Practical Aspects Regarding the Involvement of the Romanian Intelligence Service in Criminal Investigation Files - When the Technical Support Acquires the Value of a Criminal Investigation Act

Abstract

In the light of the Decisions no. 51 of 16-th of February 2016, respectively no. 26 of 16-th of January 2019 of the Constitutional Court of Romania, the national courts were invested with researching the manner in which the technical surveillance mandates were executed. Specifically, the defenders of the persons whose conversations were recorded requested to verify whether the technical surveillance mandates were executed by a competent authority. Nationwide, there was outlined a practice of the National Anticorruption Directorate to answer the questions addressed by the courts in the sense of specifying whether the Romanian Intelligence Service provided a simple technical support in the criminal investigation activity, without carrying out criminal investigation acts. The defense of the National Anticorruption Directorate was based on the fact that the technical support does not concretely imply a criminal investigation activity, aspect that was also held by the Constitutional Court of Romania by its Decision no. 26 of 16-th of January 2019, paragraph no. 155. The notion of “technical support” is a very vague one, being necessary a distinction between the simple provision of logistic support in order to execute the technical surveillance mandate by the competent body and the support of the Romanian Intelligence Service agents in the stage of obtaining evidence through the evidentiary procedure of interception and recording of telephone calls/ conversations. This paper aims to highlight, by means of examples from the national judicial practice, the cases in which the "technical support" provided by the Romanian Intelligence Service acquires the valence of a procedural act that must be sanctioned with absolute nullity.