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Summary

Intelligence gathering in Romania is divided among several government agencies as provided in national security legislation.  Constitutional principles guarantee the protection of privacy and personal data.  Surveillance and intelligence gathering is conducted in accordance with national criminal procedural legislation, and all agencies involved in intelligence collection are subject to the same procedures.  Control over intelligence activities by government agencies is conducted by the Parliament and through the judicial review of warrants for data collection issued by the prosecutorial offices; the latter form of control, however, appears to be inefficient because of weakness in the judiciary.

I.  Introduction

The Romanian intelligence community consists of six cabinet-level services and ministerial substructures charged with intelligence collection:

  • Domestic Intelligence Service (Serviciul Român de Informații, SRI)
  • Foreign Intelligence Service (Serviciul de Informații Externe, SIE)
  • Guard and Protection Service (Serviciul de Protecţie şi Pază, SPP, in charge of protecting Romanian and foreign VIPs)
  • Defense Ministry’s Directorate of Defense Intelligence
  • Interior Ministry’s General Directorate of Intelligence and Internal Protection (police)
  • Justice Ministry’s General Directorate for Protection and Anti-Corruption[1]

Each agency works in a specific field within the scope of its jurisdiction as assigned by the Law on National Security of Romania.[2] The SIE was created under a specific law that defined its duties and created a multilayered oversight structure aimed at immunizing the Service from political manipulations along party lines.[3] The Service operates independently of the government and is not subordinate to the incumbent executive.[4] The Law states that the means of intelligence gathering must not violate citizens’ basic rights and freedoms, private life, or honor and reputation, nor can it impose on them any illegal restraints.[5]

To ensure the unified coordination of all activities pertaining to defense and state security, including intelligence operations, the National Defense Supreme Council, an autonomous administrative body managed by the Office of the President of Romania, was created by law in 1990.[6] Additionally, the Council coordinates and monitors activities of the SRI, SEI, and SPP.[7]

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II.  Legislative Oversight

The SIE and the SRI are subject to parliamentary control through special parliamentary committees individually dedicated to each agency.[8] These committees consist of nine members each, seven representing the lower chamber of the Parliament and two representing the Senate.[9]  Each party represented in Parliament has members on these committees.[10] Both committees overseeing the SRI and SIE are empowered to verify constitutional and legal compliance of the Services’ activities and investigate allegations of illegal intelligence collection.[11]

The committees are allowed to request information possessed by the SRI and SIE.  Both Services are required to respond to such requests within a reasonable period of time, unless doing so jeopardizes ongoing operations, the identities of agents, or intelligence sources and methods.[12]  The committees are authorized to investigate the directors of the agencies and their staff members and have the right to conduct unannounced visits to the Services, which must grant the committees full access to personnel, data, and facilities.[13] Reportedly the committees have uncovered corruption and links to organized crime within the agencies, and violations of civil rights and liberties committed by intelligence services personnel.[14] On the basis of media accusations, parliamentary committees initiated a series of SRI and SIE investigations and inquiries, which resulted in the removal of personnel.[15]

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III.  Judicial Control over Surveillance Procedures

Judicial oversight is generally limited to the consideration and issuance of warrants for surveillance that restrict an individual’s civil rights and liberties.[16] The National Security Law authorized the SRI and SIE to undertake intelligence surveillance and established preemptive control by judicial authorities.[17]  Article 13 of the Law states that requests for warrants must be approved by the Prosecutor General’s office and must contain details regarding the following:

  • Motivating threat to national security
  • Specific activities for which the warrant is being issued (e.g., surveillance, wiretapping, search, seizure)
  • Names of persons whose communications are to be intercepted, or of those who hold the information, documents, or objects that must be obtained
  • Location where the warranted activities will be carried out, if and when it is possible to provide this information
  • Duration for which the requested warrant is valid (up to six months initially)
  • Office charged with the execution of the warrant[18]

Warrants are valid for six months, although they can be extended an indefinite number of times for three-month periods when cause is shown.[19] In 2005 warrant approval was reassigned from prosecutors to judges, although prosecutors were permitted to approve short-term (twenty-four- to forty-eight-hour) warrants during weekends when judges are off duty.[20]

The weakness and vulnerability to political influence of the legal and justice system is still a significant obstacle to effective democratic oversight.[21] Statistics revealed that 14,267 wiretapping warrants were requested between 1989 and 2002 by the intelligence agencies, and the Prosecutor General did not deny a single one.[22] Of the warrants issued, only about 2% led to an indictment, while the Services claimed the remaining 98% were “used for prevention of a crime.”[23]

The National Security Law states that “any citizen who considers himself injured in an unjustified manner through the activities that constitute the object of the warrant . . . may lodge a complaint with the public prosecutor specially appointed, hierarchically superior to the public prosecutor who has issued the warrant.”[24] The Law provides that citizens who believe that their rights or liberties have been violated by the government in the course of its information gathering have the right to “inform any of the standing comittees [sic] for the defence and ensuring of the public order, of the two chambers of the Parliament.”[25]

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Prepared by Nerses Isajanyan
Foreign Law Consultant
December 2014
 


[1] Hans Born & Marina Caparini, Democratic Control of Intelligence Services: Containing Rogue Elephants 48 (Ashgate Pub. Ltd. 2013).

[2] Law No. 51/1991 on National Security of Romania, Monitorul Official [MO] [Official Gazette], Aug. 7, 1991, available in English at https://www.sri.ro/fisiere/legislation/Law_national-security.pdf.

[3] Law No. 1/1998 on the Organization and Functioning of the Foreign Intelligence Service, MO, Jan. 6, 1998, http://www.sie.ro/En/Legi/1.pdf.

[4] Council of Europe, CIA Above the Law? Secret Detentions and Unlawful Inter-state Transfers of Detainees in Europe 201 (2008).

[5] Law No. 1/1998 on the Organization and Functioning of the Foreign Intelligence Service art. 10(3).

[6] Law No. 39/1990 on the Setting Up, Organization and Functioning of the Supreme Council of National Defense, MO, Dec. 13, 1990.

[7] Thomas Bruneau & Steven Boraz, Reforming Intelligence: Obstacles to Democratic Control and Effectiveness 255 (Univ. Texas Press 2009).

[8] Council of Europe, supra note 4, at 201.

[9] Rule No. 44/1998 on the Setting Up, Organization and Functioning of the Special Parliamentary Commission for Overseeing the Foreign Intelligence Service, http://sie.ro/En/Legi/44.pdf.

[10] Bruneau & Boraz, supra note 7, at 227.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id. at 233.

[16] Born & Caparini, supra note 1, at 59.

[17] Law No. 51/1991, arts. 8, 13.

[18] Id. art. 13.

[19] Id.

[20] Born & Caparini, supra note 1, at 59.

[21] Id. at 64.

[22] Bruneau & Boraz, supra note 7, at 228.

[23] Id.

[24] Law No. 51/1991, art. 13.

[25] Id. art. 16.

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Last Updated: 06/09/2015