On Appearance in the Criminal Legal Proceedings

Studiu publicat în volumul In Honorem Flavius Antoniu Baias. Aparența în drept, tomul II, Ed. Hamangiu, București, 2021, p. 703-723.

Due to its positive nature, the activity and judicial manifestations of the criminal law proceedings inextricably fall under the scope of contemporaneity. The procedural provisions may only regulate social relations, which then turn into legal relations, within the limitations of its regulatory existence. This existence is confined a quo and ad quem, to the times at which, from the functional perspective, the rule is active (and, sometimes also effective). However, the criminal procedural rules and the procedural forms they regulate do not exist simultaneously. Sometimes, this continuous manifestation implies the existence and the operation of some procedural rules that set out different rules for the same procedural form. Therefore, regulatory instruments must be in place a priori to avoid the potential conflict between lex posterior and lex previa because, otherwise, the use of only judicial instruments would mean that the arbitrariness of the proceedings is willfully accepted.

Insofar as the source of the conflict is regulatory in nature, the conflict must also be settled through regulatory means, that is, either by supra-regulatory rules (constitutional rules or general principle rules) or by specific, special, and temporary rules (transitional rules). In this context, the appearance addressed by this analysis is the one triggered by the conflictual paradox that comes along with the co-existence of a general rule (tempus regit actum) and a special, transitional rule in the matter of voidance, both of which are called to govern the singular shape which the extra-operation of the criminal law proceedings may adequately take. From regulatory perspective, the appearance results from the relation between the provisions of article 13 par. 1 of the Code of Civil Proceedings (which currently translates the most sanctioned principle of the proceedings – the principle of contemporaneity or immediate operation – into the basic rule of the implementation of the criminal proceedings) and those of article 4 par. 2 of the Law implementing^[1] the New Code of Criminal Proceedings – „The voidance of any act or operation performed before the effective date of the new law may only be claimed according to the terms and conditions of the Code of Criminal Proceedings”.

Traditionally^[2], as far as the Romanian procedural system is concerned, which originates in the Napoleonian system, the three fundamental principles of the criminal proceedings – which stem from the public order character and the specific interest of the criminal proceedings rules – were the passive personality principle (in Romanian principiul realitatii), the principle of legality (in Romanian principiul legalitatii) and the obligation to set in motion and exert the criminal prosecution (in Romanian, principiul obligativitatii). Some other fundamental, yet secondary, principles are deemed to stem from these primary principles. The contemporaneity of the procedural law was looked in as a derivation of the primary principle of the legality thereof.

In stating the limited efficiency of the criminal proceedings rule, the principle concludes that any procedural act may be performed only if it is consistent with the rules in force at the time it is performed. The timeframe elapsing between the date when a law comes into force and the date when its ceases to be in full force and effect represents the framework of its operation, meaning that the law shall be applicable only to the acts performed during this timeframe. Unlike the substantive law, the procedural or formal law does not apply to facts and persons, but to acts. Hence, the active character of the procedural law may not be examined by reference to the date when a crime was committed, as it is the case with the criminal law, but by reference to the date when the procedural activity takes place, in respect of which the procedural law operates. The consequences of this principle were summarized in the following rules laid down by the doctrine, yet unconditionally accepted by the practice:

– From the date it ceases to be in full force and effect, the procedural rule is no longer applicable to the procedural acts performed after that date even if they refer to a case file initiated according to that rule;

– The procedural rule that came into effect is not applicable to the acts and operations performed according to the provisions of the previous law;

– The new procedural rule is applicable to all procedural acts and operations performed after it becomes effective, irrespective whether the criminal trial was initiated according to the new rule or to the old rule.

The contemporaneity or the immediate operation of the criminal procedural law became a principle governing the application of criminal procedural rules and is summarized in the (quasi-general) provisions of article 13 par. 1 of the Code of Criminal Proceedings – the criminal procedural law is applicable in the criminal trial to acts performed and measures ordered, from the date it becomes effective until it ceases to be effective, except for the situations specifically provided in the transitional provisions. This principle echoes in other general provisions, such as those of article 3 of the Law 255/2013 implementing the New Code of Criminal Proceedings – the new law is applicable as of the date it becomes effective to all trials pending before the judiciary, except for the situations specifically laid down herein. Hence, whereas the principle sets out the rule, it also refers to the exceptions which are nothing else but the forms accepted by the law that the extra-operation of the procedural law may take (unlike the substantive law which is either material or fundamental, the procedural law may only but active). Since the procedural acts can only be current, it is only the rule in force (the current norm) that is capable to offer them regulatory legitimacy – this is actually the essence of the principle of contemporaneity.

Consequently, in the special context laid down by the transitional provisions, one must identify the forms of extra-operation of the criminal procedural law, i.e. the procedural manifestations of the exceptions from the tempus regit actum rule. By its very nature, extra-operation can only take two forms: ultra-activity or retroactivity. From these two, only the ultra-activity was accepted without reserves as a true exception from the principle of contemporaneity because it judicially manifests as a corollary of the primary mechanism of operation of the procedural acts the existence of which, as shown above, is never instantaneous. The criminal trial is nothing, actually, but a set of successive, progressive and coordinated procedural acts; hence, the procedural forms may manifest only in multiple temporal ranges – continuous or successive. Basically, any transitional situation was covered by provisions which would allow the ultra-activity or the rules that were no longer in force, in particular for those moments when a transfer is made from a trial stage or phase to the other.

Some provisions of the Law implementing the New Code of Criminal Proceedings – which, by its very nature is intended to regulate the transitional situations which the trials initiated under the former law were confronted with – are quite articulate. We refer here to the provisions of article 12 par. 1 of Law 255/2013, according to which „the final appeals pending before the courts on the date this law becomes effective, but initiated against judgments issued in appeals filed according to the former law, shall continue to be ruled by the same courts and according to the provisions of the former law regarding final appeals”. The same goes for the provisions of article 16 par. 1 of Law 255/2013, according to which „the preventive measures pending enforcement on the date this law becomes effective shall continue and shall be maintained during the period for which they were ordered, according to the provisions of the former law”.

There are some reserves, but only as regards the acceptance of retroactivity as a form of extra-operation of the criminal procedural law, taking into account the fundamental rule, specific to any modern system, regarding the manifestation of positive rules and which allows the application thereof only in the future, except for the more favorable criminal law. Therefore, the capital question to be answered when it comes to the extra-operation is whether the retroactivity of the criminal procedural law may be accepted as an element of the operating mechanism of the rule of law or it is an apparent manifestation of the extra-operation of the formal law?

This pseudo-form of retroactivity may appear when one attempts at applying in practice the provisions governing the special voidance and the voidance of acts performed according to the former law but the validity of which is examined by reference to the new law, respectively. In the current Romanian criminal procedural system, the special voidance is covered by article 4 par. 2 of Law 255/2013, which follows a pattern used in case of the transitional situations caused by the 1936 Code of Criminal Proceedings becoming effective and by the 1968 Code of Criminal Proceedings becoming effective.

For instance, according to article 666 of Book VII, titled Effectiveness of the Code of Criminal Proceedings and Transitional Provisions of the 1936 Code „The procedural provisions in this Code are also applicable to the criminal trials pending before the courts on the date it comes into force, and the acts and operations performed until that date, based on the previous law, remain valid”. According to article 2 of Law 31/1968 „An act performed during an investigation or a trial according to the prior law and continued according to the current law may only be declared void if so provided for herein”.

While adopting the same controversial model, the current provisions conclude that the procedural acts performed before the Code of Criminal Proceedings came into force, in compliance with the then applicable legal provisions, remain valid, with the exceptions laid down in this law. The voidance of any act or operation performed before the new law became effective may only be argued if the requirements of the New Code of Criminal Proceedings are met. Is there any conflict between the principle of non-retroactivity of non-criminal laws and the mechanism of this special voidance which triggers a retroactive manifestation of its effects, just like any other voidance?

As far as I am concerned^[3], I have unfailingly claimed that, by reference to the provisions of article 15 par. 2 of the Constitution, the retroactivity of the procedural law is unacceptable at all times and that not even the special provisions applicable to transitional situations may regulate such a form of extra-operation of the criminal procedural rules. In some cases – such as in case of article 4 par. 2 of Law 255/2013 – the law gives rise to a form of apparent retroactivity, as long as the moment when a rule is implemented or executed occurs after the law came into force.

First, the doctrine authors have criticized from the very beginning of last century, the idea that the procedural rules are excepted from the principle of non-retroactivity of the law because „a new criminal procedural rule replacing an old rule is not capable of changing a procedural act that had been already performed at the time the new rule became effective”^[4].

Even the authors that used the expression „retroactive effect” to refer to the time dimension of the application of the procedural law (of the formal law), meaning that the procedural law applies immediately, not only to future events but also to events occurring before it becomes effective, used to insist on the terminological risks as regards the correct nature of the consequences of such rules regarding the time-related application of the criminal procedural law. In this respect, it has been concluded^[5] that „when used in connection with the procedural rules, the expression «retroactive effect» is not scientifically correct because applying them to the pending matters at the time they become effective, does not mean that they have a retroactive effect, as long as they do not impact the earned rights, but they have an active, immediate impact on the conduct of the criminal trial before the court. We have used this expression as well, because it is used by the professionals to facilitate the comparison with the substantive laws”.

Later on, in the context of the transition to the 1968 Code of Criminal Proceedings and based on the special provisions of article 2 par. 2 of Law 31/1968, according to which the voidance of any act or operation performed based on the former law may be claimed only under the terms and conditions of the New Code of Criminal Proceedings, the doctrine writers used again the expression retroactivity^[6] to characterize this form of operation of the procedural law. Whereas similar provisions were included in the Law implementing the Code of Criminal Proceedings (2014) the current specialized publications^[7] characterize the mechanism laid down in article 4 par. 2 of Law 255/2013 – The voidance of any act or operation performed before the effective date of the new law may only be claimed according to the terms and conditions of the Code of Criminal Proceedings.

No matter how it is qualified, in my opinion, the retroactivity explained by reference to the time when the procedural rule becomes effective is merely apparent. The analysis of the provisions of article 2 par. 2 of Law 31/1968 (implementing the 1968 Code of Criminal Proceedings), the conclusions of which are applicable to these identically worded rules, is relevant in this respect. As a consequence of these provisions, it has been concluded^[8] that although the act performed based on the former law was void due to the failure to observe a provision of that law which was subject to the penalty of voidance, it becomes valid according to the new law if the new law no longer provides for the penalty of voidance in that situation. Therefore, the new law is applicable to an act performed under the former law but prevents the voidance thereof under the new law. Although it may appear that the new law is an ex post facto law – since it applies to an already performed act, which would be contrary to article 15 par. 2 of the Constitution that allows only the more favorable criminal law to act for the past, and thus prevents the applicability of voidance according to the new law and imposes a specific behavior for the court when ruling on such matters – it is actually immediately applicable.

Thus, it must be noted that in transitional situations, although the voidance as a remedy refers to an act performed according the former law, the new law shall not act for the past but it shall apply exclusively from the moment after its coming into force, either by precluding for that moment the legal consequences of a validly performed act or by reactivating for the future the legal consequences of an act which was invalid under the former law but became valid under the new law (which no longer provides for the former voidance event). In all cases the legal consequences of a valid act performed under the former law may no longer be removed for the period in which the former law was valid. As a rule, the effects of this act shall be valid throughout the validity of the new law if the trial is not over yet, according to article 3 of Law 255/2013, except for the special situation in which the act falls under the scope of voidance based on the new law, according to the special provisions of article 4 par. 2 of Law 255/2013.

For such a mechanism to be applied it is necessary to have a transitional situation (the trial commences under a law and continues under a different law). If the trial ended before the new law became effective, the acts performed under the former law shall remain valid even if they are subject to voidance causes laid down by the new law, because the procedural context in which voidance could be used no longer exists.

The rationale behind this mechanism lies in the nature of the procedural forms which are generally dynamic and not instantaneous. Thus, most of the procedural acts (documents, pieces of evidence etc.) exist at various moments in their judicial voyage and their procedural manifestation is confined by the time when they are performed, i.e. the time of the when the evidence is obtained, and the time when they are consumed, i.e. the time when their consequences occur.

For instance, an act may be validly performed according to the former law, but it may not produce valid consequences after the coming into force of the new law, if the latter provides for a cause of voidance that did not exist before (the voidance can no longer be claimed based on the new law), a piece of evidence validly obtained based on the former law may no longer be used after the coming into force of the new law if the new law determines that such piece of evidence may no longer be used in the trial (and if there is still a procedural context in which it can be examined) etc. Insofar as the piece of evidence may be voided or invalidated at present, as permitted by the new law and potentially in an adequate procedural context, no retroactivity of the procedural law can be argued even if it refers to procedural acts performed under the former law, because the application of the new law is made in its operation area. The mechanism which allows the retroactive application of the special voidance – in case of transitional situations – was rejected even before the principle of non-retroactivity of the law (except for the more favorable criminal law) was converted into a constitutional rule. The principle of non-retroactivity was recognized from the very beginning of the 20^th century as having a supra-regulatory value – „the principle is mandatory not only for interpreters of the law but also for authors of the law who must not abolish it by contrary provisions”^[9].

In this context apparently clear from the doctrinal perspective, the question that needs to be answered is: what is the reason for which in all transitional situations caused by the replacement of the Code of Criminal Proceedings the provisions regarding the voidance and its apparent retroactive application were constantly kept alive?

To answer, one must necessarily clarify first the notions at hand. In order to accurately identify the point in time where the apparent retroactive application of the criminal procedural rules becomes an issue, it must be underlined that applying the procedural law means implementing the provision it lays down. Hence, the moment when the rule is implemented is the benchmark in the temporal assessment of the operation of the law and it is not necessarily the moment when the procedural form laid down in the procedural rule appeared or the moment when its consequences manifested.

Furthermore, in consideration of the same etiological relation between the fundamental, primary and derived procedural rules, even under the influence of an inquisitorial-like system inherited due the quasi-global import of the criminal procedural principles of the French-Rhenish (the 1808 Napoleonian Code) in the Romanian law (1864), it has been considered that the first consequence of the principle of legality is the absolute and lawful voidance (ope legis) of all acts performed in breach of or contrary to the positive rules established by the criminal procedural law. However, no one should overlook the conceptual subtlety: the lawful voidance does not mean the procedural mechanism of application of voidance which would automatically apply whenever the actual manifestation of the author is in conflict with the ideal pattern. Our procedural system – both in terms of civil proceedings and in terms of criminal proceedings – has always been governed by the classic rule established by the French doctrine according to which voidance does not occur lawfully (in terms of declaration and submission) but only by means of a court action – nullités de plain droit n’ont pas lieu en France^[10]. The legal act is invalidated no matter the flaw within it only if the voidance is declared in a court of law, in the procedural context accepted by the law. Hence, the above mentioned rule translates as follows: any omission or violation of the procedural rules results in the voidance of the act, which no longer needs to be specifically inserted in the law as long as it is virtually covered by any criminal procedural law. The correlation between the abstract, ideally imagined form of a procedural act and its actual, manifest form, is an absolute requirement stemming from the requirements of the principle of legality according to which the act must be valid all along its existence.

None of the procedural forms, meaning procedural acts lato sensu, is instantaneous, but they are dynamic, insofar as their consequences appear in successive stages of the judicial proceedings and at different times in which they manifest judicially. The issue of their application in time and of the apparent conflict they cause appears when one and the same legal act must be consistent with ideal patterns that do not overlap, which were initially imagined in a specific form (the former law) and later on in a different form (the new, current law). Thus, according to article 2 of Law 31/1968, the voidance of any act or operation performed under the former law may be requested only according to the New Code of Civil Proceedings.  Consequently, although the act performed based on the former law was void due to the failure to observe a provision of that law which was subject to the penalty of voidance, it becomes valid according to the new law if the new law no longer provides for the penalty of voidance in that situation. Therefore, the new law is applicable to an act performed under the former law but prevents the voidance thereof under the new law.

To extrapolate the same mechanism for the application of the special voidance to other transitional, later situations, one might consider the following example: if a determination made by a tribunal before august 1997 in a panel comprised of one single judge instead of two judges was void because it breached a provision subject to the penalty of absolute voidance, such voidance could no longer be argued under the new law (Law 142/1997) according to which the matter is ruled upon by one single judge. Although it may appear that the new law is an ex post facto law – since it applies to an already performed act, which would be in conflict with article 15 par. 2 of the Constitution that allows only the more favorable criminal law to act for the past, and thus prevents the applicability of voidance according to the new law and imposes a specific behavior for the court when ruling on such matters – it is actually immediately applicable.

This mechanism that allows the application of the law in time was validated by the Constitutional Court according to which: „a law is not retroactive if it modifies for the future a lawful situation arising before that or when if it eliminates the future occurrence of the consequences of a legal situation that came into existence according to the former law because, in these cases, the new law would do nothing else but act for a period following its coming into force, that is, for its scope of application”^[11].

Other law systems are familiar as well with the tempus regit actum rule and the removal of the apparent exceptions based on the mechanism existing in the Romanian law. Thus, in the Italian system, the issue caused by the temporal succession of various procedural norms is very delicate because it is placed under the legality paradigm – the one established by constitutional rules and the one imposed by international regulation (article 6 of CEDO) and, therefore, it can only be approached by reference to standard theoretical schemes or to the general expectations of society^[12]. The author underlines that the most important manifestations of the inter-temporal rules are those that bring in regulatory changes operated during the same procedure in terms of the pieces of evidence, the treatment of the accused as regards the limitations to individual freedom and the competence of the judge. Beyond the actual procedural nuances, it is undisputable that the principle tempus regit actum generally assumes that the criminal procedural rule may not act for the past even if it is more favorable to the accused^[13].

In case of the Italian doctrine as well, the correct application of this condensed principle requires a thorough understanding of the notions at hand. In this respect, it has been pointed out that actus should be understood as any act of procedural nature or any procedural fact, irrespective of the effects they trigger, while tempus should be understood as the moment when the act is performed (achieved)^[14]. Hence, three scenarios were imagined as regards the application of the principle according to which the benchmark is the moment when the new law becomes effective:

(i) the acts whose effects are already exhausted at that time remain governed by the law under which they were performed;

(ii) the acts to be performed shall be governed by the new law;

(iii) the complex acts (the ones that involve a succession of procedural forms – emphasis added) which are not yet exhausted even if they are partially performed, shall be governed by the new law^[15].

Therefore, the application of the principle tempus regit actum relies first and foremost on the existence of proceedings pending before the court; in case of matters in which there is a final decision or an irrevocable resolution of the court, the procedural acts underlying them are no longer impacted by the new law^[16].

Having regard to these conceptual and functional clarifications, the analysis of the manner in which the application of the principle of contemporaneity in transitional situations may result in an apparent retroactivity in the Romanian procedural system requires two particular assumptions. On the one hand, there are the most important procedural acts lato sensu, which form the objective basis of any judicial determination – the pieces of evidence (i) and, on the other, the functional capacity of magistrates to make judicial determinations when they have to take into account two different laws (ii).

As regards the legal regime of the pieces of evidence in transitional situations where one procedural law is replaced with another, which sets forth different rules in terms of their efficiency, the difficulties, if any, in identifying the right solution rely on the complex nature of this type of procedural acts. Among the multitude of legal acts that form a criminal trial or a criminal cause the most complex procedural forms are those that refer to the pieces of evidence. The gathering of evidence is a judicial operation of the essence in finding the truth and clarifying the matter in all aspect; hence, the gathering of evidence is, in fact, a succession of progressive and coordinated procedural operations that are not naturally performed simultaneously. Thus, the identification of evidence is the primary operation which helps identify the potential sources of information (the sources of evidence) that shall then be used in the criminal trial by specific means. Once identified, the evidence must be produced through a set of legal mechanisms governed by the principle of liberty, specific to the probative means and the pieces evidence, called probative techniques. Whereas the Romanian law allows the interference of bodies other than the judiciary^[17] in the initial operation intended to identify the evidence (provided that they act in consideration of a judicial purpose), as regards the later operation, intended to give meaning to the probative activity, the current rule, as laid down in the already accepted case law of the Constitutional Court, is that this activity is strictly reserved to the judiciary. Consequently, in Romania, there operates a true judiciary monopole in terms of the administration of the probative, i.e., a set of procedural acts (orders) and procedural operations (activities) whereby the pieces of evidence turn into probative means that can be admitted in court and used in the matter. The legal instruments that qualify as intelligence^[18] – the probative means – on which the judicial orders may objectively rely, may only be obtained by the judicial bodies, only through judicial mechanisms laid down in predictable and accessible procedural rules and only in a judicial context, that is to say, after a criminal trial was commenced pursuant to the initiation of the criminal prosecution. The last operation in respect of the evidence is the examination thereof, i.e., an intellectual assessment and examination of the information offered by the evidence. Even if it naturally takes place inside the competent judicial bodies, this last operation is also governed by strict procedural rules, some of which have the force of a general principle.

In case of transitional situations, taking into account the inherent succession of these specific operations, a conflict may arise between the norms that set out distinct rules in terms of obtaining and using the evidence; hence, using the principle tempus regit actum to settle the conflict may general confusion as to the reference time in terms of its application. Basically, can a piece of evidence obtained according to the former law, be still used in the pending matters if the new law no longer recognizes its efficiency? What is the relevant moment to decide on the relevant rule governing it: the one when the evidence was obtained or the one when it was used?

To clarify this assumption, one may revert to the solution offered by the constitutional contentious court in the matter regarding the evidence obtained with the assistance of the officers of the Romanian Intelligence Service. After 2016, the constant case law of the Constitutional Court reconfigured the criteria based on which the administration and use of probative means obtained pursuant to the enforcement of a technical surveillance order may be approached in a criminal trial. Thus, by its Decision No 51/2016^[19], the Constitutional Court decided that the expression „or other specialized bodies of the state” included in article 142 par. 1 of the Code of Criminal Proceedings is non-constitutional. In substantiating its decision, the Constitutional Court upheld that the legislator’s option to have the technical surveillance warrant enforced by the prosecutor and by the criminal investigation bodies which are judicial bodies, according to article 30 of the Code of Criminal Proceedings, as well as by the specialized personnel of the police, insofar as they are authorized to act as officers of the judicial police, according to article 55 par. 5 of the Code of Criminal Proceedings, is fully justified. However, this option is no longer justified when it comes to the text of article 142 par. 1 of the Code of Criminal Proceedings which includes the expression „other specialized bodies of the state”, which are not clearly identified in the Code of Criminal Proceedings or elsewhere in the special laws. In the same decision, the Constitutional Court upheld that the specialized bodies of the state are not defined, whether expressly or indirectly, in the Code of Criminal Proceedings and that, according to articles 1 and 2 of Law 14/1992 and articles 6 and 8 of Law 51/1991, the Romanian Intelligence Services has powers solely in terms of national security and not in terms of criminal investigation (par. 37).

In addition to these arguments, it has been concluded that according to article 13 of Law 14/1992, in force at the time the technical surveillance warrants were enforced, „the bodies of the Romanian Intelligence Service are not entitled to perform criminal investigation acts, are not entitled to take apprehension or preventive arrest measures or to have their own premises for arrest”. In this respect, par. 47 of the Constitutional Court’s Decision reads as follows: „none of the Romanian regulations in force, except for article 142 par. 1 of the Code of Criminal Proceedings, includes any rule which would expressly allow bodies of the state, other than the criminal prosecution bodies, to perform wiretapping or to enforce a technical surveillance warrant, respectively. The Court considers that this matter may only be regulated by an instrument having the force of a law” and not by an infra-legal regulation, such as an administrative decision adopted by bodies other than the regulatory bodies, which may be highly unstable or inaccessible (see also the Decision No 17 of January 21^st, 2015, par. 67 and par. 94). „For all these reasons, the Court finds that the criticized provisions violate the constitutional provisions of article 1 par. 3 regarding the rule of law in terms of citizens’ rights warranty and article 1 par. 5 regarding the principle of legality”.

Consequently, the Constitutional Court has concluded, in its Decision quoted above as well as in its Decision No 302/2017^[20] (to be further discussed in the section dedicated to the procedural penalty applicable in case of breach of these legal provisions) that the legislative solutions governing the competence of other specialized bodies of the state to enforce technical surveillance warrants, and eliminating from the category of absolute voidance the breach of the relevant provisions governing the criminal prosecution body’s material and person-related jurisdiction, are in conflict with the provisions of article 1 par. 3 and par. 5 regarding the principle of legality and article 21 par. 3 of the Constitution regarding the right to a fair trial. The recent case law of the High Court of Cassation and Justice, and in particular Decision No 51/2016 of the Constitutional Court, has concluded that „The above-mentioned decision of the constitutional contentious court is applicable whenever the criminal prosecution activities are performed by bodies other than the prosecutor or the criminal investigation bodies of the judiciary police, irrespective whether the actual activities refer solely to the technical assistance or not. The enforcement of technical surveillance warrants must be performed solely by the prosecutor or by the criminal investigation bodies, the judiciary police”^[21].

Although the Public Prosecution Service claimed that the Romanian Intelligence Service’ cooperation and interference in the criminal prosecution activities consisted only in some technical support offered to the criminal prosecution bodies (which were provided with the technical means necessary to execute the technical surveillance warrants) and not in the procedural access to and use of the contents of wiretapping as evidence, the judiciary case law of the High Court of Cassation and Justice is unanimous in concluding that „the technical support offered for the wiretapping falls under the category of acts performed by other specialized bodies of the state and is subject to the decisions of the Constitutional Court and, therefore, is not accepted as evidence”; it further concludes that „the enforcement of technical surveillance warrants must be performed solely by the prosecutor or by the criminal investigation bodies of the judiciary police; hence, the legal provisions regarding the enforcement of warrants were breached because it was performed by a body without criminal investigation powers”^[22]. In addition, the High Court of Cassation and Justice finds that „Whereas the Romanian Intelligence Service’ assistance was limited to offering the technical support necessary to ensure the infrastructure required to implement the technical surveillance warrants, as the prosecution claims, such assistance is, in fact, a contribution to and an interference in gathering and administration of evidence and, therefore an interference in the criminal investigation activity”.

Moreover, as regards the technical surveillance warrants issued for national security reasons, taking into account that the criminal prosecution bodies made their accusations relying on evidence obtained pursuant to the enforcement of such warrants, even in criminal cases the subject of which exceeds the category of crimes that represent threats to the national security of Romania, as laid down in article 3 par. 1 of Law 51/1991, the Constitutional Court decided on the matter by issuing two non-constitutionality decisions.

Thus, for the purposes of a substantial analysis, when required to rule on the exception of non-constitutionality regarding the provisions of article 3, article 10, article 11 par. 1(d) and article 13 of Law 51/1991 on the national security of Romania, the Constitutional Court issued the Decision No 91/2018^[23] and clarified the issue of interpretation of the scope of application of Law 51/1991 in par. 81 which reads as follows: „For instance, the crimes committed, such as those against a person, may not be considered threats to the national security, even if they severely prejudice the fundamental right to life or the fundamental right to physical and psychical integrity of a person. Furthermore, the specific crimes committed, such as the crime of corruption or the crimes against the patrimony, may not be considered threats to the national security, even if they severely prejudice some fundamental rights and freedoms of the Romanian citizens. This is because although some crimes are likely to severely prejudice some fundamental rights and freedoms and punishing them is for the best interest of us all, they are not severe enough to qualify as threats to the national security. On the other hand, the crimes committed against a group of persons, such as the crime of genocide or crimes against humanity may turn into threats to the national security”.

When referring to the legal nature of wiretapping, the same decision of the Constitutional Court concludes that „the provisions of the law on national security does not lend the force of evidence/probative means to the data and information resulting from activities specific to the gathering of information which entails the limitation of some fundamental human rights or freedoms, authorized according to Law 51/1991. The provisions of article 139 par. 3 of the Code of Criminal Proceedings are the only ones that may allow the records resulting from activities specific to the gathering of information authorized according to Law 51/1991, to be used as probative means, whereas the provisions of article 11(d) of Law 51/1991 are not meant to do so” (par. 35 of the decision). In explaining its Decision No 91/2018, the Constitutional Court underlines that, although the provisions of article 13(f) of Law 51/1991 allows the bodies with powers in the area of national security to perform activities specific to the gathering of information according to the law, their scope of application is nevertheless narrow and they may not be used to elude the rules governing the issuance of technical surveillance warrants laid down in the Code of Criminal Proceedings (par. 84).

The judiciary practice agrees with this conclusion in appreciating that „As regards the national security warrants issued in the matter, the court of appeal finds that they do not qualify as probative means in the criminal trial because they were not issued according to a law in force. However, a tax evasion crime may stand for a ground for the issuance of a surveillance warrant according to the Code of Criminal Proceedings, which qualifies as a probative means in the criminal trial; nevertheless, insofar as the Romanian Intelligence Service was not a special criminal investigation body, the recording, if any, resulting from the activities specific to the gathering of information may not be used as probative means. The ability of the data and information resulting from activities specific to the gathering of information which trigger the limitation of some fundamental human rights and freedoms, authorized by Law 51/1991, to be used as probative means does not cover the warrants issued based on the interpretation of article 3 of Law 51/1991, according to which the tax evasion crimes are a threat to Romania’s national security, the prevention, discover or control of which would require the issuance of a national security warrant according to Law 51/1991. The Constitutional Court decided that the issuance of national security warrants is lawful only if it is made according to a restrictive application of article 3 of Law 51/1991 (…) the text of which did not, initially or as amended from time to time, explicitly included the tax evasion or the corruption among the grounds for such issuance”^[24].

The substantial examination performed by the Constitutional Court was backed by a procedural examination. Thus, in its Decision No 55 of February 4^th, 2020^[25], the Constitutional Court admitted the exception on non-constitutionality and concluded that „the provisions of article 139 par 3, final sentence of the Code of Criminal Proceedings are constitutional insofar as they do not refer to the records resulting from the activities specific to the gathering of information which require the limitation of some fundamental human rights and liberties, conducted in accordance with the law, authorized according to Law 51/1991”. Consequently, the final purpose of this decision was to render inefficient any information elements offered during the criminal investigations by the Romanian Intelligence Service, and thus prevent them from acquiring the only legal status that would have allowed them to be used in criminal proceedings, i.e. to be considered probative means. Therefore, pursuant to this decision, the wiretapping performed and recorded by the Romanian Intelligence Service based on the national security warrants may no longer be used as probative means in criminal trials.

As regards the probative means unlawfully used (resulting from the enforcement of technical surveillance warrants and national security warrants), the procedural penalty is the absolute voidance. In its Decision No 302/2017 admitting the exception on non-constitutionality of article 281 par. 1(c) of the Code of Criminal Proceedings, the Constitutional court upheld that „specialized structures require specialized competences, strictly determined by the law; hence, the performance or monitoring of a criminal investigation in matters that exceed such competence result in a distortion of the purpose of the law underlying the creation of these specialized structures” (par. 51).

The Constitutional Court further concludes that „the principle of legality mainly translates in that the judiciary is acting based on the competence offered to it by the author of the law and, secondly, in that the judiciary is bound to abide by the provisions of the substantive law and by the provisions of the applicable procedural law and of the rules on competence, included” (par. 55). In light of these considerations, the Constitutional Court concluded that, by eliminating from the category of absolute voidance the breach of the provisions governing the criminal prosecution body’s material and person-related jurisdiction, the author of the law failed to meet its obligation arising from the principle of legality, which conflicts with article 1 par. 3 and 5 and article 21 par. 3 of the Constitution (par. 63). An evidence is unlawfully obtained if the probative means and/or the probative technique used to obtain it is/are illegal, which means that the order, the authorization or the administration of that evidence is also illegal.

In this respect, the Constitutional Court explained in its Decision No 26/2019^[26], par. 208, that „the administration of evidence by bodies other than the judiciary breaches the material jurisdiction of the criminal prosecution bodies, which results in the application of the penalty laid down in article 281 par. 1(b) of the Code of Criminal Proceedings, that is, the absolute voidance of the acts whereby the evidence was produced”. In addition, the Constitutional Court explains in par. 159 of the same decision, that the powers of an intelligence service are confined, in terms of gathering of data necessary for the criminal prosecution bodies to initiate the criminal prosecution, to the facts that qualify under the law as „threats to the national security”.

The case law in judiciary matters is already consistent and correct in appreciating that „The penalty for this breach is the absolute voidance”^[27] and that „the enforcement of technical surveillance warrants by ‘other specialized bodies of the state’ which are not judiciary bodies, results not only in a breach of the material or functional jurisdiction of the criminal prosecution bodies but also in a breach of the general competence of the state bodies which is covered by article 281 par. 1(b) of the Code of Criminal Proceedings, in conjunction with the Constitutional Court Decision No 302/2017”.

In its Decision No 134 of April 15^th, 2019, the same Constitutional Court concludes that „as regards the surveillance warrants issued according to the Code of Criminal Proceedings, the bodies that are allowed to participate in the performance thereof are solely the criminal prosecution bodies, that is, the prosecutor or the criminal investigation bodies of the judiciary police (High Court of Cassation and Justice, criminal division, decision No 330/A of December 11^th, 2018, issued in the case file No 431/35/2015) and the acts of enforcement of the technical surveillance warrants are acts of criminal prosecution (High Court of Cassation and Justice, criminal division, resolution dated March 21^st, 2018). (…) Therefore, the legal provisions governing the enforcement of technical surveillance measures were breached because they were performed by a body unauthorized to perform criminal investigation activities, which is also a breach of the rules on jurisdiction. The breach of the rules regarding the competence to require and enforce technical surveillance warrants results in the absolute voidance, which may be claimed at any time during the criminal trial, even if the proceedings in preliminary chamber are already completed”. Consequently, the Constitutional Court considers that „pursuant to the probative technique being absolutely void, the probative means obtained by that probative technique shall also be declared void and, as a result, based on article 102 par. 2 of the Code of Civil proceedings, the probative means resulting from national security warrants and from the reports on the outcome of technical surveillance activities performed by the Romanian Intelligence Service shall be removed from the probative set of elements”.

When required to clarify the issue of dismissal of evidence as a penalty resulting from the absolute voidance, the Constitutional Court explains, in its Decision No 22/2018^[28], that the evidence must be physically eliminated from the probative materials as well as from the statement of claims filed with the court. In substantiating the above mentioned decision, the Court admits the exception on non-constitutionality regarding article 102 par. 3 of the Code of Criminal Proceedings and concludes that „the legal dismissal of the evidence obtained unlawfully in the criminal trial without physically removing the pieces of evidence from the criminal files pending before the courts of law is not sufficient to guarantee the innocent until guilty presumption of the accused and his/her right to a fair trial” (par. 24). The Constitutional Court outlines that „the physical elimination of the probative means from the criminal files pursuant to dismissal of the related pieces of evidence that were declared void, according to article 102 par. 3 of the Code of Criminal Proceedings, dismissal which lends a double meaning to the notion of ‘dismissal of evidence’ – a legal meaning and a physical meaning – is likely to efficiently secure the above mentioned fundamental rights and render the criticized text more clear, precise and predictable. Consequently, the Court infers that only these conditions allow the dismissal of evidence to reach its purpose, i.e., to protect the judge and the parties from following a legal reasoning and from making a decision directly or indirectly influenced by information or conclusions resulting from empirical examination or reexamination by the judge of some evidence that was declared void” (par. 27).

Despite the opinions claiming that the evidence obtained lawfully under the former law must be maintained and used in the pending cases even if the new law no longer considers them efficient, the unitary solution reached by the courts of law is that they must be eliminated through the voidance and dismissal mechanisms, as long as they no longer meet the validity conditions in force. However, to reach this solution, it was necessary to have an opinion from the High Court of Cassation and Justice which concluded that „the wiretapping performed with the assistance of the Romanian Intelligence Service according to the former Criminal Code and to the current Criminal Code, including before the publication of the Constitutional Court Decision No 51/2016, are absolutely void”^[29].

It should be noted that for the Italian system to reach a similar solution as regards the reference moment for the application of the tempus regit actum principle in case of evidence obtained under several, successive laws, it was necessary to have the input of a supreme court as well, to end the judiciary and theoretical controversies^[30]. According to this solution, the laws that establish additional warranties are directly applicable in all matters pending with the courts of law in respect of the efficiency or inefficiency of evidence because the tempus regit actum principle must be considered by reference to the time when the evidence is examined in order for the judge to issue its opinion, and not the time when the evidence is obtained.

Hence, as regards the issue of evidence obtained under several, successive laws, it is undisputable that the dismissal of evidence pursuant to the adoption, before the end of the trial, of a legal provision that did not exist at the time the evidence was obtained, is not a form of retroactive application of the procedural law which would conflict with the constitutional principle that sanctions the application of the law only for the future. The same solution is also valid if a change in the legal regime of the evidence occurs pursuant to a decision of the Constitutional Court. Whereas the exception on non-constitutionality is basically a prejudicial matter, that is, a legal issue the settlement of which must occur before the settlement of the litigation it is related to and a means of defense that does not impact the merits of the claim, it may not be simply an abstract instrument which assumes the application of non-constitutionality admitting decisions only in respect of the legal relations that will appear in the future and, therefore, in respect of the future hypothetical situations, otherwise, it would essentially lose its definite, tangible character; furthermore, in addition to its preventive purpose – because it mainly refers to the actual situation of a citizen whose rights were prejudiced by the criticized norm and only then to the positive law in its entirety – the non-constitutionality has obviously a punishing purpose as well. This is why, the future operation of the Constitutional Court’s decision refers first and foremost to the pending legal matters, therefore the ones that did not become facta praeterita on the ground that they were not challenged. At the same time, one must not ignore that the flaw of constitutionality existed in a latent form in the legal text that was penalized and that it became active (generating legal consequences) at the time the decision was published in the Official Journal.

Even if the elimination of the pieces of evidence compromised by the adoption of a new procedural rule (in any of its forms accepted by the Constitution) is achieved by voidance, based on a mechanism that essentially consists in the ex tunc elimination of the legal consequences of the penalized act, the retroactivity generated by these transitional situations is merely apparent. In fact, the time at which the new rule becomes effective, that is, the time when the provision of the new law is enforced is the current time, i.e., when the voidance is claimed and declared, and not the past time, i.e., when the evidence was obtained. It is therefore relevant to identify the time when the pieces of evidence are used since they determine the governing law in the final assessment of the probative means, even if at the time the evidence was produced the applicable rules were different. The changes occurred in the pending cases in terms of the legal regime of evidence obtained previously, in particular if they consist in additional warranties for the fairness of the proceedings, have the ability to impact the appropriateness (idoneous nature) of the pieces of evidence already obtained for the trial, and thus influence the magistrate’s determination (which must always occur at the end of the proceedings); hence, they must be considered even at such later moment.

A second case in which there may exist a different form of apparent retroactivity in the succession of procedural laws refers to the functional capacity of the magistrate (magister habilus), permitted by the old law yet disputed by the new law. For instance, the prosecutors working with the specialized prosecution offices were always forced to meet additional requirements in order to occupy these positions.

As regards the prosecutors working with the National Anticorruption Directorate, the initial rule laid down in article 87 par. 2 of Law 304/2004 on the administration of justice (the version in force until July 23^rd, 2018) established a material condition for them according to which „they must have at least 6 years’ experience as a prosecutor or a judge”. Later on, article 87 par. 2 of Law 304/2004 were amended by article I, par. 43 of Law 207/2018 (published in the Official Journal No 636 of July 20^th, 2018), which read as follows: „to occupy a position with the National Anticorruption Directorate the prosecutors must be free of any disciplinary penalty, must have a good professional training, a sound moral behavior, at least 8 years’ experience as a prosecutor or a judge and must have been declared admitted pursuant to an examination before the Prosecutors Directorate attached to the Superior Council of the Magistracy”. In addition, article V of the same Law 207/2018 included a transitional provision according to which „the prosecutors who, on the date of coming into force of this law, hold a position with the Directorate for Investigation of Organized Crimes and Terrorism and with the National Anticorruption Directorate, shall preserve their positions within these institutions”.

On November 16^th, 2018, the law was again amended. According to article II, par. 2 of Government emergency Ordinance 92/2018, „to qualify for a position with the National Anticorruption Directorate the prosecutors must be free of any disciplinary penalty, must have a good professional training, a sound moral behavior, at least 10 years’ experience as a prosecutor or a judge and must have been declared admitted pursuant to an examination before the committee created in this respect”. Consequently, the prosecutors who do not meet this material and binding condition regarding the experience as a prosecutor or a judge can no longer have the functional capacity that would allow them to validly occupy a position with the National Anticorruption Directorate. Furthermore, article VII of Government emergency Ordinance 92/2018 introduces a transitional provision intended to act for the future in respect of the prosecutors in office, which reads as follows: „the prosecutors who, on the date of coming into force of this law, hold a position with the Prosecution Office attached to the High Court of Cassation and Justice, the Directorate for Investigation of Organized Crimes and Terrorism and with the National Anticorruption Directorate, as well as with the other prosecution offices, shall remain in office therein only if they meet the conditions laid down in Law 303/2004 on the statute of judges and prosecutors, republished, as amended and supplemented from time to time, and Law 304/2004 on the administration of justice, republished, as amended and supplemented from time to time”.

These repeated changes in the law have raised the issue of functional capacity – in terms of the cases not settled yet – of the prosecutors operating within this specialized prosecution office and of their authority to validly rule, after the new seniority requirements would come into force, as long as they would no longer meet such requirements. Things were obviously unclear for the prosecutors who, at the time they were appointed or transferred, met the seniority conditions laid down by the then applicable law but who, at the time the new law was adopted, would no longer met the seniority requirements imposed by the lex posterior. The possibility to interpret the transitional provisions of the most recent rule as allowing the revocation of prosecutors in office within the specialized units because they no longer meet the conditions of the new rule (higher seniority) was seen as „a true retroactivity of the law”^[31], which conflicts with the provisions of article 15 par. 2 of the Constitution.

In fact, this retroactivity was only apparent as well, because the new procedural rule was applicable from the current date (after the new law came into force) and not from a past date, i.e., the date when the previous acts were performed. Consequently, the law may be considered retroactive only if it aims at overturning the procedural acts already completed, performed by the representatives of the Public Prosecution Service the functional capacity of whom (impacted by the additional requirement regarding the seniority) had been validly obtained according to the rules laid down in the lex praevia. However, to maintain a functional capacity lost pursuant to the legal regime under which it operates means to ultra-activate a rule which is no longer capable of regulation anything in the absence of the special legal provision that allows us to ignore the tempus regit actum principle. This is, actually, the meaning of the transitional provision included in article VII of Government emergency Ordinance 92/2018 which keeps the regulation within its scope of application because it does nothing else but changes for the future a legal situation validly arising under a procedural rule that is no longer active.

Consequently, the conduct of criminal proceedings in case of transitional situations may sometimes result in judicial pseudo-realities that may be mistaken for forms of appearance. In fact, the full and accurate application of the tempus regit actum principle is incompatible with the true manifestations of retroactivity which, in these cases, is merely apparent.

Footnotes

^[1] Law No 255/2013 for the implementation of Law No 135/2010 on the Code of Criminal Proceedings and for introducing new rules that contain criminal procedurals provisions, published in the Official Journal of Romania No 515 of August 15^th, 2013.

^[2] I. Tanoviceanu, Tratat de drept şi procedură penală, vol. IV, Curierul Judiciar publishing house, Bucharest, 1927, vol. IV, p. 26-41.

^[3] I have expressed this opinion ever since the New Code of Criminal Proceedings became effective; see A. Zarafiu, Procedură penală. Partea generală, partea specială, Bucharest, 2014, p. 30-31.

^[4] I. Tanoviceanu, Tratat de drept şi procedură penală, vol. IV, Curierul Judiciar publishing house, Bucharest, 1927, vol. IV, p. 36-37. The author underlines that the only moment which is of interest is the one „when a procedural act was performed, because the only criminal procedural rules applicable to it are the rules currently in force, as they are the only ones that meet the requirements of the passive personality principle”.

^[5] I. Ionescu-Dolj, Curs de procedură penală română, Socec SA publishing house, Bucharest, p. 23-24.

^[6] Doctrine professionals considered that retroactivity was necessary because some provisions of the new law were also applicable to the acts performed according to the former law – V. Dongoroz ş.a., Explicatii teoretice ale Codului de procedură penal român, vol. I, 2^nd edition, the publishing house of the Romanian Academy and All Beck publishing house, p. 14; with a focus on the content nuances of the retroactive effect in the matter of criminal procedural law, this expression was also used by I. Neagu, Tratat de procedură penală, Pro publishing house, Bucharest, 1997, p. 35-36; N. Volonciu, Tratat de procedură penală. Partea generală, 3^rd edition, revised and supplemented, 1997, vol. I, p. 68-69.

^[7] See A.Crişu, Drept procesual penal. Partea generală, Hamangiu publishing house, 2016, p. 54-55, where the author refers to the constitutional limit of this form of operation; M. Udroiu, in M. Udroiu (coord.) Codul de procedură penală. Comentariu pe articole, C.H. Beck publishing house, 2015, p. 115; C. Ghigheci, in N. Volonciu, A Uzlău (coord.), Noul cod de procedura penala comentat, Hamangiu publishing house, Bucharest, 2014, quoted, p. 50.

^[8] G.Gr. Theodoru, Tratat de drept procesual penal, 3rd edition, Hamangiu publishing house, Bucharest, 2013, p. 46-47.

^[9] I. Tanoviceanu, quoted work, vol. IV, p. 36.

^[10] J.B.J. Paillet, Dictionnaire Universel de Droit Français, vol. II, Tournachon-Molin publishing house, Paris, 1826, p. 76.

^[11] Decision No 375/2005 (Official Journal No 591 of July 8^th, 2005). The determination corresponds to the constant case law of the constitutional contentious court – Decision No 294/2004 (Official Journal No 887 of September 21^st, 2004), Decision No 330/2001 (Official Journal No 59 of January 28^th, 2002).

^[12] A. Gaito in Procedura penale, group of authors, 6^th edition, G. Giapichheli publishing house, 2018, p. 29-31.

^[13] Diritto processuale penale, 9^th edition, collana ideate, organizzata e diretta dal. prof. Federico del Giudice, Edizioni Giuridiche Simone, p. 12.

^[14] L. Della Ragione, Manuale di Diritto Processuale Penale, 5^th edition, NelDiritto Editore, Molfetta, 2019, p. 17.

^[15] Idem, p. 18.

^[16] See also M. Mercone, Diritto Processuale Penale, 11^th edition, Gruppo Editoriale Esselibri – Simone, Napoli, 2003, p. 14-15.

^[17] For instance, according to article 11 of Law 14/1992 on the organization and operation of the Romanian Intelligence Service, if the specific investigations and activities referred to in article 9 and article 10 reveal data and information which point to the fact that a crime is being prepared or was committed, the data and information are forwarded to the criminal prosecution bodies according to article 61 of the CPP. Furthermore, according to article 66 par. 3 of Law 304/2004 on the judicial organization, the departments and institutions specializing in the gathering, processing and archiving of information have the obligation to promptly provide the relevant prosecution office, at its headquarters, with all unprocessed data and information they hold in connection with the crimes committed.

^[18] The functional relation between the notions of evidence, probative means and probative techniques is covered by article 97 of the Code of Criminal Proceedings. Basically, a probative technique is a set of activities whereby the proof, i.e., the objective information about a state of facts, turns into probative means and thus becomes capable of being used by the judiciary. No matter how many objective elements they may contain, the proofs that were not produced remain unusable, that is to say, they do not qualify for use by the judiciary. For a thorough perusal of this concept, see also Gh. Mateuţ, Procedură penală. Partea generală, Universul Juridic publishing house, 2019, p. 443-485.

^[19] Official Journal, Part I, No 190 of March 14^th, 2016.

^[20] Official Journal, Part I, No 566 of July 17^th, 2017.

^[21] Resolution of March 9^th, 2021, issued by the High Court of Cassation and Justice – 2 judges panel in the case file No 4765/2/2019/al, not published.

^[22] Resolution of March 9^th, 2021, issued in the case file No 4765/2/2019/al; resolution No 11/C of January 1^st, 2017 issued in the case file No 276/1/2017; resolution No 638 of December 19^th, 2019 issued in the case file No 1262/33/2014, not published.

^[23] Official Journal, Part I, No 348 of April 20^th, 2018.

^[24] High Court of Cassation and Justice – Criminal Division, Decision No 134/A of April 15^th, 2019, issued in the case file No 4365/2/2014, not published.

^[25] Official Journal, Part I, No 517 of June 17^th, 2020.

^[26] Official Journal, Part I, No 193 of March 12^th, 2019.

^[27] High Court of Cassation and Justice – Criminal Division, Decision No 134/A of April 15^th, 2019, issued in the case file No 4365/2/2014; High Court of Cassation and Justice – 5 judges panel, Criminal Decision No 92 of May 30^th, 2019; High Court of Cassation and Justice – Criminal Division, 2 judges panel in preliminary chamber, resolution No 31/C of September 27^th, 2018; High Court of Cassation and Justice – Criminal Division, resolution dated march 21^st, 2018, not published.

^[28] Official Journal, Part I, No 177 of February 26^th, 2018.

^[29] This opinion was unanimously accepted and quoted in the Protocol signed at the end of the meeting of presidents of criminal divisions of the High Court of Cassation and Justice and of the courts of appeal held on May 16^th – 17^th, 2019, available on the website of the National Institute of Magistracy, the unitary practice section.

^[30] Corte de Cassazione, Le sezioni unite, D.25.02.1998 in A. Gaito, collective, quoted work, p. 30.

^[31] This opinion was expressed in the press release No 654/VIII/3 of August 6^th, 2018, issued by the Office for Press and Public Relations of the National Anticorruption Office and posted on the website thereof under the mass-media section.