In 2o23, the Romanian legislator initiated a process to update criminal legislation by aligning the provisions of the Criminal Code of Procedure in force and effect as off 2014 with several decisions of the Constitutional Court of Romania (the “Constitutional Court”) that found numerous procedural provisions in breach of the national 2003 Constitution and, by extension, of the European Convention of Human Rights and Fundamental Freedoms (the “Convention”) incorporated by reference in the national Constitution.

In essence, in the vast majority of cases, the constitutionality issues ascertained by the Constitutional Court concerned the quality and predictability of the law, and their remediation required swift intervention on the part of the lawmaker. However, such intervention did not timely occur, and consequently, the legal provisions found unconstitutional were not rectified, and simply came out of force.

One of the most pressing issues arising from the constitutional caselaw, and the lack of prompt action on the part of the lawmaker concerned the possibility to use information and data collected by the secret services (i.e., secret evidence) as evidence in criminal proceedings, specifically, secret wiretappings and recordings obtained through intelligence work, by restricting fundamental human rights and freedoms.

The original version of the 2014 Code of Criminal Procedure allowed the use of wiretappings and recordings obtained by the secret services as evidence in criminal trials. In fact, the 2014 Parliament passed legislation that allowed for secret evidence to be used in a wide range of criminal cases, not only matters of terrorism or offences against national security, but even common law offences, among which corruption or tax evasion. It sanctioned the courts’ use of secret evidence, and, depending on the level of secrecy, even prevented defendants from knowing the evidence against them, with special advocates appointed to represent them in secret hearings being prohibited from discussing the secret evidence with the defendants.

Subsequently, the Romanian constitutional jurisprudence, as it evolved over the last decade since the 2014 Code of Criminal Procedure came into force and effect, prohibited the secret services from becoming formal actors in criminal trials and their involvement into the pre-trial investigations or trials. However, information exchanges between intelligence services and the judiciary may occur, specifically if inklings as to the potential perpetration of a crime are identified during intelligence gathering works, in which case the intelligence services are under a legal obligation to notify the prosecution.

Furthermore, in 2020, the Constitutional Court of Romania found the use of secret evidence collected by intelligence services in criminal trials unconstitutional, given the lack of specific due process right guarantees and safeguards in respect of such, and, in particular, the absence of a clear and predictable legal framework to verify the legality of wiretappings and recordings produced by secret services.

In essence, the Constitutional Court ruled that while the possibility to use wiretappings and recordings obtained during intelligence work as evidence in criminal trials is not in itself unconstitutional, such use must be subject to due process guarantees, and, in particular, to an effective procedure of judicial control after the fact (i.e., a posteriori) of their lawfulness, carried out by an independent court that enjoys full jurisdiction.

The Constitutional Court further highlighted that the legality of wiretappings and recordings produced by secret services may not be verified solely in terms of compliance with the national security legislation, the scope and ambit of which is different than the scope and ambit of criminal law; and, at the same time, it may not be verified in terms of compliance with the rules of criminal procedure that were never applicable and assessed at the time when the evidence was gathered.

As in Romania the gathering of secret information by intelligence work restrictive of human rights and fundamental freedoms is subject solely to authorization by specially appointed judges at the level of the High Court of Cassation and Justice, the highest court in Romania, the Constitutional Court further ruled that judges at inferior court levels sitting in criminal trials may not carry out an effective control over the legality of the decisions made by the superior judges of the High Court to authorize wiretappings or recordings under national security legislation. As such, the Constitutional Court urged the legislator to establish a Convention-compliant, clear, and explicit procedure for the verification of the legality of such potential pieces of evidence.

In 2023, the Romanian legislator proposed a procedure where wiretappings and recordings produced by intelligence services may amount to evidence in criminal trials if they contain data or information that a criminal offence punished with imprisonment of 5 years or more occurred or is being prepared, the national security legislation was observed for their use, and the legality thereof is verified by the judge of instruction from the criminal court competent to settle the case on the merits in first instance.

In this manner, the 2023 lawmaker has failed to observe the constitutional benchmarks previously identified in the caselaw of the Constitutional Court, and adopted a procedure whereby the activity of the High Court on national security matters would have been verified by inferior courts. Furthermore, the only verification required of those judges concerns the compliance with the national security legislation, both solutions that have previously been rejected by the Constitutional Court.

Despite widespread criticism and opposition on the part of legal professionals, the draft law was adopted by the Parliament in April 2023, with both the Romanian Ombudsman and the High Court of Cassation and Justice raising objections with the Constitutional Court whereby they requested a constitutional control of the adopted law before its publication and coming into force.

By a decision issued on 17 May 2023 on the objections thus filed, the Constitutional Court of Romania found (among others) the procedure for the verification of wiretappings and recordings produced by intelligence services to be once again unconstitutional, with the final outcome and, as a result, returned the law to Parliament for re-examination, effectively blocking its coming into force and effect.

In essence, the Constitutional Court ruled that the lawmaker breached the Constitution and failed to observe the mandatory constitutional jurisprudence of 202o, by failing to establish an effective ulterior control procedure of the legality of wiretappings and recordings produced by intelligence services, because the legality control is to be performed by a court inferior to the one that originally authorized the wiretappings. The Court also ascertained that the lawmaker failed to establish any procedure of ulterior control over such recordings communicated to the criminal investigation bodies in cases where no indictment is ultimately issued, and the case is not sent to court (e.g., charges are dismissed, or the case is otherwise closed during the pre-trial investigation), so that the persons concerned may challenge the legality of the intrusive measures taken against them. Finally, the Constitutional Court criticized the absence of any procedure for the preservation and/or destruction of such pieces of evidence.

Accordingly, to date, issues affecting the quality and clarity of the law and the Romanian’s lawmaker inability, over the last three years, to design a clear and effective procedure for the ulterior judicial control of evidence produced by intelligence services risks to impair on the capacity of the Romanian justice system to promptly prosecute and deter severe crimes, while at the same time ensuring the due process rights and guarantees under the Convention and national Constitution. Such lacune in legislation impairs on the activity of prosecution bodies and courts, and also, on the activity of legal attorneys, whether they act for perpetrators, or victim, by creating an unpredictable, unstable legal environment that may ultimately clash with fundamental human rights.