of the European Convention on Human Rights, on the “right to respect the private and family life“. The ECHR found that the system of issuing national security warrants in corruption cases “does not ensure adequate safeguards“, showing, first of all, that intercepted persons cannot challenge interceptions in this form.
“It is a well-known fact that the National Anti-Corruption Directorate (“DNA”) used the national security warrants including in cases where the charges were not among those set out under Law no. 51/1991. Warrants were issued illegally to authorize and extend interceptions and recordings of any kind, even when there was no suspicion about actions that could have posed threats to Romania’s national security. These measures are particularly intrusive, first of all because the validity period of the authorization of these activities is six months, and can be extended up to two years“, added Mihai Mareș, Mareș & Mareș founding partner.
Another stringent issue is that in some situations only the authorization / extension warrants are submitted to the case file provided they are declassified – but authorities refuse to also declassify the rulings authorizing the interception and recording of telephone conversations, which would allow the accused to check their compliance with the law as well as the judicial reasoning on which they were based.
The use of such information as “evidence” may irreparably prejudice the right to a fair trial, given the due process rights in adducing evidence.
The case-law of the Constitutional Court in recent years has intervened to correct these arbitrary practices, forcing the legislator to balance forces and ensure a true “equality of arms” in criminal proceedings:
As such, in 2016, the Constitutional Court declared unconstitutional the provisions that allowed intelligence officers to carry out technical operations in applying the technical surveillance warrants ordered by judges. Multiple decisions of the Constitutional Court followed, which increasingly limited the effects of the involvement of intelligence services in the process of rendering justice. In this respect, the Decision no. 802/2018 stated that interceptions made by the Romanian Intelligence Service (SRI) based on national security warrants may no longer be used as evidence in criminal proceedings.
“As a result, in many cases, the preliminary chamber judges found the absolute nullity in releasing the interceptions and excluded the media on which the recordings were stored. On the other hand, we cannot expect that these warrants are no longer issued. Their main objective is to gather information for national security purposes, and the National Security Law has not undergone significant changes in recent years. Only the lack of an effective control of their use in the criminal cases instead of national security matters is actually problematic”, concludes Mihai Mareș.