Considerations on the Interceptions and Audio-Video Recordings Related to the Convention on Human Rights and Fundamental Freedoms

• Author: Sandra Gradinaru, PhD
• Position: Senior Lecturer -Al. I. Cuza University of Iasi
• Pages: 80-95

Page 80

On one hand, the Roman legislature's goal was to make sure that the guarantees imposed by the Constitution and by the Convention for defending human rights and basic liberties were respected, through the changes made in legal provisions regarding interceptions and audio-video recordings.

But, on the other hand, law texts referring to interceptions and audio or video recordings as proofs pose problems, both from the point of view of their conformity to constitutional and European provisions and the application of these provisions.

In order to justify exceptions of unconstitutionality, it was supported the idea that the legal provisions mentioned contravene constitutional provisions from article 16 referring to equal rights, article 21 paragraph (3) concerning the right to have an equitable trial, article 24 paragraph (1) about the guarantee of the right to be defended, article 124 referring to doing justice, article 28 concerning the secrecy ofPage 81correspondence and article 53 about restriction on the exercise of certain rights or freedoms, because an obvious disproportion is created in favour of the penal investigation body, the accused are devoid of any efficient means of protecting themselves, showing that recordings and interceptions are unwarranted or unfounded.

Regarding these claims, the Constitutional Court found them unfounded; moreover, article 91.1 Criminal Procedure Code having the marginal name of "Conditions and cases of interception and recording conversations or communication made by telephone or any other electronic device for communication" and article 91.2 Criminal Procedure Code having the marginal name "Bodies that intercept and record, both from the Criminal Procedure Code", have sufficient procedural safeguards to ensure the right to a fair trial¹.

On the other hand, the Court showed that any breach of these regulations is not a question of constitutionality, but one of application, but this exceeds the competence of the Constitutional Court, while examining and solving these problems are the exclusive competence of the court vested with criminal trial settlement.²

Specialized literature underlines that current regulations related to interceptions and audio-video recordings show the national legislative concern for aligning domestic provisions with those of international and European standards regarding protection and defense of human rights. Thus, national provisions were put in agreement with the European Court of Human Rights in Strasbourg, showing the need for a judicial review from independent and impartial magistrates empowered to decide on the opportunity and necessity of using these investigation methods. (Dambu, 3/2007, pp. 116-119)

Taking into account article 91.1 paragraph 1 Criminal Procedure Code, interceptiona dn audio-video recording can be used only when these are needed to establish the right situation because the identification or location of participants cannot be made through other means or the investigation would be much delayed.Page 82

We notice that this express provision of law is strictly interpretable, the legislative establishes that the means of interception and recording are to be seen as additional, only if classic methods cannot lead to establishing facts or to identification of the perpetrators.

The exceptional nature of the measure is emphasized by the repetition, in different forms, of the requirement not to be authorized except for the case when the truth cannot be revealed in another way: "it is require in order to reveal the truth", "this method is essential to ascertain truth", "serious crimes which cannot be found or whose perpetrators cannot be identified through other means", according to article 91.1. Though the text contained a list of serious crimes, invoking even Law 78/2000, the list only provides examples, because in the end, it refers to any other serious crimes for which this measure is essential. (Harastasanu, 2/2004, pp. 69-74) Contrary to these ideas, it was expressed the opinion that interceptions cannot be pursued in any crime, except for the ones named expressis verbis in the article 91.1 paragraph 2, for which prosecution is done automatically. (Jidovu, 2007, p. 203)

Another guarantee against authorities' interference in intimate and private life of people by intercepting and recording conversations is the obligation of doing these only after having court authorization containing all the elements provided by article 91.1 paragraph 9 Criminal Procedure Code.

This authorization can be asked by the prosecutor that "performs or supervises penal investigation". In the previous regulation, it was written that interception and audio-video recordings were done on the request of the "prosecutor", this aspect strengthens the idea that legal provisions regarding interception ask for legally- started penal prosecution.

A guarantee provided by Criminal Procedure Code also establishes some rules regarding the period for receiving authorization of interception and recording audio or video materials, this period cannot be longer than 30 days, while the total amount of time for intercepting one person cannot last more than 120 days. But, if during the interception, there are solid evidence regarding the preparation or accomplishment of serious crimes, it is legally possible to ask for another interception and recording regarding the new crime. In this way, it is possible to intercept and record communication for the same person on a period longer than 120 days, as it is written in article 91.1 paragraph 5 Criminal Procedure Code.

The stipulations of article 91.1-91.6 Criminal Procedure Code were repeatedly subjected to constitutionality control, the main argument to support the idea thatPage 83these stipulations oppose the provisions from article 26, article 28 and article 53 from the Constitution in connection to article 8 from the Convention for defending human rights and fundamental liberties was that the prosecutor that carries out or supervises criminal investigation can approve audio-video interception before starting criminal investigation, before the penal trial starts or before a crime is committed.

Regarding this censure, the Court noticed through Decision no. 1556 from 17.11.2009 that these have been subjected to control or similarly criticized, being analysed when it was given the Decision no. 962 from 25 June 2009 and Decision no. 410 from 10 April 2008 that rejected similar exceptions as unfounded.

Constantly, the Court considered that relative provisions regarding interceptions and audio-video recordings provide sufficient guarantees, establishing by law the detailed justification of giving an authorization, the conditions and methods for recording, establishing some limits regarding the length of measuring, written recording and attesting the authenticity of recorded calls, the possibility of hearing the entire recording, defining intercepted characters; the possible failure of respecting these regulations is not a matter of constitutionality, but one of application that is beyond its competence.³

Moreover, the Court established that "precursory documents have their specificity which cannot be identified or connected to the specificity of other institutions, having as a purpose the verification and completion of information had by criminal investigation bodies in order to have a basis for penal investigation. Having a suigeneris character that does not depend on the hegemony of guarantors imposed by the specific stage of criminal investigation, it is unanimously accepted the fact that during previous investigations, it is forbidden to take court measures or to use evidence that suppose the existence of a started penal trial."Page 84

The Constitutional Court established that The European Court of Human Rights itself validated provisions subjected to constitutionality control, in the trial Dumitru Popescu versus Romania from 26 April 2007. At that moment, on one hand, it was considered that the law was broken; precisely it was contravened article 8 from the Convention, because at the time of doing the illegal deed, the legislation was different. On the other hand, the Court in Strasbourg claimed that in the new legislative frame (through the modifications of Law no. 281/2003 and Law no. 356/2006), there are numberless guarantees regarding interception and transcription of calls, creating archives for valid data and destroying the unnecessary ones. In this respect, The Constitutional Court considered that the criticized provisions offered protection against arbitrary involvement in a person's exercise of the right to live, the law contained terms having unequivocal meaning.

We notice the description of the unequivocal interpretation according to which obtaining such proof means prior to criminal investigation, against the specific roles for a penal trial, is bound to hurt the trial's equity and the immunity of the secret of correspondence.

Connected to the appraisal of the Constitutional Court expressed above, in order to appreciate if the interference of public authorities is justified and respects the rules imposed by the provisions of article 8 from the Convention, The European Court of Human Rights envisages compliance to rules imposed by the second paragraph of the mentioned article.

The European Court of Human Rights believes that the notions "private life" and "correspondence" in the context of article 8 paragraph 1 also refer to phone calls, therefore their interception, recording data and their possible usage in a criminal investigation against a person is "an interference from public authority" while exercising the right guaranteed by article 8 from the Convention (the trials Calmanovici against...