Audio and Video Interceptions and Recordings in Criminal Law in Romania

AuthorIon Neagu; Mircea Damaschin
Pages202-216

Ion Neagu. Professor Ph.D., Law Faculty, “Nicolae Titulescu” University, Bucharest (e-mail: ion.neagu@univnt.ro).

Mircea Damaschin. Lecturer Ph.D., Law Faculty, “Nicolae Titulescu” University, Bucharest (e-mail: mircea.damaschin.lesij@univnt.ro).

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Introduction

The possibility to use in the criminal law in Romania the sounds or images recordings was regulated, for the first time, by the Law no 141/1996. Thus, by this normative act, at Title III “Evidence and Evidence Means”, Chapter II “Evidence Means” was introduced Section V¹ “Audio or Video Recordings”. Subsequently, by Law no 281/2003, the name of this section was changed to “Audio or Video Interceptions and Recordings”. The new regulation added to the already existing evidence means, two new more: audio recordings and the images recordings (video or photo).

Literature review

The issue of the judicial authorities’ interference in the private life of the individual by violating the right to correspondence privacy is widely discussed by the national specialized literature, and mostly by the international one. We are taking into account, on national level, a series of studies, as follows: Ioan Lascu, Particularităţile de investigare şi cercetare a infracţiunilor de corupţie în lumina noilor modificări legislative, Revista Dreptul no 11/2002, pages 137-148; Mircea Damaschin, Înregistrările audio sau video şi fotografiile, Revista de Drept Penal no 3/2001, pages 49-56; Augustin Lazăr, Interceptările şi înregistrările audio sau video, Revista de Drept Penal no 4/2003, pages 36-51; Angela Hărăştăşanu, Interceptarea şi înregistrarea convorbirilor sau comunicărilor, Revista de Drept Penal no 2/2004, pages 69-75;Page 203 Dan, Unele observaţii privind interceptările şi înregistrările audio sau video, Revista Dreptul no 2/2005, pages 169-171; Camelia, Interceptările audio şi video, Revista de Drept Penal no 1/2006, pages 106-113.

Referring to the studies published in important international law magazines, we would like to mention Frédéric Sudre, Droit de la Convention Europeene des droits de l'homme published in La Semain Juridique – Edition generale, 05 février 2003; Andy Roberts, Identification of suspects from CCTV and Video Recordings, Journal of Criminal Law, no 67/2003; Nick Taylor, Abuse of process: Destruction of CCTV Evidence, Journal of Criminal Law, no 67/2003, Andrew Roberts, Covert Video Identification: European Convention on Human Rights, Article 8, Journal of Criminal Law, no 67/2003; Nick Taylor, Interception of Communications: Failure to Comply with the Right to Private Life Journal Of Criminal Law, no 67/2003; Andrew Roberts, Regulation of Investigatory Powers Act 2000: Private Surveillance, Journal of Criminal Law, no 70/2006.

Audio and Video Interception and Recordings in Criminal Law in Romania
1. Preamble

According to article 91¹, paragraph 1 of the Code of Criminal Procedure, the interception and recording of conversations and communications made by phone or by any other mean of communication are made only based on the motivated authorization of a judge, upon the request of the public prosecutor who performs or surveys the criminal investigation, under the conditions prescribed by the law, if there are solid clues or data on the preparation or perpetration of an offence for which the criminal investigation is performed ex officio, and the interception and recording are essential to establish the matter of fact, or because the identification or the localization of the participants may not be made by other means, or because the investigation would be delayed too long.

By reference to the former article 91¹, paragraph 1, previous to passing the Law no 356/2006 (“the interception and recordings of certain conversations or communication, on magnetic tape or any other type of support, shall be performed only with the motivated authorization of the court, upon the request of the public prosecutor, in the cases and under the conditions prescribed by the law, if there are solid clues or data on the preparation or perpetration of an offence for which the criminal investigation is performed ex officio, and the interception and recording are essential in order to determine the truth”), there may be expressed a series of observations, as follows. First of all, it was completed the regulation which mentions the interception and recordings object. Thus, previous to the Law no 356/2006, the interception and recordings aimed “the conversations or the communications”. De lege lata, are taken into account “the conversations or communications made by phone or by any other electronic mean of communication” Secondly, for a greater strictness of expression, the interception and the recordings are ordered upon the request “of the public prosecutor who performs or surveys the criminal investigation”. Previously, the court was notified by the “public prosecutor”.

As a conclusion, the interception and the recordings of conversations and communications presumes the fulfillment of the following conditions:

a). the existence of the judge’s motivated authorization;

b). the existence of solid clues and data on the preparation or perpetration of an offence for which the criminal investigation is performed ex officio;

c). the interception and the recordings are essential to establish the matter of fact, or because the identification or the localization of the participants may not be made by other means, or because the investigation would be delayed too long.

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2. Essential conditions for performing the interception and recordings of the conversations and communications made by phone or by any other electronic mean of communication

2.1. Regarding the first condition, previous to the modifications occurred during 2006, the authorization to perform interception and recordings was ordered by the president of the court which had the authority to try the case in the first instance. As a result of the provisions introduced by the Government Emergency Ordinance no 60/2006, the activity of authorizing the audio interception and recordings was granted to the president of the competent court, if the president is absent, the authorization may be given by a judge appointed by the court’s president. Despite the obvious hesitations of the legislator, we consider that the current effective law text, subjected to analysis, complies best with the imperatives aiming to determine the truth in a criminal trial, but also, but also with the requirements on observing the fundamental rights and liberties of individuals (for the present case, the right to private life and correspondence privacy).

By the new provisions, it was regulated an alternative territorial authority, the authorization may be ordered at the level of the court which would have the authority to try the case in the first instance, or at the level of the court corresponding as rank to the court which would have the authority to try the case in the first instance, under which jurisdiction it is found the prosecutor’s office of the public prosecutor who performs or surveys the criminal investigation. The regulation is not above criticism. Thus, the court which tries in the first instance is determined by reference to the provisions of article 31, paragraph 1, in case of simultaneous notification. Of these courts, the authority belongs to the court under which jurisdiction was performed the criminal investigation, meaning to the court under which jurisdiction it is found the prosecutor’s office of the public prosecutor who performs or surveys the criminal investigation. Therefore, in the event the criminal investigation is performed under the jurisdiction of a court other than the one authorized to try in the first instance a legal transfer of authority shall take place, justified by the criminal trial promptness. In this way, it is established an alternative territorial authority between two courts but for which there are used wordings signifying a sole court, the one that shall try the case in first instance.

Under certain special situations, in case of emergency, when a delay in obtaining the authorization under the common conditions, showed above, would generate serious damages to the investigative activity, the public prosecutor who performs or surveys the criminal investigation may order, as a temporarily title, by motivated ordinance, recorded in the register particularly provided by article 228, paragraph 1¹,1 the interception and recording of conversations and communications on a period of maximum 48 hours (article 91², paragraph 2 of the Code of Criminal Procedure, as modified by Law no 356/2006).

In light of article 91², paragraph 3 of the Code of Criminal Procedure (as modified by Law no 356/2006), within 48 hours since the expiration of the term provided...

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