Telephone interceptions and technical surveillance: when they are allowed and how they can be challenged

In Romania, interceptions and other forms of technical surveillance are regulated mainly by the Criminal Procedure Code (Law no. 135/2010), but also by legislation on national security such as Law no. 51/1991 on national security. In addition, the Constitutional Court of Romania (CCR) and the European Court of Human Rights (ECtHR) have delivered a series of important decisions that have changed how interceptions can be used in criminal proceedings.

This article aims to explain, in accessible language:

• what “technical surveillance” means and what types of measures it includes;
• under what conditions telephone interceptions and other technical surveillance measures can be ordered;
• who authorises the measures, for how long and how they can be extended;
• how they can be used as evidence in a criminal case;
• what you can do in practice if you suspect abuses or if the interceptions are unlawful.

1. What are telephone interceptions and technical surveillance?

The Criminal Procedure Code does not refer only to “telephone interceptions”, but to a set of measures grouped under the heading of technical surveillance. According to Article 138 of the Code, technical surveillance includes, among others:

• interception of communications or any type of distance communication;
• access to an IT system;
• audio, video or photographic surveillance in public or private spaces;
• location or tracking of a person or vehicle by technical means.

In everyday language, when people talk about “telephone interceptions” they usually refer to the interception of conversations carried out by phone, WhatsApp, other messaging apps or email, when these are accessed with the help of telecom operators or other service providers, on the basis of a technical surveillance warrant issued by the judge for rights and freedoms.

It is important to emphasise that technical surveillance is an intrusive measure which directly affects the right to private life and the secrecy of correspondence, rights protected both by the Romanian Constitution and by Article 8 of the European Convention on Human Rights. For this reason, the law sets strict conditions, and the ECtHR has developed clear criteria on the quality of the law and the safeguards against abuse.

2. Domestic legal framework: Criminal Procedure Code and decisions of the Constitutional Court

2.1. Criminal Procedure Code (Law no. 135/2010)

Technical surveillance measures are regulated mainly in Articles 138–146 of the Criminal Procedure Code. Some of the key provisions are:

• Article 138 CPC – lists the types of technical surveillance;
• Article 139 CPC – sets out the substantive conditions and the categories of offences for which the measures can be ordered;
• Article 140 CPC – regulates the procedure for authorisation by the judge for rights and freedoms;
• Article 141 CPC – deals with exceptional situations in which the prosecutor may order the measure provisionally;
• Article 142 CPC – deals with the execution of the warrant;
• Articles 143–144 CPC – regulate the execution and extension of the measure;
• Articles 145–145¹ CPC – concern informing the person under surveillance and specific remedies;
• Article 102 CPC – provides for the exclusion of evidence obtained unlawfully.

These provisions have undergone significant amendments, including as a result of decisions of the Constitutional Court, but the basic structure has remained the same: technical surveillance must be authorised by a judge, is limited in time, is allowed only in certain types of cases and can be challenged if it does not comply with the legal requirements.

2.2. A turning point: Constitutional Court Decision no. 51/2016

A crucial moment in the field of interceptions was Decision no. 51 of 16 February 2016 of the Constitutional Court, which declared unconstitutional the wording “or other specialised state bodies” in Article 142(1) CPC, as it was in force before being amended by Government Emergency Ordinance no. 6/2016. In essence, the Court held that it is unacceptable for interceptions to be carried out by “other bodies” which are not clearly defined in the law (in practice, the Romanian Intelligence Service – SRI), without clear safeguards and sufficient judicial control.

Following this decision, the legislator amended the Code so that, at present, the execution of technical surveillance warrants is carried out by:

• the prosecutor;
• criminal investigation bodies;
• specialised officers within the police, under the law.

Other important Constitutional Court decisions on technical surveillance include:

• Decision no. 244/2017 – concerning Article 140(7) CPC, regarding the reasoning of the judge’s decision authorising technical surveillance and the need for effective judicial control;
• Decision no. 26/2019 and others regarding Article 145 CPC – dealing with the obligation to inform the person under surveillance and the consequences of failing to do so;
• decisions on the quality of criminal procedural law and the requirements of Article 1(5) of the Constitution (clarity, foreseeability, accessibility).

These rulings pushed the criminal justice system to adjust, limiting the involvement of intelligence services in executing interceptions in ordinary criminal cases and strengthening the role of judicial authorities (prosecutor, judicial police, judge).

2.3. The ECtHR standard: Article 8 ECHR and cases against Romania

At European level, the ECtHR has repeatedly examined Romanian legislation and practice on interceptions and secret surveillance in cases such as Dumitru Popescu v. Romania (no. 2), Calmanovici v. Romania, Rotaru v. Romania, Bucur and Toma v. Romania and the judgments in Association “21 December 1989” and others.

The main issues identified by the Court included:

• the lack of clarity and foreseeability of the legislation on secret surveillance;
• insufficient safeguards against abuses (judicial control, time limits, informing the person concerned, erasure of data, etc.);
• the use of interceptions carried out under national security legislation (Law no. 51/1991) in ordinary criminal proceedings;
• ineffectiveness of certain domestic remedies available to persons concerned by the measures.

The ECtHR’s conclusion is that any interception regime must be “in accordance with the law”, must provide clear safeguards and must offer effective procedures through which the individual can challenge the measures or the use of the material obtained.

3. Conditions under which interceptions and technical surveillance can be ordered

3.1. Categories of offences for which technical surveillance is allowed

Technical surveillance is not available for any kind of offence. Under Article 139 CPC, such measures may be used mainly in relation to:

• serious offences (for example, corruption, organised crime, drug trafficking, terrorism, money laundering);
• offences for which the law provides for a certain minimum level of imprisonment;
• other offences expressly specified by law, where technical surveillance is necessary.

The precise list of categories of offences is laid down in Article 139 CPC and in relevant special legislation (for example, Law no. 78/2000 on preventing corruption, Law no. 143/2000 on combating drug trafficking). The key idea is that interceptions should not be used for trivial offences, but rather as a last resort for investigating serious crimes.

3.2. Reasonable suspicion and necessity of the measure

It is not enough that the alleged offence falls within one of the categories mentioned above. The prosecutor must show the judge for rights and freedoms that:

• there is a reasonable suspicion that an offence of the type provided by law has been committed;
• the measure is necessary for discovering the truth in the case;
• the measure is proportionate to the restriction of fundamental rights involved;
• the evidence cannot be obtained in any other way, or its obtaining would involve particular difficulties (the principle of subsidiarity).

These conditions flow both from the Criminal Procedure Code and from the requirements laid down by the Constitutional Court and the ECtHR with regard to restrictions of fundamental rights (Article 53 of the Constitution and Article 8 ECHR).

3.3. Who can be placed under surveillance?

The person targeted by technical surveillance may be:

• a suspect or defendant in a criminal case;
• a witness, where there are indications that he or she is participating in the commission of an offence or holds essential information;
• other persons who usually communicate with the suspect/defendant (for example, members of the criminal group).

In practice, interception is often linked not only to a single person, but also to specific communication channels or places. For example, a technical surveillance warrant may target a particular telephone number or email address, and all persons communicating through that channel will be indirectly affected.

4. Who authorises interceptions and for how long?

4.1. Role of the prosecutor and the judge for rights and freedoms

As a rule, it is the prosecutor who requests technical surveillance and the judge for rights and freedoms who authorises it. The prosecutor’s request must be reasoned and must describe the alleged offence, the legal classification, the persons concerned, the type of surveillance, the requested duration and the reasons why the measure is necessary.

The judge analyses the request in chambers, without summoning the parties, and decides by a reasoned ruling whether to grant or dismiss the request. As a rule, the authorisation ruling cannot be challenged immediately, but the lawfulness of the measures can be reviewed later in the preliminary chamber procedure or during the trial.

4.2. Initial duration and extensions

The initial duration of a technical surveillance warrant is a maximum of 30 days. Under Article 144 CPC, each extension cannot exceed 30 days, and the total duration of technical surveillance in respect of the same person and the same act in the same case cannot exceed 6 months. For video, audio or photographic surveillance in private spaces, there is an even shorter limit (for example, a maximum of 120 days).

Extensions are ordered by the judge for rights and freedoms, at the prosecutor’s reasoned request, and require a fresh assessment of the conditions laid down by Article 139 CPC – this is not a mere formality.

4.3. Emergency situations – provisional measures ordered by the prosecutor

Article 141 CPC allows the prosecutor, in urgent cases where delay in obtaining a warrant from the judge would seriously prejudice the investigation, to order provisionally technical surveillance for a very short period (for example, 48 hours). During this time, the prosecutor must refer the matter to the judge for rights and freedoms, who will decide whether or not to confirm the measure.

If the judge does not confirm the surveillance ordered by the prosecutor, the resulting interceptions cannot be used as evidence in the criminal proceedings.

5. How are interceptions carried out in practice and what happens to the recordings?

5.1. Execution of the warrant

Once the judge has issued the technical surveillance warrant, the prosecutor enforces it, either directly or through criminal investigation bodies or specialised officers within the police. Telecom operators or online service providers are obliged to cooperate, within the limits of the warrant, in order to allow the interception of communications or access to data.

Execution of the measure involves capturing and storing communications and other data. Persons involved in execution must comply strictly with the limits laid down in the warrant (persons, period, type of communications, locations, etc.) and have a legal duty of confidentiality.

5.2. Transcription and selection of recordings

The results of technical surveillance are recorded in official reports and can be transcribed in full or in part. The Criminal Procedure Code provides that the prosecutor must keep only those recordings which are relevant to the case, while the remainder must be destroyed, with a report being drawn up.

In practice, the way in which recordings are selected and how much material is kept on file can become an important point of challenge for the defence, especially in complex cases involving long-term interceptions.

5.3. Informing the person under surveillance

Article 145 CPC stipulates that, after the measure has ended, the person under surveillance must, in principle, be informed within a certain period of time (for example, within 10 days of termination), except where informing the person would jeopardise the investigation or other ongoing cases.

Notification is important not only as a guarantee of transparency, but also because, from that moment on, the person concerned can lodge specific complaints or take other steps to challenge the lawfulness of the surveillance measures or the use of the resulting evidence.

6. Using interceptions as evidence in criminal proceedings

6.1. Recordings as means of evidence

Under Article 139 CPC, recordings resulting from lawfully ordered and executed technical surveillance constitute means of evidence in criminal proceedings. The same article provides that recordings made by parties or other persons constitute means of evidence where they relate to their own conversations or communications with other persons. In other words, a recording made by you, with your phone, of a discussion in which you take part may, in certain circumstances, be used in a criminal case.

However, not all recordings are admissible. The lawfulness of the way they were obtained (who made them, in what context, whether there was authorisation, etc.) is examined in the preliminary chamber and, where appropriate, again at trial.

6.2. Exclusion of unlawfully obtained evidence

an appeal to CEDO, alleging a violation of Article 8 ECHR (private life and correspondence) and, where relevant, Article 6 ECHR (right to a fair trial), once domestic remedies have been exhausted. 

The ECtHR has condemned Romania in several cases where legislation and practice on interceptions failed to provide adequate safeguards. As a result, domestic law had to be amended, and ECtHR case-law remains an important tool when arguing actions or complaints.

8. Interceptions and the right to private life: what the ECtHR says

Article 8 ECHR protects everyone’s right to respect for their private and family life, home and correspondence. Interceptions and technical surveillance are clearly an interference with this right, and the ECtHR examines whether that interference is:

• “in accordance with the law” – there must be accessible, clear and foreseeable legislation;
• pursuing a legitimate aim (national security, prevention of crime, etc.);
• “necessary in a democratic society” – proportionate to the aim pursued and accompanied by adequate safeguards against abuse.

In cases such as Dumitru Popescu (no. 2), Calmanovici, Rotaru and Bucur and Toma, the Court criticised the previous Romanian system of interceptions (including under national security law) precisely because of insufficient safeguards, which led to legislative reforms and to CCR decisions.

For a person concerned by interceptions, these judgments mean that, if the surveillance measures were applied under legislation or practice later found incompatible with the Convention, there may be strong arguments for seeking redress or, in specific circumstances, for requesting a review of the criminal case.

9. Why the lawyer’s role is crucial in cases involving interceptions

Cases in which interceptions and other forms of technical surveillance play a central role are usually complex and require careful analysis of both the facts and the lawfulness of the evidence. The lawyer’s role is to verify, among others:

• whether the requirements of the Criminal Procedure Code were met (type of offence, reasonable suspicion, subsidiarity of the measure);
• whether the warrant was issued by the competent judge and is sufficiently reasoned;
• whether the maximum time limits and conditions for extension were observed;
• whether interceptions were executed by the bodies provided by law (and not by “other specialised state bodies” in breach of CCR Decision 51/2016);
• whether the person was informed at the appropriate time and had a genuine opportunity to challenge the measures;
• whether the transcripts and summaries of recordings were not selectively or tendentiously drafted.

In addition, the lawyer can build a defence strategy relying on Constitutional Court and ECtHR case-law, as well as on judgments of the High Court of Cassation and Justice or the Courts of Appeal, which clarify how the legal rules on technical surveillance should be interpreted and applied.

If you are involved in a criminal case where you are targeted by interceptions or other forms of technical surveillance, it is advisable to consult a lawyer who is experienced in criminal law and criminal procedure. On my website you can find other useful articles on criminal procedure, for example:

• Closing of the criminal investigation (clasarea urmaririi penale): what it means and what effects it has;
• Reopening the criminal investigation after closing the case: when a criminal file can be “reactivated”;
• Plea agreement (acordul de recunoastere a vinovatiei): when it helps and what risks it involves.

For a concrete and confidential discussion about your situation, you can use the contact details available on the page Contact – Măglaș Alexandru Law Office.