Constantin Nedelcu. University Lecturer Ph.D, Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail: email@example.com).
The ascending evolution of crime in Romania is the consequence both of the impact of serious economic and social problems specific to the period of transition towards market economy, and of the wrong understanding of freedoms by many persons interested in gaining proceeds through evasion to which there is added also the tendency of offenders to create offending relationships in other countries, especially in the environment of persons belonging to immigrant groups and even within certain structures of “organized crime “.
The provisional situation present in all sectors of social, political and economic life, including in relation to public order observance, led to the increase of crime phenomenon, especially in the field of violent offences and of offences against public and private wealth, the non-settlement in an adequate way of all strained situations and social conflicts created precedents leading to the escalation of protest demonstrations and of personal or collective justice.
The complexity and amplitude of this phenomenon, of money laundering, can discourage any attempt of state control and create conditions for concealing the money derived from illicit operations. Contrary to a general impression, it is not true that most of these amounts of money result from criminal operations. We mention that “dirty” money and “hot” money does not mean the same thing. “Dirty” money represents only a small part of the “hot” money, and as far as concerns the first category, there is a clear distinction between the money which is dirty as they derive from criminal transactions and the money which, even though it has been gained legally, becomes dirty as its holders choose other practices, such as tax avoidance and illegal capital export.
Money circulates all over the world through the same geographical and institutional channels open to organized crime and used by it. For being transferred from one place to another, this money uses the same technology and tends to gather in the same places or at the same banks.
In these conditions the examination of the investigation methodology of offences leading to money laundering seems to be extremely important.
The applicable law sets forth several methods of investigating economic offences, among which there is also the money laundering:
- putting under supervision the bank accounts of investigated persons and of their assimilated accounts;
- putting under supervision or listening to the telephone lines;
- access to computer systems;
- requesting the communication of original documents or by private signature, of banking, financial or accounting documents.1
This probation institution is decided for the purpose of verifying the amounts of money to be transactioned by the persons charged with having committed money laundering offences or for deciding illegal financial and banking operations.
In order to decide to put under supervision the bank accounts and their assimilated accounts, the following conditions have to be met:
There should be solid evidence that a commission of money laundering offence is going to take place or that such an offence has been committed.
The solid evidence should concern the commission or the preparation of a money laundering offence granted by law under the competence of the National Anticorruption Directorate.
The person preparing the commission of one money laundering offence set forth by law or has committed such an offence should have bank accounts or their assimilated accounts and use them financial and banking operations.
The putting of the bank accounts and of their assimilated accounts under supervision should be useful in order to find out the truth.2
In connection with the information obtained by taking this action, art. 21 of the Government Emergency Ordinance no. 43/2002 sets forth expressly the obligation of the persons carrying on the criminal prosecution activity, the obligation of specialists, as well as of the specialty ancillary staff to observe the professional secrecy.
The putting under supervision or listening to the telephone lines is carried out when there is solid evidence concerning the commission of a money laundering offence, and is decided for the purpose of gathering evidence or of identifying the offender.
The measure may be decided by the prosecutors of the National Anticorruption Directorate for a period of maximum 30 days, according to art. 16 paragraph 1 of the Government Emergency Ordinance no. 43/2002. For solid evidence, the measure may be extended by the prosecutor by motivated ordinance, and each prolongation cannot exceed 30 days. It is worth pointing out that this measure is taken only after commencing the criminal prosecution activity.3
In order to authorize the access to computer systems, the following conditions have to be met cumulatively:
- that there should be solid evidence concerning the commission of a money laundering offence;
- that the evidence should concern the preparation of a money laundering offence;
- the person preparing the commission of a money laundering offence should use such computer systems;
- the access to these systems should be useful for gathering evidence or for identifying the offender having committed the money laundering offence.4
The measure is taken by the prosecutor of the National Anticorruption Directorate, by an ordinance, for a period of maximum 30 days. For solid reasons, the measure of the access to computer systems may be extended, by a motivated ordinance, by the same prosecutor, and each prolongation cannot exceed 30 days.
The provisions of art. 911-915 of the Code of Criminal Procedure., concerning the audio or video records, to which the special normative documents refer, shall be enforced accordingly.5
The doctrine appreciates that the access to computer systems may be made also on the occasion of the search. The judicial body, assisted by an IT specialist, will carry out the search with special precautions both when disassembling or assembling the equipment of a computer, as well as for the integrity and accessibility of data contained by it.
The audio or video records were introduced by Law no. 141/1996 for amending and supplementing the Code of Criminal Procedure and they are regulated in art. 911-915 of the Code of Criminal Procedure.
The legal doctrine considered that the audio or video records were technical methods of revealing and preserving the evidence, and the result of their usage – magnetic tape, film, photography, video tape belonged to the general category of material means of evidence.
According to art. 911 of the Code of Criminal Procedure, the phone conversations may be recorded on magnetic tape if there are data or solid evidence concerning the preparation or the commission of an offence for which the criminal prosecution is carried out ex officio, and the listening is useful. The audio or video records may serve as means of evidence if the contents of recorded conversations reveal facts or circumstances which may contribute to find out the truth6.
The prosecutor shall be authorized for the time needed for recording, up to a period of maximum 30 days, except as otherwise set forth by law. The authorization may be extended in the same conditions, for well-grounded reasons, and each prolongation cannot exceed 30 days.
The audio or video records may be made also upon the motivated request of the injured person concerning the communications addressed to him/her, under the authorization of the prosecutor appointed by the general prosecutor.
The criminal prosecution body is obliged, following the recording, to draw up an official report which should include, besides the general data set forth in art.91 paragraph 1 letters a-e of the Code of Criminal Procedure, the following specifications: the authorization granted by the prosecutor, the number or numbers of telephone stations between which the conversations arePage 115 held, the names of the persons holding the conversations, if known, date and time of each conversation, the registration number of the roll or of the tape on which the impression was made.7
The records of telephone conversations shall be given in writing and shall be enclosed to the official report after having been certified as true by the criminal prosecution body, reviewed and countersigned by the prosecutor carrying out or supervising the criminal prosecution. The roll tape containing the conversation record, in original, sealed by the criminal prosecution body with its own seal, shall be enclosed to the official report. According to art. 915 of the Code of Criminal Procedure, the audio, video or pictures records may be subject to technical expertise upon the request of the prosecutor, of the parties or ex officio. At the same time, these records may serve as means of evidence if not forbidden by law. The expert’s conclusions, even if they are not compulsory for the prosecutor, may serve to clarify the ground and to find out the truth...