MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-26

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-26 Bucur and Toma v. Romania (Application No. 40238/02) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1175, H/Exec(2021)19, CM/Del/Dec(2016)1273/H46-21

 

Application	Case	Judgment of	Final on	Indicator for the classification
40238/02	BUCUR AND TOMA	08/01/2013	08/04/2013	Complex problem

Case description

This case concerns the disclosure by the first applicant – a military official in the Romanian Intelligence Service (“SRI”) – of information on wide-scale illegal telephone tapping on the part of the SRI and of the content of some of the communications thus intercepted, including telephone conversations between the other two applicants. These disclosures during a press conference in 1996 resulted in the first applicant’s conviction, in last instance by the Supreme Court of Justice in May 2002, to a suspended prison term.

The European Court found violations of Articles 8 and 13 because of the lack of safeguards in the legislation on secret surveillance measures based on national security considerations, in particular as regards the collecting and storing of personal data by the SRI, and the absence of domestic remedies allowing to challenge the retention of such data by the same. It also found violations of Articles 6 and 10 in relation to the criminal trial and conviction of the first applicant and a failure to comply with Article 38 due to the refusal of the authorities to provide the Court with the full criminal investigation file, without a satisfactory explanation.

Status of execution

The Committee of Ministers’ previous examination of the case took place in December 2016 (1273^rd meeting (DH)). The Committee then concluded that the authorities had adopted the individual measures required to make full restitution to the applicants and the general measures required to guarantee non-repetition of the violations of Articles 6 and 10 and full compliance with Romania’s obligations under Article 38 (for details, see CM/Notes/1273/H46-21 and CM/Del/Dec(2016)1273/H46-21).

The remaining questions therefore concern the general measures necessary to guarantee non-repetition of the violations of Article 8 and 13.

1) Situation at the Committee’s last examination (December 2016)

As then noted, the problem of lack of safeguards in the Romanian legislation concerning secret surveillance measures based on national security considerations arose first in the case of Rotaru,[1] and was then reiterated in other judgments of the European Court.[2]

Following the adoption by Romania of reforms addressing some of the deficiencies found, the Committee closed its supervision of most of these judgments,[3] while indicating that the measures required to remedy the remaining ones continued to be examined in the present case (see Final resolutions CM/ResDH(2014)253 in Rotaru and CM/ResDH(2016)134 in Dumitru Popescu (No. 2) group).

At its last examination, the Committee received information about new amendments to the relevant statutes (the National Security Act[4] and the Act governing the organisation and operation of the Romanian Intelligence Service[5]) enacted as part of a wider reform which entered into force in February 2014.

A detailed assessment of these amendments, in the light of the relevant Convention standards, was prepared by the Execution Department and presented to the Committee in document H/Exec(2016)6.

The Committee noted with interest these amendments, which had notably introduced the requirement for judicial authorisation for secret surveillance measures on national security grounds. It considered, however, that additional measures were required to ensure that the relevant legislation fully complies with the requirements of Articles 8 and 13 resulting from the Court’s relevant case law. It underlined in particular the crucial importance of independent and effective oversight of the activity of the intelligence services and invited the authorities to provide information on the measures envisaged to remedy the remaining deficiencies in the legal framework, as identified in document H/Exec(2016)6. It also encouraged them to provide clarifications on the other outstanding issues highlighted in this document.

2) Developments since the Committee’s last examination

The authorities’ last submissions, provided in December 2016 and November 2021, included clarifications in response to some of the questions raised in H/Exec(2016)6 about the existing legislation and safeguards (for details see DH-DD(2016)1420 and DH-DD(2021)1175). The authorities have not yet provided information on any new action taken or envisaged to correct the remaining deficiencies in the legal framework outlined in that document.

It moreover appears that in 2020, the Constitutional Court ruled out the possibility to use as evidence in criminal proceedings data collected through secret surveillance authorised under the National Security Act, due to the lack of provisions in this Act on a procedure to challenge the legality of material obtained through such surveillance.[6]

In consequence of this ruling, members of Parliament put forward a draft bill with amendments to the National Security Act to address the issue found by the Constitutional Court. These seek to introduce judicial review of the legality of secret surveillance measures authorised under this Act in those cases where the material obtained is intended to be used in criminal proceedings. The bill was approved by the Chamber of Deputies and has been pending for adoption by the Senate since November 2020.[7]

3) Rule 9.2 submission

The Committee received a submission from the Association for the Defence of Human Rights in Romania – Helsinki Committee (APADOR-CH) on 13 October 2021 (see DH-DD(2021)1105). The NGO highlights that Romania is about to reform its legislation on the protection of persons who report breaches of the law in the public interest.

It considers that the bill, presented for public consultation by the Ministry of Justice earlier this year, should explicitly exclude criminal liability in relation to possible offences committed by whistle-blowers when accessing and acquiring evidence to support a warning in the public interest.

Analysis by the Secretariat

As explained above, the problem of lack of safeguards for the respect of individuals’ private lives in the legislation governing secret surveillance based on national security considerations has been under the Committee of Ministers’ supervision for more than two decades. While the authorities enacted reforms, these have only partially rectified the deficiencies identified in the Court’s relevant judgments, including the present one.

Document H/Exec(2021)19 contains an analysis of the current legislative situation, in the light of the recent intervention of the Constitutional Court. This analysis shows that the relevant legislative framework still fails to provide the minimum safeguards that should be set out in law to avoid abuses of power. Thus, it does not (i) define the categories of persons who may be subject to targeted secret surveillance measures; (ii) include arrangements for an independent and effective supervision of the implementation of such measures, while in force; nor (ii) provide for effective remedies to individuals who consider themselves wronged by the same.

Questions also remain about the procedure to be followed for examining, using and storing the data obtained through such surveillance and the circumstances in which intercepted data may or must be erased or destroyed. The authorities’ latest submissions, from November 2021, include some additional elements on these points, which require more in-depth analysis.

When it comes to using material obtained through such surveillance as evidence in criminal proceedings, this possibility was excluded by the Constitutional Court because of the lack of sufficient safeguards, and Parliament seeks to reactivate it, by filling this gap. The relevant bill, as it now stands, does not include provisions on the access by the defence to the information gathered through secret surveillance and to its original carrier. It thus fails to address one of the issues found by the Court in relation to the previous legislative situation. More generally, the effectiveness of any review of the legality of such surveillance appears doubtful given the uncertainty over the provisions which apply to storing, accessing, examining, using, communicating, and destroying the material obtained through such surveillance.

In view of the long time that these issues have been pending, the Committee may wish to strongly urge the authorities to step up their efforts to adopt, without any further delay, the measures still required to bring the national legislation fully into line with the Convention requirements. To this end, it may wish to stress the utmost importance for the authorities to review the content of the above bill in the light of these requirements, should they choose to pursue its adoption. It could also strongly encourage them to make full use of the expertise available through the Council of Europe in this and their future reform efforts.

Given the need to balance the scale and the complexity of the remaining measures with the need to rapidly advance the execution process, it is suggested that the Committee resumes the examination of this case at the latest at its Human Rights meeting in December 2022.

The Rule 9.2 submission received in this case relates to issues the Committee has considered settled and does not call into question the effectiveness of the measures adopted to guarantee non-repetition of the Article 10 violation (in particular the guidance provided by the High Court of Cassation and Justice on the balancing of the competing interests in criminal proceedings triggered by the public disclosure of information evidencing misconduct in public office within the intelligence services).[8] The Romanian authorities are in any event bound to take full account of the relevant Convention principles, including those laid down in this judgment, in their reform efforts and it is hoped that they will also consider civil society’s views and input in this process.

Financing assured: YES