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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.  Control over intelligence activities by government agencies is exerted legislatively by the Parliament and through the judicial review of warrants for data collection issued by prosecutorial offices.  The latter form of control, however, appears to be inefficient due to judicial weakness.

I.  Introduction

The Romanian intelligence community consists of the following 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 special units[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]

On February 16, 2016, the Constitutional Court of Romania issued an important decision that affected the structure and competences of intelligence agencies.[8]  Interpreting a provision of the Criminal Procedure Code on technical surveillance, the Court concluded that intelligence collected through wiretapping and other technical means is inadmissible as evidence if it was not obtained by the police or a criminal investigation body.[9]  This decision directly affected the SRI because it was not considered a criminal investigative body.  The director of the SRI even stated that the decision impacted national security and that the SRI’s technical surveillance department had become useless.[10]  The decision could impact thousands of ongoing corruption and organized crime investigations and cases already pending in court.[11]

Before the Court’s ruling, the SRI had conducted technical surveillance at the request of the prosecutor’s office and other agencies in cases involving not only national security but also corruption, tax evasion, and other crimes.[12]  The SRI was also the only agency with sufficient technical capacity to conduct such surveillance.  According to a European news source, “the system contains very few checks and balances.  Nobody really knows if the [SRI] is controlling in any way the flow of information, deciding what to give away and what to hold back.”[13]

Following the decision of the Constitutional Court, President Iohannis stated that an emergency ordinance would be adopted by the government as a temporary solution to the problem.[14]  The ordinance, adopted on March 11, 2016,[15] granted criminal investigative powers to the SRI in cases involving terrorism and crimes against national security.  Previously, the SRI could only notify the prosecutors of such crimes and assist with the investigation.

In addition, the emergency ordinance gave wiretapping powers to the National Anticorruption Directorate (Directia Nationala Anticoruptie, DNA) at the State Prosecutor’s Office within the High Court, and the Directorate for Investigating Organized Crime and Terrorism at the National Police (Directia de Investigare a Infractiunilor de Criminalitate Organizata si Terorism, DIICOT).  Before the Constitutional Court’s decision these bodies mostly used SRI personnel and equipment for technical surveillance.  Now they can still use the SRI’s equipment but not its personnel.[16]  Reportedly DNA’s technical center would increase its staff by 130 officers while the Prosecutor’s Office and the DIICOT would employ three hundred officers.[17]

Making the SRI a criminal investigation body was criticized by legal professionals and civil society, as it legalizes the involvement of a secret intelligence agency in the judicial process, undermining the SRI’s independence,[18] and “brings back terrifying memories of Ceausescu’s Securitate.”[19]

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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.[20]  These committees consist of nine members each, seven representing the lower chamber of the Parliament and two representing the Senate.[21]

Each party represented in Parliament has members on these committees.[22]  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.[23]

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.[24]  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.[25]  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.[26]  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.[27]  For example, in May 2016 the committee controlling the activities of the SRI initiated an inquiry into the investigation of a local pharmaceutical company, Hexi Pharma, which sold diluted disinfectants to local hospitals.  The committee will try to determine if the SRI was involved in the criminal investigation against Hexi Pharma and if the case was classified as a national security case.[28]

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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.[29]  The National Security Law authorized the SRI and SIE to undertake intelligence surveillance and established preemptive control by judicial authorities.[30]  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:

  • Nature of the 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[31]

Warrants are valid for six months, although they can be extended an indefinite number of times for three-month periods when cause is shown.[32]  In 2005 warrant approval was reassigned from prosecutors to judges, although prosecutors are still permitted to approve short-term (twenty-four- to forty-eight-hour) warrants during weekends when judges are off duty.[33]

The weakness and vulnerability to political influence of the legal and justice system is still a significant obstacle to effective democratic oversight.[34]  Government 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.[35]  Of the warrants issued, only about 2% led to an indictment, while the intelligence services claimed the remaining 98% were “used for prevention of a crime.”[36]

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.”[37]  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.”[38]

The emergency ordinance of March 11, 2016, granted criminal investigation powers to the SRI in certain cases involving national security and simultaneously introduced judicial control, which is to be carried out by the chairman of the High Court of Cassation and Justice or a judge appointed for this purpose in accordance with the rules on the operation of the Supreme Court.[39]

In 2014 the SRI proposed a new bill that would allow several agencies to gain access to data stored by Internet and phone service providers, without permission from a judge, only on the basis of a “motivated request.”[40]  The SRI claimed that the law was necessary because of the increasing number of cyber threats.[41]  The draft was based on the European Union’s (EU’s) then-upcoming Network and Information Security Directive, which requires Member States to appoint central authorities in charge of coordinating the response to cyber threats and incidents.[42]  However, the final version of the Bill as it was passed by the Romanian legislature in December 2014 ignored the EU recommendation that the authority responsible for cybersecurity be a civilian agency not linked to law enforcement or intelligence.[43]  The act was declared unconstitutional in its entirety by the Constitutional Court on January 21, 2015,[44] on various grounds, including those pertaining to the unjustified infringement of the right of individuals to privacy and personal data protection.

The new bill on Romania’s cybersecurity was made available for public debate in January 2016,[45] and President Iohannis expected that it would be adopted by the Parliament in June 2016, together with an improved counterterrorism law and a law on prepaid cards.[46]  The latter law was prepared at the initiative of the SRI, which complained that it could not keep track of the users of prepaid cards, which were allegedly used in preparing terrorist attacks in the EU.[47]

Regarding terrorism prevention, as of December 2015, the Bucharest Court of Appeal had ordered, on the SRI’s recommendation, the removal from the national territory of nine foreigners suspected of terrorist actions, while another 246 persons had been stopped at the border for the same reasons.[48]  According to the director of the agency, the SRI was also monitoring nine thousand other people who do not have access to the national territory.[49]

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Prepared by Nerses Isajanyan
Foreign Law Consultant
June 2016


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

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

[3] Law No. 1/1998 on the Organization and Functioning of the Foreign Intelligence Service, MO, Jan. 6, 1998, https://www.sie.ro/legislatie_Legea_nr.1-1998.html (in Romanian), archived at https://perma.cc/JWJ7-96QP.

[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, repealed by Law No. 415/2002 on the Organization and Functioning of the Supreme Council of National Defense, MO, July 10, 2002, https://www.sie.ro/legislatie_Legea_nr.415-2002.html (in Romanian), archived at https://perma.cc/GH7B-D2D4.

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

[8] Decision of the Constitutional Court No. 51 of Feb. 16, 2016, English translation available at https://www.ccr.ro/ files/products/Decizie_51_2016_ENG.pdf, archived at https://perma.cc/59W8-ZG8S.

[9] Irina Popescu, Romanian Intelligence Service Wiretapping Is Unconstitutional, Court Rules, Romania-Insider.com (Feb. 18, 2016), http://www.romania-insider.com/romanian-intelligence-service-wiretapping-is-unconstitutional-court-rules, archived at https://perma.cc/9BRL-KA42.

[10] Romania’s Govt. Grants Investigation Powers to the Biggest Secret Service, Sets Rules for Wiretaps, Romania-Insider.com (Mar. 13, 2016), http://www.romania-insider.com/romanias-government-grants-more-powers-to-the-biggest-secret-service-sets-rules-for-wiretaps/166785, archived at https://perma.cc/V7ZX-NA8L.

[11] Wiretaps Deemed Unconstitutional in 11 Corruption Cases in Romania, Romania-Insider.com (Mar. 11, 2016), http://www.romania-insider.com/wiretaps-deemed-unconstitutional-in-11-corruption-cases-in-romania/166698, archived at https://perma.cc/PWV4-9C79.

[12] Romania’s Govt. Grants Investigation Powers to the Biggest Secret Service, supra note 10.

[13] Vlad Stoicescu, Understanding Romania’s Anitcorruption Hunt, Katoikos.eu (Apr. 8, 2015), http://www. katoikos.eu/opinion/understanding-romanias-anticorruption-hunt.html, archived at https://perma.cc/A732-BRUH.

[14] Daniela Budu, The Romanian Intelligence Service and Technical Surveillance, Radio Romania International (Mar. 14, 2016), http://www.rri.ro/en_gb/the_romanian_intelligence_service_and_technical_surveillance-2544757, archived at https://perma.cc/NS7M-DVDR.

[16] Romania’s Govt. Grants Investigation Powers to the Biggest Secret Service, supra note 10.

[17] How Many Interception Centers Are in Romania? Who Are the Institutions Taping Our Calls, Antena3.ro (Mar. 15, 2016), http://www.antena3.ro/en/romania/how-many-interception-centers-are-in-romania-who-are-the-institutions-taping-our-calls-346350.html, archived at https://perma.cc/2U4X-4FVE.

[19] Bogdan Manolea, ApTI, Intelligence Organisations Get More Surveillance Powers in Romania, EDRi (Apr. 6, 2016), https://edri.org/intelligence-organisations-get-more-surveillance-powers-in-romania, archived at https://perma.cc/DVE9-SHHZ.

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

[21] Rule No. 44/1998 on the Setting Up, Organization and Functioning of the Special Parliamentary Commission for Overseeing the Foreign Intelligence Service, https://www.sie.ro/legislatie_Hotararea_nr.44-1998.html, archived at https://perma.cc/4VL7-3EAX

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

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 233.

[28] Parliamentary Committee to Check Romanian Secret Service in Disinfectants Case, Romania-Insider.com (May 24, 2016), http://www.romania-insider.com/parliamentary-committee-check-romanian-secret-service-disinfectants-case, archived at https://perma.cc/Z6DF-AUTW.

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

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

[31] Id. art. 13.

[32] Id.

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

[34] Id. at 64.

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

[36] Id.

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

[38] Id. art. 16.

[39] Mihaela Constantin, Wiretapping in Romania, Enforced Through Emergency Ordinance, GOVNET (Mar. 15, 2016), http://govnet.ro/Local/Politics/Wiretapping-Romania-enforced-through-emergency-ordinance-, archived at https://perma.cc/7UWN-VXVL.

[40] Irina Popescu, Romanian Constitutional Court: Cyber Security Law Is Unconstitutional, Romania-Insider.com (Jan. 22, 2015), http://www.romania-insider.com/romanian-constitutional-court-cyber-security-law-is-unconstitutional/140240/-, archived at https://perma.cc/7WE4-BQX4.

[41] Id.

[42] Lucian Constantin, Romanian Version of EU Cybersecurity Directive Allows Warrantless Access to Data, PCWorld (Dec. 24, 2014), http://www.pcworld.com/article/2863632/romanian-version-of-eu-cybersecurity-directive-allows-warrantless-access-to-data.html, archived at https://perma.cc/PMV8-CB5H.

[43] Id.

[44] Decision of the Constitutional Court No. 17 of Jan. 21, 2015, English translation available at https://www.ccr.ro/ files/products/Decizie_17_2015_EN_final.pdf, archived at https://perma.cc/3HWW-GLLB.

[45] Adina Panaitescu, Communications Minister Bostan: I Hope Cybersecurity Law Gets Final Approval from Justice Ministry, AGERPRES (May 25, 2016), http://www.agerpres.ro/english/2016/05/25/communications-minister-bostan -i-hope-cybersecurity-law-gets-final-approval-from-justice-ministry-13-02-26, archived at https://perma.cc/6J8D-RJEN.

[46] Irina Popescu, Romanian President: Three Laws on National Security to Be Sent to the Parliament by End-May, Romania-Insider.com (Apr. 13, 2016), http://www.romania-insider.com/romanian-president-three-laws-on-national-security-to-be-sent-to-the-parliament-by-end-may/168740, archived at https://perma.cc/Z5TN-GTAT.

[47] Irina Popescu, Minister: Romania’s IT Infrastructure Is Used for Spreading Computer Viruses Worldwide, Romania-Insider.com (Mar. 28, 2016), http://www.romania-insider.com/romanias-it-infrastucture-is-used-for-spreading-computer-viruses-worldwide/167664, archived at https://perma.cc/F4X8-M9S5.

[48] Nine Foreigners Suspected of Terrorist Actions Removed from Romania, Other 246 Stopped at Border, AGERPRES (Dec. 3, 2015), http://www.agerpres.ro/english/2015/12/03/nine-foreigners-suspected-of-terrorist-actions-removed-from-romania-other-246-stopped-at-border-11-10-18, archived at https://perma.cc/99ER-3ZPV.

[49] Catalina Mihai, Romanian President Lauds Intelligence Services, Says Country “Is Safe,” EurActiv (Mar. 30, 2016), http://www.euractiv.com/section/security/news/romanian-president-lauds-intelligence-services-says-country-is-safe, archived at https://perma.cc/3A6B-TCBN.