MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1507/H46-24

19 September 2024

1507th meeting, 17-19 September 2024 (DH) Human rights   H46-24 Bucur and Toma v. Romania (Application No. 40238/02) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)254, H/Exec(2023)9, CM/Del/Dec(2023)1475/H46-27

 

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, of information on wide-scale illegal telephone tapping on the part of the intelligence service and of the content of some of the communications thus intercepted, including telephone conversations recorded at the home of 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 Romanian Intelligence Service, and the absence of domestic remedies allowing challenges to 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 authorities’ refusal to provide the Court with the full criminal investigation file, without a satisfactory explanation.

Status of execution

The remaining questions under the Committee of Ministers’ supervision concern the general measures necessary to guarantee non-repetition of the violations of Article 8 and 13.^[1]

The authorities submitted new information on 1 March 2024 (DH-DD(2024)254).

On 28 August 2024, well after the expiry of the deadline set by the Committee, the authorities provided information on a draft legislative proposal initiated by members of Parliament on 27 May 2024
(DH-DD(2024)974) aimed at reinforcing the safeguards surrounding the collection and retention of data within the framework of activities related to national security. Given the late submission of this information, it was not possible for the Secretariat to analyse it in these Notes.

1) Last examination of the Committee of Ministers (September 2023)

The Execution Department again submitted its analysis from the previous examination (December 2022) showing that the relevant framework still failed to provide the minimum safeguards that should be set out in law to avoid abuses of power. Thus, it did not (i) define the categories of persons who may be subject to targeted secret surveillance measures based on national security considerations; (ii) ensure that personal data collected through such surveillance is stored only if and as long as necessary, in a democratic society, to achieve the legitimate aim pursued and destroyed if this is not or no longer the case; (iii) introduce independent and effective supervision of the implementation of such measures; and (iv) provide for effective remedies to individuals who consider themselves wronged by the same (for details, see H/Exec(2023)9).

The Department also outlined concerns in relation to amendments to the Code of Criminal Procedure enacted by Parliament in July 2023[2] to reactivate the possibility to use material obtained through secret surveillance measures based on national security considerations as evidence in criminal proceedings (this possibility had been excluded under a 2020 ruling of the Constitutional Court, which had found it unattended by the required safeguards).^[3] While these amendments introduced an ex post facto judicial review of the legality of such measures in criminal proceedings,[4] they did not rectify the deficiencies in the national security legislation related to the categories of persons concerned, the retention periods for the intercepted data, the circumstances and the conditions for destroying it and the procedure to be followed (for details, see H/Exec(2023)9, Section VII).

Against the backdrop of the absence of renewed efforts from the authorities to bring the national security legislation fully in line with the Convention requirements set out in this and in the other relevant judgments of the European Court, the Committee deeply regretted the authorities’ decision to restore the possibility to use material obtained on the basis of this legislation as evidence in criminal proceedings. It moreover underlined that the outstanding issues relate to the very foundations of a democratic society governed by the rule of law. In these circumstances, it exhorted the authorities to implement, without any further delay, the required safeguards to protect individuals against abuses of power in pursuit of secret surveillance, as detailed in document H/Exec(2023)9.

At the same time, the Committee strongly encouraged again the authorities to make full use of the expertise available through the Council of Europe and to co-operate closely with the Secretariat with a view to ensuring that Convention-compliant solutions are developed and implemented. It urged them to submit information on the concrete steps taken to develop such solutions no later than 15 December 2023 and then to keep it duly informed.

The Committee instructed the Secretariat, in the absence of information attesting tangible progress, to prepare a draft interim resolution for consideration at the present meeting.

2) Developments since the Committee’s last examination

In their March 2024 submission, the authorities refer to the amendment of the list of threats in the national security legislation in order to extend it to: (i) cyberthreats or cyberattacks against computer and communications infrastructures of national interest; (ii) actions, inactions or situations with national, regional or global consequences that affect the State’s resilience to hybrid risks and threats; and (iii) actions carried out by a State or non-State entity conducting propaganda or disinformation campaigns in cyberspace, which are likely to undermine the constitutional order (see DH-DD(2024)254).[5]

They also convey the assessment of the Romanian Intelligence Service as regards the effects of the 2020 ruling of the Constitutional Court on the execution of this judgment. This assessment recalls that the ruling excluded the use as evidence in criminal proceedings of material obtained through secret surveillance measures based on national security considerations because of the lack of clear and foreseeable provisions regulating the procedure for a judicial review of the legality of such evidence. In response to this ruling, the Code of Criminal Procedure was amended in July 2023 so as to grant jurisdiction to the High Court of Cassation and Justice to review the legality of secret surveillance measures authorised under the national security legislation in those cases where the material obtained is intended to be used in criminal proceedings (for details, see DH-DD(2024)254).

Given the late submission of the information on the legislative proposal of 27 May 2024, it was not possible to summarise the relevant provisions in these Notes.

Analysis of the Secretariat

As already recalled by the Committee of Ministers, the problem of lack of safeguards for the respect of individuals’ private lives in the legislation governing secret surveillance based on national security considerations arose first in the case of Rotaru v. Romania more than two decades ago.^[6] However, although reiterated in other judgments of the Court, this problem remains unresolved.^[7] In their assessment of the impact of the Constitutional Court’s 2020 decision on the execution process, the authorities do not draw any conclusions as to the potential effects of that decision on the national security legislation. Instead, they provide information concerning the July 2023 amendments to the Code of Criminal Procedure, already assessed by the Committee at its last examination of the case. As summarised above, whilst those amendments do introduce some safeguards through allowing judicial review of secret surveillance measures based on national security considerations, where the material obtained is intended to be used as evidence in criminal proceedings, they do not address the other outstanding issues related to the collecting and storing of personal data by the Romanian Intelligence Service.

The Committee might therefore wish to recall that the authorities have made it possible again to use material obtained through secret surveillance based on national security considerations in criminal proceedings, albeit subject to judicial review,^[8] without limiting the relevant authorities’ powers to retain such material to what is necessary and proportionate, in a democratic society, to achieve the legitimate aim pursued (for more details on this issue, see H/Exec(2023)9, Section VII).

Concerning the adoption of the necessary measures to bring national security legislation fully and effectively in line with the relevant Convention requirements, it is positive that a draft legislation in this area was recently submitted to the Romanian Parliament.

However, given the late submission of the information on this draft legislation, which could be regretted, it was not possible to analyse it for this meeting. It is proposed to prepare a detailed analysis of the draft legislation for the Committee’s 1514^th meeting (December 2024) (DH).

In the meantime, the Committee could moreover strongly encourage the authorities to make full use of the expertise available through the Council of Europe and to co-operate closely with the Secretariat in the ongoing legislative process, including in order to identify good practices developed and implemented by other member states to ensure Convention-compliant secret surveillance systems, notably as regards review arrangements.

Finaly, in the light of the recent initiation of a legislative process aimed at bringing the national security legislation on collection and retention of personal data in line with the Convention requirements, it no longer appears necessary to prepare a draft interim resolution for adoption at the present meeting.

Financing assured: YES