Interception Of Communications

DIICOT ordinance – interception of communications, searches of information systems

In connection with the Emergency Ordinance no. 131 adopted by the Government of Romania adopted on December 31, amending Law no. 508/2004 on the establishment, organization and functioning within the Public Ministry of the Directorate for the Investigation of Organized Crime and Terrorism, taking into account the events subsequent to the adoption of this normative act, SoJust would like to specify the following:

1. The procedure for adopting the normative act represented by the Emergency Ordinance no. 131/2006 violates the rules of decisional transparency specific to a rule of law and enshrined, on internal legislative level, by Law no. 52/2003 regarding the decisional transparency in the public administration.

The principles underlying decision-making transparency required the Romanian Government and especially the initiator of this normative act, namely the Ministry of Justice, to inform, consult and ensure the presence of citizens and legally constituted associations in the process of drafting the normative act.

The situation is all the more serious as the initiator of the normative act did not comply with the imperative provisions provided by art. 6 of Law no. 52/2003, taking into account that the intention of the Ministry of Justice to elaborate the normative act was not published on its own website. Thus, the citizens, the civil society could not consult 30 days before the draft normative act and, as such, the active participation of the citizens and the civil society in the decision-making process was prevented.

SoJust reminds that the Ministry of Justice is not at the first violation of this kind, applying the same lack of transparency regarding other normative acts essential for the smooth running of justice, such as, for example, the adoption of Emergency Ordinance no. 134/2005 on the National Anticorruption Department, lack of consultation of citizens and legally established associations that led, among other causes, to real difficulties in adoption in Parliament, which gave water to those parliamentary forces that opposed the strengthening of the fight against corruption .

2. According to Article 2 of the Treaty of Accession of Romania to the European Union, the acts adopted by the institutions of the European Union become binding for Romania.
From this perspective, we find that the Ministry of Justice and the Government of Romania by adopting the Emergency Ordinance no. 131/2006, especially by the provision from art. 16 para. 1 lit. c where access to computer systems is provided for when there are solid indications of crimes within the competence of solving DIICOT,

In other words, the provision from the Emergency Ordinance no. 131/2006 should be associated with the implementation in Romanian legislation of the two European directives, all the more so as Directive 2006/24 / EC provides for an obligation for all electronic communications operators to keep data on information traffic (except express of the content of the information) for a period of minimum 6 months and maximum 2 years.

3. The imprecision of the phrase access to information systems is neither proportional nor predictable, it violates the limits of the interference of public authority in the fundamental right to privacy, in that the phrase is a general one, involving access to electronic information but also access to data information traffic, data on users of this information traffic.

Access to data and information, even those related to the simple consultation of information traffic, may harm the privacy of third parties involved in computer communication, given that prosecutors may have access to their computer data.
On the other hand, the lack of a specific definition in the legislation of the term “access to information systems” can give rise to confusions at the level of actors in the field of justice, still completely unfamiliar with these new legal-technical concepts.

The procedure established by the Emergency Ordinance no. 131/2006, which does not stipulate the obligation of the prosecutor from the DIICOT structures for the access to computer systems to obtain an authorization of an independent and impartial court, a phrase provided by art. 6 of the European Convention of Fundamental Rights and Freedoms, gives the possibility to the representatives of the executive power (DIICOT prosecutors) to violate the fundamental right to a private life as it is defined by art. 8 of the European Convention on Human Rights.
SoJust considers that in order to strike a fair balance between public authorities ‘respect for citizens’ right to privacy and the interference of these public authorities necessary for national security, public safety, the country’s economic well-being, law enforcement and the prevention of criminal acts, health protection or morality, or the protection of the rights and freedoms of others, the normative act must establish the obligation for the prosecutor to obtain the judge’s authorization, including for access to computer systems, precisely because the only independent and impartial public authority is the court.

4. SoJust expresses its disappointment that the Ministry of Justice tends to explain the lack of predictability and proportionality with the right to privacy of art. 16 para. 1 lit. c of the Emergency Ordinance no. 131/2006 by a press release issued on January 18, 2007 ( which cannot have any legal force and, therefore, cannot be applicable in relation to the Emergency Ordinance no. 131/2006.

In fact, this communiqué is proof that the negative consequences of this provision were not quantified at the time of its elaboration and adoption.
We are convinced that if the Ministry of Justice had respected the principles of decisional transparency, such a situation would not have been reached.

5. On January 19, 2007, the Ministry of Justice issued an invitation to the representatives of the civil society on the topic of the Emergency Ordinance no. 131/2006 for the date of January 24, 2007, at 16.00.

SoJust points out that the discussion cannot concern only the questionable provisions of this ordinance, but also the provisions of the Emergency Ordinance no. 43/2002 regarding the National Anticorruption Department, which contains a similar provision (art. 16 letter c) text copied in its entirety by the Emergency Ordinance no. 131/2006 on the Directorate for the Investigation of Organized Crime Crime.

To the same extent, the discussions must also address the insufficiently clear provisions, with possible violations of human rights, provided in Law no. 161/2003, respectively to articles 34 and following.

6. SoJust addressed a memorandum to the People’s Advocate, requesting a direct referral to the Constitutional Court regarding the provisions that we consider unconstitutional and inconsistent with the European Convention on Human Rights.