From different perspectives and interests, the matter of the former “strictly confidential” classified protocols concluded between the Prosecution Body attached to the High Court of Cassation and Justice and the Romanian Intelligence Service, dated 2009 and 2016, regarding the cooperation between the two institutions in view of fulfilling the tasks in the national security domain, has been under debate for a very long time.

The protocols mainly concerned the public prosecutions unfolded by the specialized prosecution structures: the National Anticorruption Directorate and the Directorate for Investigating Organized Crime and Terrorism. The aforementioned documents established – inter alia – technical support in tapping the conversations, common action plans, mixed teams between prosecutors and intelligence officers.

The range of offences deemed as an attempt to the national security and, consequently, triggering the competence of the Romanian Intelligence Service, was extended by way of interpretation of the notion of severe offences breaching people’s fundamental rights. Consequently to this extended interpretation, corruption or tax evasion cases fell under the area of such cooperation between prosecutors with the intelligence officers.

In regards to the procedure of taping conversations or any other type of technical surveillance, the special laws regulating the national security domain allow the High Court of Cassation and Justice to issue warrants before any public prosecution is started.  In practice, the documents obtained following such operations of getting information  was sent to the prosecution body as a  single file that included the evidence. At this point, the prosecutor would start the public prosecution and would call people in for hearings by simply using   intercepted conversations or other types of technical surveillance.

The chronology of the relevant decisions issued by the Constitutional Court

The new Code of Criminal Procedure, enacted in February 2014, has been subject to numerous corrections made by the Constitutional Court’s decisions.

The first decision related to the involvement of the Intelligence Services in public prosecutions was Decision No. 51/2016 when the Constitutional Court stated as unconstitutional the provisions allowing the intelligence officers to perform technical support operations in the application of technical supervision warrants issued by judges. According to the basis of such decision, the facts that may trigger criminal framing exceed the competence of the Intelligence Services and they can only be prosecuted by the judicial bodies according to the Code of Criminal Procedure.

Decision No. 302/2017 of the Constitutional Court subsequently added that the breach of competence of the criminal prosecution bodies (not only the violation of the courts’ competence) triggers absolute nullity – a sanction that can be invoked in any stage of the criminal proceedings. As further developed by the case law of the Constitutional Court, this idea is important, since the involvement of the secret service officers in the conduct of criminal prosecution means eo ipso the breach of the prosecutors’ competence and this is a ground for absolute nullity of the acts thus carried out.

Decision No. 22/2018 of the Constitutional Court ordered that all evidence able to be removed from the file also be  physically excluded (transcripts from the indictment, transcripts from the entire content of the file, optical supports of the interceptions a.s.o.).

Decision No. 91/2018 placed outside the constitutional order, the very legal provision of Law No.51/1991 on the national security of Romania, which allowed the former enlarged legal interpretation that included corruption and tax evasion cases in the area of severe offences breaching people’s fundamental rights. The ground of such decision relied on the primacy of the quality of law, which needs to be strictly clear and not subject to a broad and discretionary interpretation. Once again, the Constitutional Court resumed that all criminal deeds must be prosecuted exclusively by the prosecution bodies.

Decision No. 651/2018 stated that the decisions of the Constitutional Court have a power equal to law.

Decision No. 26/2019 placed outside the constitutional order, the protocols concluded between the Prosecution Body attached to the High Court of Cassation and Justice and the Romanian Intelligence Service, dated 2009 and partially in the one dated 2016. The Court also resumed that the absolute nullity is the sanction that should apply to any deed performed by the intelligence officers in criminal files, reasoning that by such conduct the competence of the prosecution body was breached.

The consequences in the current case law

On the one hand, following Decision No. 51/2016, the courts began to exclude evidence consisting of intercepted conversations ordered by the judge and technically performed by the intelligence officers, but solely during the preliminary chamber stage and as a consequence of the relative nullity sanction. In other words, those intercepted conversations performed by way of national security warrants issued by the High Court of Cassation and Justice remained effective.

Hardly after Decision No. 91/2018 and mostly after Decision No. 26/2019, the case law began to exclude evidence gathered by the intelligence officers (intercepted conversations, technical evaluation reports, relational schemes a.s.o) as a consequence of the absolute nullity sanction, including during the judgement stage – on the merits of the case or in appeal. Such case law is not yet unitary, but certain decisions were awarded in this respect, both by the High Court of Cassation and Justice or courts of appeals, excluding the intercepted conversations formerly performed based on warrants issued by the High Court of Cassation and Justice under the legislation regarding the national security.

On the other hand, Decision No. 26/2019 requires courts to research the pending files whether the competence of the prosecution bodies was breached as a consequence of the involvement of the Intelligence Services.

Thus, the defense of the accused persons nowadays is focused on disclosing the total level of cooperation between secret services and the prosecution body. To this end, the defense is asking the courts to issue requests addressed to the Intelligence Services as well as to the prosecution bodies to reveal the deeds that were the outcome of such cooperation, based on the unconstitutional protocols concluded since 2009. The key-point in such approach is to prove, even at a minimal level or in terms of reasonable suspicion, that such cooperation did exist in a particular file, in order to convince the judge to address the requests to the said bodies. As a case law element, during 2012-2016, the prosecution bodies used to frequently publish press releases concerning the files in which they initiated the criminal proceedings or sent the case to court. They also stated to the end of these press releases that the prosecutors benefitted from the support of the intelligence officers.

Conclusions and perspectives

The case law is far from being unitary. There are still courts rejecting requests for evidence with respect to the cooperation between the Intelligence Services and the prosecution bodies.

Moreover, in those cases where the courts allow such claims and request the Intelligence Services to provide all the content of such cooperation, the Intelligence Services may respond by designating that cooperation “strictly confidential level documentation” prohibiting access to lawyers or defendants unless they are in possession of a special certificate issued by the National Registry Office for Classified Information (“ORNISS certificate”).

Recently, legislation has changed allowing only judges and prosecutors, but not the attorneys,  the ability to observe such information. No one can compel a lawyer to apply for the special certificate.  However, as the decision is discretionary, it may or may not be awarded. In the case of a rejection, it is not effectively grounded.

In any case, the Code of Criminal Procedure provides that an accused person cannot be convicted on classified information. Solving this issue is the next step in the saga of dealing with the cases involving the contribution of the intelligence officers.

Also, it will be difficult  for the courts to clarify the issues raised by such responses from the Intelligence Services, because the court has to ensure the principles of equality of arms and contradictions between the accusation and the defense.

In other words, the law provides that an information favoring or hiding the breach of law by an authority or by a public institution cannot be classified. And the above mentioned Decision No. 26/2019 of the Constitutional Court just declared the illegality and unconstitutionality of the protocols and the activities carried out on them and obliges the courts to verify the violation of the competence of the criminal prosecution bodies in pending files. A first step for such verification is the very disclosure of the content of the cooperation, which contradicts the idea of ​​answering the court with “strictly secret” documentation, as the very protocols on which the acts were made have been declassified. If such hypothesis were accepted, the measure taken by the courts to issue requests to the Intelligence Services for providing information/documents would become void of any content and it would contravene the principles of lawfulness of the criminal proceedings, finding the truth and equality of arms between the accusation and the defense.