High Court of Review and Justice
PRESS RELEASE
In its session of 2 October 2023, the High Court of Review and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, lawfully established in the Case, considered two requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:
Decision 64 in Case 1796/1/2023
Sustains the request from the Court of Appeal of Bacău – Criminal, Juvenile and Family Chamber in case 3556/103/2022/a1, for a preliminary ruling for the clarification of the following points of law:
“Does the provision of the necessary infrastructure by the National Centre for Interception of Communications of the Romanian Intelligence Service, for the purpose of ensuring the technical conditions for the implementation of technical surveillance measures, constitute an activity of execution of the technical surveillance warrant, pursuant to Article 142 of the Code of Criminal Procedure?”, namely
“If in the procedure provided for in Article 148 para. (3) of the Code of Criminal Procedure and Article 150 para. (5) of the Code of Criminal Procedure, the referral to the judge of rights and freedoms for the issue of a technical surveillance warrant is mandatory if the prosecutor considers it necessary for the investigator to be able to use technical recording devices, these legal provisions establishing a special procedure derogating from the provisions of Article 139 of the Code of Criminal Procedure, since a technical surveillance warrant previously issued pursuant to the latter provisions exists in the case”, and determines the following:
- The provision of the necessary infrastructure by the National Centre for Interception of Communications of the Romanian Intelligence Service, for the purpose of ensuring the technical conditions for the implementation of the technical surveillance measures, does not constitute an activity of execution of the technical surveillance warrant, pursuant to Article 142 of the Code of Criminal Procedure.
- In the procedure provided for in Article 148 para. (3) of the Code of Criminal Procedure and Article 150 para. (5) of the Code of Criminal Procedure, the referral to the judge of rights and freedoms for the issuance of the technical surveillance warrant is mandatory if the prosecutor considers it necessary for the investigator to be able to use technical recording devices, even if there is a technical surveillance warrant of the same nature issued earlier, these legal provisions establishing a special procedure, derogating from the provisions of Article 139 of the Code of Criminal Procedure.
Mandatory as of the date of publication in the Official Journal of Romania, Part I under Art 477 para. (3) in the Criminal Procedure Code.
Returned in public session today, 2 October 2023.
Decision 65 in Case 1910/1/2023
Denies as inadmissible the request brought by the Court of Appeal of Constanta, Criminal Chamber for Juvenile and Family Cases, in case 8371/118/2021/a1*, for a preliminary ruling for the clarification of the following points of law:
“1. Application of the provisions of Article 324 para. (3) of the Code of Criminal Procedure – in cases in which the criminal prosecution is mandatory to be carried out by the public prosecutor – consisting in the delegation by the prosecutor carrying out the criminal prosecution of the performance of certain acts of prosecution to the investigative bodies of the judicial police, is it or is it not conditional on compliance with the provisions of Article 201 of the Code of Criminal Procedure, with reference to the provisions of Article 200 of the Code of Criminal Procedure?
- In application of Article 56 para. (3) of the Code of Criminal Procedure – with possible reference to Article 281 para. (1) point (b) of the Code of Criminal Procedure, in conjunction with Decision No 302/2017 of the Constitutional Court – is or is not the delegation of the performance of a criminal prosecution act by the prosecutor who is obliged to carry out the prosecution limited to the hypothesis that it is impossible for him to carry out the act or to a certain volume/proportion of the performance of prosecution acts by delegation?
- The provisions of Article 7 para. (1) and para. (6) of Emergency Ordinance No 78 of 16 November 2016 of the Government of Romania, approved by Law No 120/2018, shall remove the effects of the provisions of Article 56 para. (3) of the Code of Criminal Procedure – possibly correlated with those of Art. 201 of the Code of Criminal Procedure, with reference to the provisions of Art. 200 of the Code of Criminal Procedure – to the effect that acts of criminal prosecution carried out by judicial police officers and agents seconded to the Directorate for the Investigation of Organised Crime and Terrorism, by order of the prosecutor, are considered acts of criminal prosecution carried out directly by the prosecutor in the exercise of the power of mandatory prosecution, without any other condition than their performance by written order of the prosecutor?”
Mandatory as of the date of publication in the Official Journal of Romania, Part I under Art 477 para. (3) in the Criminal Procedure Code.
Returned in public session today, 2 October 2023.
After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.