Dumitru Popescu v. Romania (no. 2)

Information Note on the Court’s case-law No. 96

April 2007

Dumitru Popescu v. Romania (no. 2) - 71525/01

Judgment 26.4.2007 [Section III]

Article 8

Article 8-1

Respect for private life

Monitoring of telephone communications by the authorities in the absence of a prosecutor’s warrant against a named suspect or a legislative framework affording adequate safeguards against arbitrariness: violation

Facts: The applicant was the majority shareholder in an aircraft charter company. He was arrested on suspicion of smuggling and criminal conspiracy and accused of being involved in trafficking cigarettes that had arrived illegally at a military airport. He was committed to stand trial in the regional military court. The public prosecutor submitted to the court transcripts and cassettes of the applicant’s telephone conversations that had been intercepted by the Romanian intelligence services. Relying in particular on the content of the transcripts and the list of telephone calls between the defendants, the regional military court found the applicant guilty of smuggling and criminal conspiracy and sentenced him to twelve years’ imprisonment. The conviction was upheld on appeal and the Supreme Court of Justice dismissed an application by the applicant to have the conviction quashed.

Law: Article 8 – Only a broad interpretation of the Law in question could allow it to be taken as a legal basis for the interference with the applicant’s rights. As far as the interception of the applicant’s telephone calls was concerned, it was not clear from the case file whether the prosecutor had given specific permission for the applicant’s telephone to be tapped. As to the safeguards provided by law to ensure the minimum degree of protection required by the rule of law in a democratic society, the Court noted a lack of independence on the part of the authorities empowered to authorise the interference. In cases where there was a threat to national security, the law allowed the intelligence services to intercept telephone conversations for a period of six months simply by obtaining authorisation from the prosecutor. The latter could extend the authorisation for consecutive three-month periods and the law did not lay down any overall time-limit. Hence, measures which seriously interfered with the right of individuals to respect for their private life had been left to the public prosecutor’s discretion. The Court had previously found that Romanian prosecutors, acting as members of the Procurator‑General’s Office, did not satisfy the requirement of independence from the executive. Furthermore, permission by the prosecutor to carry out telephone tapping was not subject to any prior scrutiny and could not be appealed against before an independent and impartial tribunal. The only remedy provided for by law against such decisions was an appeal to a higher-ranking prosecutor. Under the applicable national legislation, persons whose telephone calls were being intercepted were not informed of this fact at any time and the law made no provision for an appeal before the courts. Nor was there any ex post facto review of such measures by an independent and impartial authority. Neither the intelligence service nor the public prosecutor was obliged to include in the investigation file held by the court determining the criminal charges the documents on the basis of which they had respectively sought and given authorisation to intercept calls. These shortcomings in the law appeared to have resulted, in the instant case, in the courts responsible for determining the criminal charges against the applicant being wholly unable to verify whether the authorisation issued by the public prosecutor had been justified. They had therefore confined themselves to ascertaining that the tapping as such and the records and transcripts of the intercepted calls had satisfied the formal requirements laid down. The mere fact that the law permitted individuals to apply to the defence and public order committees of both houses of the national Parliament could not compensate for the absence of any prior or ex post facto review of telephone tapping by an independent and impartial judicial authority. Moreover, the law did not empower the parliamentary committees to impose any penalty or measure in the event of a breach of the law by the authorities which had intercepted calls or authorised their interception. The public prosecutor was not obliged to give details in the authorisation of the telephone numbers being tapped, nor were there any safeguards in place concerning the need to keep recordings intact and in their entirety or to destroy them. The public prosecutor had included in the case file extracts from the transcripts of the applicant’s calls that had been intercepted. While this might be understandable in certain circumstances, the person in question nevertheless had to be given an opportunity to listen to the recordings or challenge their authenticity; hence the need to keep them intact until the end of the criminal proceedings and to include in the investigation file those items of evidence which the person concerned considered relevant to his or her defence. Finally, the only national authority which could have certified that the recordings were genuine and reliable, by conducting a voice comparison, was the Romanian intelligence service, the very authority responsible for intercepting calls, recording them in writing and verifying their authenticity. Where there were doubts as to whether a recording was genuine or reliable, there should be a clear and effective means of submitting it for expert assessment by a public or private agency independent from the agency which had carried out the telephone tapping. The Code of Criminal Procedure (“the CCP”) now contained numerous safeguards concerning the interception and transcribing of telephone calls, the storage of relevant information and the destruction of information which was not relevant. However, these changes to the legislation had occurred quite some time after the facts complained of by the applicant. In addition, it appeared that the public prosecutor still had powers to order surveillance measures in the event of a presumed threat to national security.

Conclusion: violation (unanimously).

Article 6(1) – While it was true that the regional military court, sitting as a court of first instance, had declined to refer to the Constitutional Court the objection as to the allegedly unconstitutional nature of the relevant Article of the CCP, this omission had been rectified at the appeal stage. The Constitutional Court had ruled that the national legislation in question was compatible with Article 8 of the Convention and with the principles established by the Court’s case-law in the matter. The national courts could – of their own motion or at the request of the parties – rule out the application of provisions of domestic law which they considered to be incompatible with the Convention or the protocols thereto. In determining the criminal charges against the applicant, the domestic courts had admitted the recordings of the applicant’s phone calls as evidence against him, in accordance with the Article of the CCP governing the use of telephone recordings as evidence in criminal proceedings. In that connection the applicant and his lawyer could have consulted the public prosecutor’s notes containing the transcripts of the applicant’s conversations which had been included in the investigation file by the President of the regional military court. The applicant’s allegations before the national courts as to the unlawful nature of the telephone tapping related exclusively to a breach of the domestic legal provisions on account of the fact that the public prosecutor had not issued an authorisation relating to him personally and of the absence of a full transcript of the calls intercepted by the intelligence services. Under Romanian procedural law, items of evidence did not have a pre-determined value and were not “graded”; their probative value depended on the personal conviction of the judges with regard to all the evidence before them, with no particular item of evidence being presumed to carry greater weight than another. The recordings at issue had not constituted the sole evidence subjected to a fully independent assessment by the courts. The regional military court and the higher courts had compared the recordings with other pieces of evidence.

Conclusion: no violation (unanimously).

Article 41 – The finding of a violation of Article 8 constituted sufficient just satisfaction for the non-pecuniary damage sustained.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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