Evidence. Phone interceptions authorized in virtue of Law no. 51/1995. Exemption

DREPT PENAL ȘI PROCESUAL PENAL

Abstract

From the perspective of the Decision no. 91/2018 of the CCR, delivered after the ruling of the preliminary chamber judge which represents the object of these challenges, the results that the interceptions of phone conversations obtained as a result of the enforcement of the supervisory warrants issued according to Law no. 51/1991 should be exempted from 
the evidence produced in the criminal prosecution casefile. The provisions of Law no. 51/1991 shall not confer the capacity as evidence, means of 
evidence to data and information resulting from the activities specific to the collection of information supposing the limitation of exercise of certain human fundamental rights. In this case, the technical supervisory warrants ordered according to Law no. 51/1991 were issued and enforced prior to the ex officio notification supporting this casefile. These  conversation interceptions supporting the prosecution of the defendants were carried out prior to the initiation of the criminal proceedings. 
The preliminary chamber judges, according to Art. 342 of the Code of criminal procedure are required to examine the lawfulness of producing evidence and performing acts by the criminal prosecution bodies. 
However, in our view, also sustained in the decision of the Constitutional Court of Romania no. 91/28 February 2018, these interceptions were performed prior to the initiation of the criminal proceedings, under the provisions of a special law, which do not set forth any legal possibility to change any data and information into means of evidence in the 
criminal proceedings. Therefore, it is required to exempt from the evidence of interceptions the certification reports of the registrations dated 13 October 2014 and 21 October 2014 as they were not performed during a criminal proceeding, and thus, the defendants’ right to a fair trial, as regulated in Art. 6 of the ECHR, was breached. The requests of the appellants defendants to find the absolute nullity of the phone conversations interceptions used in the casefile, were not granted. 

The defenders of the defendant A.A. essentially substantiated their defense on the fact that certain national safety warrants were issued on the defendant’s name, but he was sued or investigated neither in this casefile, nor in another casefile for such offenses and accordingly, nor in another casefile for such offenses and therefore, these warrants are 
illegal. The Constitutional Court of Romania found that the purpose for which the activities carried out in the national security field are used, is different from the purpose of the criminal procedural activity. 
The former activities are focused on knowing, preventing and removing the internal or external threats for the purpose of ensuring national security, and the other activities are intended to hold the persons who committed offences criminally responsible. Thus, a systematic and teleological interpretation shows that Law no. 51/1991 and the Code of 
criminal procedure have different purposes, which are also reflected in the purpose for which it is ordered the authorization of certain activities specific to the collection of information supposing the limitation of exercise of certain fundamental human rights and freedoms/measure of technical supervision. In other words, the existence of a situation which is a threat to national security does not automatically and necessarily involve the preparation of committing of an offense against national security, and the means of preventing threats to the national security cannot limit to fighting offenses. An argument to this end is represented, for example, by the measures which the Romanian state could take in relation to aliens. Accordingly, Art. 86 of the Government Emergency Ordinance no. 194/2002 on the regime of aliens in Romania, as republished in the Official Journal of Romania, Part I, no. 421 of 5 June 2008, as subsequently amended and supplemented, regulates the measure of declaring as unwelcome, a measure which is ordered against an alien who carried on, is carrying on or there is reasonable indication that he intends to carry on activities likely to jeopardize national security or public order. Concluding, the source of notifying the criminal prosecution bodies is illegal, and thus, the ex officio notification report is legal, as well as the subsequent documents, respectively the ordinances lodged.