EIRP Proceedings, Vol 13 (2018)

Probative Value of Data Obtained Through Technical Surveillance

Andrei Bacauanu¹

Abstract: The present paper aims at analyzing the probative value of data obtained through technical surveillance, as the efficiency of the fight against corruption and organized crime calls for the use of modern investigative means and judicial bodies increasingly resort to the use of technical surveillance to obtain evidence in criminal proceedings. Statistical data from the courts attests to the large number of requests for authorization of interception of communications, a context in which we can state that this measure became a routine measure in criminal cases. Usage of intercepted communications as evidence obtained in other cases raises serious questions as to ensuring the proportionality of the interference with the right to privacy and with the pursued scope which must be legitimate, concrete, known, verified and analyzed by the judge at the time of authorization and not a future one, hypothetically, which may later arise in other causes. Another question marks the legal basis, in terms of quality and compatibility with the principle of the preeminence of law, the storage and archiving of communications for a long time, for use in other future causes. The academic and practical interest of the present study lies in the fact that it addresses both law theorists and practitioners in the field as it analyzes how judicial bodies can use data relevant to the criminal process, obtained through modern surveillance techniques.

Keywords: technical surveillance; interception; wiretap; probative value

1. Valuation of Legally Obtained Data Resulting from the Technical Surveillance as Evidence

Intercepted and recorded conversations or communications relating to the deed that is the object of the prosecution or which contribute to the identification or localization of persons, are transcribed by the prosecutor or the criminal investigation body in a minute mentioning the issued warrant, telephone numbers, identifying information of systems or access points, the names of the person who made the communications and the date and time of each call or communication. The minutes are authenticated by the prosecutor.

The minutes obtained under the Code of Criminal Procedure constitute written evidence on the facts and circumstances found during the use of technical surveillance measures. (Gradinaru, 2014)

A copy of the support containing the data from the technical surveillance shall be attached to the minutes in a sealed envelope with the seal of the criminal prosecution body. Given that the intercept operation is not susceptible to being fixed on a particular support, what is preserved is the recording.

Referred to the majority opinion, according to which the minutes of the recordings of communications and conversations are means of proof, an antinomic point of view was also stated. Thus, it is argued that drafting minutes and transcripts are only a guarantee and a certification that the records were done correctly, as well as a mean to facilitate their consultation, but they are not evidences in criminal cases.

As for the written content of the conversation, it must be done under certain conditions. Thus, “the reproduction is made in the literal form of the content of the conversation, keeping within the permissible limits the specificity of the speech of the persons involved, preserving the regionalisms, the slogan or the jargon terms, the pronouns of pronunciation”. One should not neglect the use of punctuation, phraseology in rendering expression nuances, or the tone of voice, which in certain situations, could lead to a different connotation of the conversation in relation to the meaning of the message transmitted by the interlocutors. It is also necessary to take into account the explanation of some words - regionalisms, acronyms, technical or argotic terms, which can lead to a subjective interpretation of the dialogue, as it happens in many cases in practice. (Girbulet & Gradinaru, 2012)

From this perspective, we believe that, in order to establish the truth and correct assessment of the evidence, it is very important that audio recordings contain the conversations entirely, not just fragmentarily, as is often the case in practice.

In fact, art. 143 par. 4 of the Criminal procedure code no longer unequivocally establishes the need for full transcription of recorded conversations and not just passages from them. The legislator renounces the attribute “integral” which gives rise to the ambiguity. Our claims are based on the provisions of Art. 142 para. 6 of the Criminal procedure code, which imply the existence of new evidence to show that no essential issues related to finding the truth have been selected and rendered so that the judge can request the sealed files from the prosecutor’s office.

The report is certified for authenticity by the prosecutor, thereby understanding the prosecutor who carries out or supervises the criminal prosecution, and the legislator renounces the prosecutor's individualization from this perspective in the context in which he expressly conditions the performance of these probationary procedures to start criminal prosecution. In the absence of certification of the minutes by the prosecutor, we find that the courts (Decision no. 275, 2010) have argued the removal of the recordings from evidence when they have appreciated the solution, given that the purpose of certification is to guarantee the reality and accuracy of the information contained in the minutes.

2. Probative Value in Terms Of Record Authenticity

In order for this investigation technique to become a verifiable evidence, the data resulting from the use of the technical surveillance measures should not be altered in any way and retain the original support on which they have been recorded to meet the requirements laid down in jurisprudence of the European Court of Justice. (Gradinaru, 2012)

Under the conditions of a society in which technology is advanced, the risk of altering this evidence is real, so the task of criminal investigating officers alone is to secure their content.

A possible expertise in voice and speech has as its object, according to the Forensic Dictionary, “the scientific research of a complex of individual general characteristics, relatively unchanging voice and speech for the authentication of the phonogram of gender, identity, disguise of voice and speech; imitation of voice”.

In order to meet this requirement, the original record must remain “unaltered” as a support and content.

The attempt of a person to reproduce in the process of speech the general and individual characteristics, relatively unchanging the voice of another person, by imitation or by technical means, can be demonstrated by forensic expertise, which is why the legislator admitted the verification of these means of proof. (Gradinaru, 2011)

With such a regulation, it is necessary to set up a “national interception structure” with possible territorial subdivisions to which criminal investigation bodies and prosecutors are detached, so that the legal requirements for carrying out such probative procedures are met.

It should also be noted that, in any case, the judicial authorities must pay particular attention to the risk of forgery of records, which is often done by taking over only parts of conversations or communications that have taken place in the past, and declaring them to be newly registered or removing parts of conversations or communications, or even transposing or removing images. (Gradinaru, 2012)

Thus, an audio recording is considered genuine if it was made simultaneously with the acoustic events contained therein and is not a copy, if it does not contain any interventions (erasures, insertions, interleaving, phrases or counterfeit elements) and if it was performed with the technical equipment submitted by the registrant.

Therefore, art. 172 et seq. of the Criminal procedure code, provide the possibility of technical expertise of the originality and continuity of the records, at the request of the prosecutor, of the parties or ex officio, in case there are doubts about the correctness of the recordings, in whole or in part, especially if they are not corroborated with all the administered evidences.

Therefore, we consider that audio or video recordings can be used as evidence in the criminal trial by themselves, unless challenged and confirmed by technical expertise, if there were doubts about their compliance with reality. If the expertise reveals the lack of authenticity of the records, they cannot be retained as means of proof in solving the criminal case, thereby removing any probative value of the interceptions and intercepted communications in the case by applying art. 102 par. 2 of the Criminal procedure code.

3. Usage as Evidence Exclusively of the Intercepted Communications that have been transcribed in a Certified Minute

The evidence has no established value in advance, the assessment of each evidence is carried out by the judicial bodies after examination of all the evidence administered and, on the other hand, the evidence obtained illegally cannot be used in the criminal proceedings. (Gradinaru, 2012)

Thus, recordings of communications or conversations can be used as means of evidence if from their content can be extracted facts or circumstances likely to contribute to finding the truth. They are not evidence by simply making them, but only if they are recorded in a procedural act, that is, the minute of transcription, and if there are facts or circumstances likely to contribute to finding the truth. (Gradinaru, 2016)

Therefore, the doctrine highlighted that audio-video recordings of conversations and communications are “subject to the principle of free choice of evidence. As a consequence, they have the same probative value as any other evidence, and may be retained by the judicial bodies in the determination of the factual situation of a criminal case but also they can be reasonably removed”. (Udroiu, 2014)

We appreciate, in terms of the probative value of the evidence provided by art. 143 par. 4 of the Criminal procedure code that in some situations, which are extremely rare in practice, intercepted and recorded conversations or communications can provide valuable information as direct evidence. This hypothesis intervenes only in the context in which their content reveals the constitutive elements of the offense that is the subject of the criminal case and the guilt of the defendant. However, in most cases, the conversations recorded and reproduced in full in the minutes provided by art. 143 paragraph 4 of the Criminal procedure code can only constitute indirect evidence, which must be corroborated with other direct or indirect evidence from the criminal case. (Girbulet & Gradinaru, 2012)

According to an opinion, "the certification operation is intended guarantee the reality and accuracy of the information it contains. The lack of such certification, considered possible more at a theoretical level and which can easily be covered, could be sanctioned by the relative nullity provided by art. 282 of the Criminal procedure code”.

It is appreciated in the literature (Gradinaru, 2012) that according to the provisions of art. 102 par. 2 of the Criminal procedure code, the legislator provided for a specific procedural penalty, which acts and has the effects of absolute nullity. “It is sufficient to prove that the evidence was obtained in violation of the provisions governing the way in which it was obtained in order to be of no probative value, with the consequence that it could not be used in the criminal proceedings without the need for proof of a prejudice”.

We consider that the lack of certification of the minutes of transcription of the intercepted conversations attracts their relative nullity, the harm being evident by not verifying them by the prosecutor, the only procedural remedy consisting in their removal from the material evidence.

4. Probative Value of Information Obtained from the use of Technical Surveillance Measures by the Romanian Intelligence Service

The Law on Romanian National Security provides in the provisions of Art. 21 that the data and information of national security interest resulting from the authorized activities, if it indicates the preparation or committing of an act provided by the criminal law, are transcribed in writing and transmitted to the criminal prosecution bodies, according to art. 61 of the Criminal procedure code.

In addition, Law no. 14/1992 on the organization and functioning of the Romanian Intelligence Service stipulates in art. 11 the fact that, if the specific activities result in data and information indicating the preparation or committing of an act provided by the criminal law, they are transmitted to the criminal prosecution bodies under the conditions provided by art. 61 of the Criminal procedure code.

Under such conditions, referring to the provisions of art. 61 of the Criminal procedure code we note that the acts issued by the operative agents with attributions on the line of national security are acts of discovery and if they fulfill the conditions of para. 1 of the same law may be the basis for the referral of the criminal investigation bodies. (Gradinaru, 2014)

The records drawn up by the intelligence service operatives in which the results of the technical surveillance are recorded bear the names of the discovery documents and they can constitute evidence only insofar as the facts are perceived personally by the official who draws up the document or in case of interception and registration communications, relevant information from a criminal point of view is not the result of immediate personal observation, but derives from conversations carried out by suspects or subjects of surveillance. (Gradinaru, 2013)

Therefore, we consider that the documents in which the results of the interception and recording of communications operations carried out pursuant to Law no. 51/1991 cannot be assimilated to the minutes of transcription or certification of registrations, within the meaning of Article 143 of the Criminal procedure code, these acts of inquiry by means of which the special investigative procedures are recorded have the legal nature of documents outside the criminal trial, drawn up by bodies other than the judiciary ones.

Under such circumstances, we believe that the information contained in the discovery documents cannot be used in the criminal case, but can only help to organize the framework needed to obtain the relevant evidence from another source (for example, pursuing the flagrant crime).

Problems highlighted in practice (Gradinaru, 2013) are related to how intelligence services and intelligence agents understand to select information items relevant to establishing the existence or non-existence of a crime and to clarify the circumstances of the case, from the communications of the persons monitored throughout the period of time specified in the warrant for the authorization of surveillance measures.

Sometimes in practice the informational process in the field of state security is confused with the evidence from the criminal procedural law, given that the documents, in which the results of the interception and recording of the conversations or communications of the person under the Law no. 51/1991, are transcribed are assimilated to the minutes of transcription and certification of registrations within the meaning of art. 143 of the Criminal procedure code. In fact, the certification of records becomes a formal activity by the prosecutor who keeps the full content of the “transcript note”, without being able to check the possible forms of handling the records received from the secret services.

All these aspects of the cases still pending in court in different procedural stages, attest to the fact that information resulting from national security investigation techniques is increasingly used in the probation of criminal cases - representing the basis of indictments - without proving the lawfulness of the way in which they were obtained, a circumstance which presupposes, first of all, the verification of the authorization act.

As regards the technical staff called upon to assist the wiretapping, the legal provisions prohibit them from assuming their powers as a criminal investigative body, the interception operation being exclusively within the competence of the prosecutor or the criminal investigation body, the specialized workers within the police or specialized authorities of the state, which were expressly delegated by the prosecutor.

Under such conditions, if the Romanian Intelligence Service performs interceptions, the information obtained with such warrants cannot be capitalized in criminal cases because they have not been previously obtained in a criminal case.

The absence of a criminal case presupposes that criminal investigation cannot be carried out, so the information thus obtained can only be at the base of the commencement of criminal prosecution. Thus, the prosecutor to whom this information is presented may use them to justify the provisional injunction on the basis of which he has intercepted and for requesting the judge's authorization for technical surveillance.

In this respect, we consider that it is necessary, by legal provisions, to expressly determine the possibility and the conditions for the subsequent use, in criminal cases of ordinary law, as means of proof, of transcripts of communications initially intercepted according with an authorization issued under special legislation related to national security. Such a regulation is necessary in view of: establishing adequate safeguards for the person who was affected by such an interference with his right to privacy, removing the possibility of different interpretations, as to the lawfulness of the use of such recording in other cases and clarifying how the court invested with a case in which such transcripts are used would have the possibility to verify whether or not the interception of communications was legally based on a national security clearance, art. 352 par. 11 of the Criminal procedure code not being clear about these issues.

5. Probative Value of Data Resulting from Technical Surveillance Measures Used in other Cases

From the point of view of the probative value of these means of proof, we need to analyze the provisions of art. 142 para. 5 of the Criminal procedure code, which stipulate that the data resulting from the technical surveillance measures may also be used in another criminal case if they contain conclusive and useful data or information regarding the preparation or perpetration of another offense mentioned in art. 139 par. 2 of the Criminal procedure code.

In doctrine (Gradinaru, 2015) it is noted that the text does not distinguish regarding the data obtained from the technical surveillance, “which leads to the conclusion that all, whether they regard the criminal trial in which they were disposed, or that they are collateral, as is the case with those who do not regard the crime subject of the prosecution or does not contribute to identifying or locating the participants, can be used as evidence in other cases as well”.

Also from the perspective of art. 142 para. 5 of the Criminal procedure code we consider that the situation of third parties communicating with the person whose conversations are intercepted and recorded and in respect of which there is the possibility of committing numerous abuses must be analyzed. We assume that these persons rights are flagrantly violated, in addition to the right to privacy, all the guarantees provided by the European Convention and the Constitution in the matter of the right to a fair trial, since in such situations there is no authorization for the interception of the person's communications. (Girbulet & Gradinaru, 2012)

Under such circumstances, we appreciate that these recordings cannot be used as evidence against third parties to which we have referred, only at most, as mere information for possible ex officio referral.

The use of data from technical surveillance as evidence in other cases raises serious questions as to “ensuring the proportionality of the interference with the right to privacy and with the aim pursued”, this goal being a legitimate, concrete, known, verified and analyzed by the judge at the time of issuing the warrant and not a future, hypothetically one, which may later arise in other cases. Another question marks the legal basis, in terms of quality and compatibility with the principle of the preeminence of law, the keeping and archiving of communications for a long time, for use in other future causes.

In this matter, the position of the European Court of Human Rights is in the sense that it is contrary to art. 8 of the Convention in the event that some of the applicant's conversations were intercepted and recorded, one of which led to the criminal proceedings against him, although the intercepted telephone line was that of a third person. (Kruslin v. France, 1990)

At the same time, the European Court of Human Rights found violation of art. 8 in Lambert v. France, concerning a judgment of the French Court of Cassation which refuses a person the right to criticize the telephone records to which he was subjected on the ground that they were made from a third party's telephone line. Thus, the Court has appreciated that the French courts have “depleted of the content of the protective mechanism” of the Convention, depriving the protection of the law of a large number of persons (Lambert v. France, 1998), namely those who communicate on other people's telephone line.

In the same sense, a part of the French doctrine states that, if the prosecution continues, the recorded conversations can serve as evidence for the facts that justified the technical surveillance measure, but they cannot be used to prove offenses that were not included in the judge’s authorization.

In this respect, we highlight the need to repeal the provisions of Art. 142 para. 5 of the Criminal procedure code, which allow implicit preservation, and archiving of the conversations and communications intercepted and registered in a case, as well as their use in another criminal case. First, we point out that this text is inconsistent with art. 142 para. 6 (which states that data that do not relate to the crime subject of the prosecution or do not contribute to the identification and localization of the participants are archived separately, being destroyed one year after the final settlement of the case) and art. 145 (which obliges the prosecutor to notify the supervised person of this circumstance, which means that in the case referred to in Article 142 paragraph 5, the notification will no longer take place, provided that the data will be used in another file, different from the one in which the not to indict solution was ordered). Secondly, we believe that the text is arbitrary and allows the use of any intercepted communications authorized in a case at any time, in other cases, where the legal requirements for obtaining the warrant may not be met. (Girbulet & Gradinaru, 2012)

We observe that the failure to comply with the provisions on the performance and recovery of data resulting from the surveillance measures is sanctioned by the legislator through the institution of the Preliminary Chamber, which by its rules eliminates the possibility of subsequent resumption of the file to the prosecuting court at the trial stage, the legality of the evidence at this stage and implicitly if the rules on the procedure for issuing the warrant and the authorization are respected.

Regarding this procedure, we support the view expressed in the literature that the verification of the lawfulness of the administration of evidence and of the prosecution, in the absence of the prosecutor, the defendant and the injured party may have negative consequences.

6. The Probative Value of Records Submitted by the Parties

It must be subject to analysis as to the value of the evidence and the state also the audio or video recordings submitted by the parties which, according to art. 139 par. 3 of the Criminal procedure code can be means of proof. It is important to note in this respect that these records are, in most cases, made prior to the commencement of criminal prosecution and even before any investigative act, and can serve as evidence when dealing with their own conversations or communications “which they have carried with third parties”.

The doctrine (Udroiu & Predescu, 2008) criticized the provisions of art. 139 paragraph 3 of the Criminal procedure code, according to which the parties or any other persons may make recordings of their communications or conversations with third parties without the authorization of the court, irrespective of the nature of the offense or the existence or non-existence of criminal proceedings, considering that “arbitrary interference with the right to private life is allowed, with the registered persons being deprived of the minimum protection required by the preeminence of the right in a democratic society”.

In this regard, when recording with devices (e.g. a tape recorder) used by the whistleblower or any other person in a conversation with the suspect or the defendant, it is appreciated in the literature that it does not meet the requirements of art. 139 par. 3 of the Criminal procedure code and cannot be means of proof because it is obtained in violation of the provisions of art. 26 par. 1 of the Constitution and art. 101 par. 3 of the Criminal procedure code given that it can be obtained by instigation.

It is considered that “the record provided by the denouncer to the criminal prosecution authorities, being obtained in secret, in violation of the values observed and defended by the Constitution and in order to obtain evidence against the defendant, following his determination to commit an offense, cannot be qualified as means of proof”, since the requirements of the art. 139 par. 3 of the Criminal procedure code are not met. (Gradinaru, 2017)

We can argue that this type of record cannot be used for the purposes of obtaining evidence also motivated by the fact that it was not carried out with the lawful prosecution initiated, that is, in the criminal proceedings, but on the contrary for the purpose of starting the criminal proceedings.

We agree with the view expressed in the scientific literature (Gradinaru, 2014), according to which it is useless to enumerate, in the art. 97 paragraph 2 lit. e) of the Criminal procedure code of both the written documents, as well as the expert reports and the minutes, motivated by the fact that they fall also into the category of documents. We also point out a lack of correlation with the provisions of art. 139 par. 3 of the Criminal procedure code, which provide that records made by parties or other persons, when dealing with their own conversations or communications they have with third parties, constitute evidence, with those of art. 97 paragraph 2 of the Criminal procedure code, which, as we have seen, no longer include the evidence among the means of proof. Our assertions arise where, whether performed by authorized parties or organs, audio or video recordings cannot differ in their legal nature, being provided as probative methods and as evidence.

In view of the fact that, in practice, telephone listings are used as proof of value, we emphasize the need for an explicit regulation of the conditions, the cases and the time limits in which they can be stored, by the mobile companies or by other authorized agencies, request and use of the list of telephone conversations carried out by a person, the telephone numbers between them, the hours at which they took place and the locations from and to which the telephone signal was issued. (Gradinaru, 2011)

These explicit regulations are imposed in the context in which the Constitutional Court admitted on 8.07.2014 the exception of the unconstitutionality of the provisions of Law no. 82/2012 regarding the retention of the data generated or processed by the providers of public electronic communications networks and of the providers of publicly available electronic communications services, as well as the modification and completion of the Law no. 506/2004 regarding the processing of personal data and the protection of privacy in the electronic communications sector.

For the same reason, we also consider that it is necessary to explicitly regulate the conditions in which criminal investigating authorities can “read” the data (the list of calls and messages made or received, or the pictures and audio-video recordings made by the mobile phone by the legitimate holder) from the mobile phones of a person, since in practice there are still many situations in which this is done without the judge’s authorization, considering, on the one hand, that the relevant provisions (Articles 54-57) of Law no. 161/2003 are not incidents since the phone cannot be considered as a “computer system or data storage device” and, on the other hand, that this “reading” activity does not involve access to an information system or its research.

Conclusions

Conducting technical surveillance can take place only under the conditions and as per limits established by law, otherwise these will be removed from the trial, the solution of returning the case to the prosecutor being unacceptable.

Intercepting and recording conversations or communications performed by phone or any other electronic means can be made only in case of crimes expressly provided by law or in case of serious crimes, and not for any crimes.

It is necessary that the court orders playing audio-video recordings or listen to the audio recordings, thus perceiving the evidences thoroughly and having a greater capability to find the truth than in the situation in which these evidences are perceived from the transcripts.

The institution for certifying the recordings was regulated for attesting the authenticity of the transcripts of the conversations or communications, to eliminate any possibility of alteration or counterfeiting. This regulation represents in fact an a posteriori guarantee in conducting the wiretap and their transcription in the context in which the expertise can be conducted by an independent and impartial authority.

Taking into account the aforementioned aspects, we notice that the legislator, at the moment of drafting the text of the law, wanted to regulate an additional condition for the administration of the relevant facts obtained by electronic surveillance, the purpose being to provide additional safeguards against arbitrariness by confirming the authenticity of the facts found by the prosecutor in his transcripts (reports).

More than that, in the absence of performing a selection of recordings used as evidence, of the transcription of this information in minutes (reports), and of validating these documents without attestation by the prosecution, the recordings, even if they were legally obtained, have no value in terms of probation.

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