Three MPs want SIE officers to be given “criminal investigative powers”. The bill, supported by PNL and PSD, is criticized by AUR, USR and UDMR / Explanations of an initiator

The Senate is going to vote next week, on Monday, on a bill that amends the law on the organization and operation of the Foreign Intelligence Service (SIE). Specifically, the project provides that SIE officers can be assigned to carry out criminal investigation duties “as special criminal investigation bodies, in the criminal files in which crimes committed by military personnel assigned to the Foreign Intelligence Service are investigated”.

The bill was initiated by three MPs: Felix Stroe (PSD), Virgin Alin Chirilă (PSD) and Alexandru Muraru (PNL). The initiative was tacitly adopted by the Chamber of Deputies. The legislative proposal is to be voted on in the Senate on Monday. It was on the agenda on Wednesday as well, but it did not reach the vote.

During Wednesday's debates in the Senate on the draft law, the AUR announced, through the voice of Senator Petrișor Peiu, that it would vote against the draft law. USR Senator Simona Spătaru announced that her party will abstain from voting on this project: “Do not rush to pass this law, because it does not respect many commitments made by Romania”, said Spătaru.

And UDMR announced, through the voice of Senator Turos Lorand, that it agrees with AUR and USR: “We would violate a principle that is a basic one of democracy. UDMR did not support this proposal neither in the committees nor in plenary we will not vote.” PSD announced that it supports the project.

What exactly does the project provide?

The draft stipulates that “officers from the Foreign Intelligence Service may be appointed, by order of the director of the Foreign Intelligence Service, with the prior approval of the Prosecutor General of the Public Prosecutor's Office attached to the High Court of Cassation and Justice, to perform (…), criminal investigation duties, as special criminal investigation bodies, in the criminal files in which crimes committed by military personnel assigned to the Intelligence Service are investigated External”.

SRI officers can receive this notice only if: they are licensed in law, have no disciplinary sanctions and have not been sent to court.

The approval can be withdrawn if they do not fulfill their duties, if the officer is sent to court or if he is disciplined, according to the draft.

Initiator of the law: “In no way does it extend the powers of SIE”

PNL deputy Alexandru Muraru, who is also the president of the special parliamentary commission for the control of SIE activity, explained to HotNews that the legislative initiative was submitted after several discussions he had even with SIE representatives.

“In no way does it extend the competences, first of all, of the SIE. And this change came after the takeover, by me and the SIE Commission, in February last year, when the civil and operative management of the Service, with whom we met and the other members of the Commission, came up with this problem, which was over 10 years old”, explained, in a dialogue with HotNews, Alexandru Muraru.

The SIE officers who will be appointed “cannot make criminal prosecution documents on their own. They will be under the authority of a prosecutor”, specified Muraru.

“I can't make arrests, I can't detain, I can't indict”

Muraru says that the situation persists since 2014, when an order of the general prosecutor was issued by which “a procedure was established that aimed at the technical procedure for the appointment and approval of officers who have the capacity of special criminal investigation bodies”.

“These people who are to be appointed based on those characteristics that we have introduced in the law, by the leadership of the Service, in agreement with the leadership of the Prosecutor's Office, can make criminal prosecution documents, prior to the criminal prosecution. They cannot make arrests, they cannot make detentions, they cannot make accusations, but they only make a criminal investigation to help, if you want, the prosecutor”, claims the PNL deputy.

The project is contested by civil society representatives

The Economic and Social Council (CES), made up of civil society representatives, is the only authority that approved the draft law unfavorably.

According to the document sent by CES, representatives of civil society criticize the project because “extending the powers of the Foreign Intelligence Service (SIE) to criminal investigation activities contravenes the constitutional architecture and the standards of a fair trial.”

Those from the CES say that the “hierarchical nature” and the “secrecy regime” specific to SIE “are incompatible with the procedural guarantees of the defendant's rights (adversariality, equality of arms, verifiability of evidence), and the usual mechanisms of judicial control become ineffective when the evidence is produced in the sphere of classified information”.

“In the absence of a strict demarcation between information gathering and criminal prosecution, there is a major risk of affecting the legality of evidence (chain of custody, exclusion of illicit evidence), with direct consequences on the validity of files,” according to CES.

The CES also draws attention to the fact that assigning criminal jurisdiction to an intelligence service creates a “dangerous precedent” that may later be extended and lead to abuses: “Military prosecutors were established to handle criminal cases under the specific regime of military and intelligence activities.”

Alexandru Muraru, about CES criticism: “Exaggerated”

Alexandru Muraru instead points out that even CSAT agreed with the project: “There was only one negative point of view, but it was, from our point of view, exaggerated and it did not refer to the proposal we are making. It came from the Economic and Social Council”, admitted Muraru.

“Even the Legislative Council agreed to this change. What's more, we appropriated the changes requested by the Legislative Council, because they were formal, they were matters related to legislative technique and they were not matters of substance,” explained Muraru.

He says that to his knowledge in the last 10 years there were only two cases of SIE employees on whom criminal investigation documents were drawn up.

“It does not target civilians, only SIE employees and only SIE military personnel. This must be said,” the PNL deputy insisted.

However, the CSAT states in its opinion that the ECtHR “held, in its jurisprudence, that “In a democratic society, the intelligence services should not have any competence in combating crime, unless criminal activities threaten national security”.

Currently there is a risk that the court will find a “procedural defect”

Alexandru Muraru explained that this legislative amendment is needed because currently, considering that the officers are only appointed based on an order given by the general prosecutor, and not based on a law, there is a risk that some files will be invalidated.

“There was a risk that in the case of an instrumented file, because this designation was not at the level of primary legislation, when this file, let's say, reached the court, the court would have found that there was a procedural flaw”, according to the president of the SIE parliamentary control committee.

“There is a distinction that must be made, important, also in this sense of not misunderstanding somehow that SIE is expanding its powers or that it is entering the area of ​​rights and freedoms, because the distinction is significant”, according to Alexandru Muraru.