Technical supervision in light of the new solutions of the Constitutional Court – interpretation and application of decisions in the matter of the Constitutional Court

Abstract

The main problem to which the present article aims to find an answer is how to apply in the criminal trial the sanctions generated by the establishment of the technical supervision through "other specialized state bodies", respectively if the sanction of excluding telephone or environmental interceptions made with the help of an intelligence body is the only sanction applicable in this case.

By decision no. 51/2016, the Constitutional Court admitted an exception of unconstitutionality and found the unconstitutional character of the phrase "or through other specialized organs of the state", from the provisions of art. 142 para. (1) C.proc.pen., in the sense of its lack of foreseeability, considering that it refers only to the criminal investigation bodies and does not cover the specific technical activities.

Subsequently, by decision no. 302/2017, also in a concrete control of a posteriori character, by way of exception, the Constitutional Court found that the legislative solution contained in the provisions of art. 281 paragraph (1) lit. b) C.proc.pen., which does not regulate in the category of absolute nullities the violation of the provisions regarding the material competence and according to the person's quality in the investigative phase is unconstitutional.

Finally, specifying that it does not bring anything new to the other two previous solutions, by decision no. 26/2019, the Constitutional Court - this time resolving a legal conflict of a constitutional nature between the Public Ministry - the Prosecutor's Office next to the High Court of Cassation and Justice, the Parliament of Romania, the High Court of Cassation and Justice and the other courts - identified more deficiencies of constitutional character in the matter of special methods of technical supervision.

By applying these decisions of the Constitutional Court and verifying the procedural situation specific to each case, the court / prosecutor can reach a certain result, being able to assess the legal conditions regarding the sanction of absolute nullity or, on the contrary, to an inconclusive one, for various reasons, such as the major technical character of the specific activity or the need to maintain the confidentiality of some of the activities or the lack of transparency specific to the domain - a characteristic for ensuring the success of such operations. However, the sanction of absolute nullity can only be applied under the conditions strictly regulated by the procedural law, imposing as a first condition the finding of the violation of the legal provisions, in our case those regarding the material / functional competence.

The court / prosecutor may adopt other procedural remedies that satisfy the fairness requirements of the criminal trial, offered by criminal procedure and the conventional practice of respecting human rights. Besides the sanction of relative nullity, which would have the same effect as that of absolute nullity, but is too restrictive in proving procedural injury, the court / prosecutor could resort to another procedural remedy, specific to criminal probation - reducing or conditioning the probative value of the evidence in question.