The claim of usage of covert surveillance for evidence gathering, a violation of the right to privacy

Facts

The author of the communication is a Romanian businessman. He acted as the Vice-Chair of the Board of Directors of a company between 2002 to 2006. The company signed a joint venture agreement with a university for the use of 225 hectares of land in Bucharest which was owned by the university. In 2000, the joint venture was incorporated. The company changed its name to SC Banaesa Investments SA. In 2005, another individual filed a complaint against the author and one another before the General prosecutor’s office of the High Court of Cassation and Justice. The office refused to prosecute this complaint due to a lack of substantive evidence and legal grounds. However, the National Anti-Corruption Directorate initiated a prosecution against the author and others for complicity in the abuse of power.

In 2012, the National Anti-Corruption Directorate indicted the author and 10 others alleging that he had served as an accomplice to the offences of abuse of power and active bribery. The author applied to the Court of Appeal requesting to rely on expert evidence relating to three issues including suspicions that covert surveillance evidence gathered by the Directorate against him had been tampered with. He argued that it was unconstitutional to rely on covert surveillance evidence secured with the assistance of the Romanian Intelligence Service based on a previous Constitutional Decision no. 51/2016 which dealt with the amendment of criminal procedure regarding use of surveillance methods. The Bucharest Court of Appeal convicted the author of complicity in the offences of abuse of power and active bribery, holding that he acted with intent and knowledge to acquire the land through illegitimate means causing a significant loss of potential monetary gain to the State and sentencing him to nine years of imprisonment. The author’s application and appeal to use expert evidence and witnesses were also dismissed and rejected by the High Court of Cassation and Justice; however, his sentence was reduced by it to seven years. In 2018, the author applied to the European Court of Human Rights arguing that his right to a fair trial and the principle of no punishment without law was violated. The author submitted the present communication to the Committee alleging a violation of article 17 due to the use of covert surveillance against him.

Admissibility

Despite the State party’s argument against admissibility, citing ongoing examination by the European Court of Human Rights, the Committee determines that the issues raised differ substantially from those being investigated. Additionally, it considered whether domestic remedies have been exhausted, concluding that they have been pursued adequately. Acknowledging the author’s status as a victim due to the direct impact of intercepted communications leading to imprisonment, the Committee proceeds to review the remaining admissibility issues. The Committee emphasised its role as a body which is not tasked with re-evaluating domestic legal proceedings or findings of fact unless there is clear evidence of arbitrariness, manifest error, or denial of justice. As a result, the Committee found that the author had not sufficiently substantiated the claim that the surveillance tactics employed violated his rights under article 17 of the Covenant. In conclusion, the Committee deemed the claims insufficiently substantiated for admissibility purposes and declared them inadmissible under article 2 of the Optional Protocol.