Considerations Regarding the Expertise of Optical Media that Contain the Results of technical Surveillance in Criminal Cases

• Author: Andrei Apostol
• Position: Lawyer, Iasi Bar, Romania
• Pages: 97-101

ISSN: 2067 – 9211 Legal Sciences in the New Millennium

97

Considerations Regarding the Expertise of Optical Media that Contain the

Results of technical Surveillance in Criminal Cases

Andrei Apostol1

Abstract: In order for the data that results from the technical surveillance to form a veritable means o f

proof, it is mandatory that such informations are not to b e altered in any way and that the original support

in which the data was printed to be kept secure. In the context of a society in which technological

advancements are increasing at a rapid rate, there exists a real risk of altering such evidence. As such, it is

in the prosecution's duty to secure the data resulting from technical surveillance. If there is doubt regarding

the authenticity of such recordings, the only method to verify the reality of the data resulting from technical

surveillances is a criminalistic expertise. Such an expertise can be performed in the course of a judicial

inquiry so that the court can verify if the technical surveillance data has not been altered or manipulated in

such a way that the actions of the defendants may gain criminal connotations. The jurisprudence is not

unanimous in this regard, but if an opposite hypothesis is to be acknowledged, it would lead to absurd

situations. Rejecting an expertise proposed in order to demonstrate the authenticity or the forgery of the

data obtained through technical surveillance means convicting a person on the basis of unverified proof,

while the European Court of Human Rights claims an express a posteriori verification regarding all

evidence materials.

Keywords: expertise; technical surveillance; interceptions; altering of proof

Related to the type of conversation or communication that is the subject of interference by the competent

authorities, technical surveillances can be classified into two categories: interception of conversations

carried directly, (this category referring to the interception of a human-to-human exchange with no

technical means) and the interception of postal mail, phone, fax, telex, e-mails, telegrams etc (Udroiu,

Slăvoiu, & Predescu, 2009, pp. 22-23).

According to article no. 138 paragraph 1, section d) of the Romanian Criminal Procedure Code, in order

to establish the factual situation, or for the identification of the culprits, the criminal investigation body

can resort to localization and tracking through technical means.

The liberty of the criminal investigation body in evidence-taking must meet a balance between the need

to protect the citizen’s right to intimacy and the fundamental principles of a criminal trial, the context

of which the right to a fair trial is of primordial importance (Grădinaru, 2018, p. 7).

In case-laws, the search warrants are issued with ease, especially in order to “prevent an imminent

danger”, even if the concept of an attack on national security covers only deeds that are already

committed, as provided by article no. 3 of Law 51/1991 regarding the national security of Romania

(Grădinaru, 2013, p. 71).

1 Lawyer, Iasi Bar, Romania, Address: 2 Sf. Lazar Str., Iasi, Romania, Corresponding author: apostol.andrei93@yahoo.com.