Observations on the Judicial Expertise of Devices that Contain the Results of the Technical Surveillance Activity

• Author: Sandra Gradinaru
• Position: Associate Professor, PhD, Alexandru Ioan Cuza University of Iasi, Romania
• Pages: 66-71

European Integration - Realities and Perspectives. Proceedings 2019

66

Observations on the Judicial Expertise of Devices that Contain the Results

of the Technical Surveillance Activity

Sandra Gradinaru1

Abstract: The present paper aims to analyze the judicial expertise of de vices that contain the results of the

technical surveillance activity from a procedural point of view. The constant evolution of technical methods to

obtain evidences in criminal trials led to t he development of new types of expertise in various fields. One of

these is the expertise of any device or optical support on which recordings of intercepted conversations are

stored. Statistical data from the courts shows that technical surveillance is very common in Romania, being

used as proof for various crimes from white collar crimes such as abuse of office or bribery to violent crimes

or drug trafficking. Yet, being electronic the recordings can be forged, fragmented, collated aspect that can lead

to unlawful trials or abuses from judicial bodies.In order to prevent that, the doctrine and the jurisprudence

stated that the court may order technical expertise of the recordings to verify their the authenticity and

continuity. If it is found, after e xamination, the lack of authenticity of t he records or interfering mixes in the

text or removal of passages of conversation, they cannot be retained in the case and cannot be used as evidence.

Furthermore, judicial expertise of devices that contain the results of the technical surveillance activity can prove

to be of real value in different kinds of criminal trials, from corruption cases, to murder trials, drug trafficking,

human trafficking, etc. The academic and practical interest of the present study lies in the fact that it addresses

both law theorists and practitioners in the field as it analyzes how judicial bodies can use the judicial expertise

in the criminal trial and how to corroborate such a report with the other evidences administered by classic

methods.

Keywords: judicial expertise; probative value; criminal trial; technical surveillance

The need for verification of evidence by the court is a demanding one that derives from respect for the

principle of equality of arms and the right to defense and is presented in the form of a posteriori

guarantee.

Even if the probative procedures representing the technical surveillance measures are subject to strict

conditions from the point of view of the provisions regarding the certification, the very strict observance

of the steps provided by the law does not remove the possibility of altering the data resulted from the

technical supervision by truncation or assembly.

We appreciate that the provisions of art. 1421 C.pr.pen. presents in this perspective more guarantees than

previous regulation, by making it possible to ensure the electronic signing of data from technical

surveillance.

To this end, any authorized person carrying out technical surveillance activities has the possibility to

ensure the electronic signing of the data resulting from the technical surveillance activities using an

extended electronic signature based on a qualified certificate issued by an accredited certification service

provider.

1 Associate Professor, PhD, Alexandru Ioan Cuza University of Iasi, Romania, Address: Blvd. Carol I, no. 22, Iasi, Romania,

Tel.: +40232201102, int. 2377, Fax: +40232217000, Corresponding author: sandra.gradinaru@yahoo.com.