Case Study on the Effects of Constitutional Court Decision No. 51/2016 on Pending Proceedings

Abstract

The present work represents a critical analysis of a recent solution pronounced in judicial practice regarding the legality of the administration of evidence by the Romanian Intelligence Service.
The recent judicial practice seems to establish the illegality of the administration of the evidence consisting in the technical supervision by other state bodies, the national courts pronouncing solutions to exclude the results of the technical supervision from the evidentiary material even in the situation where the procedure of the preliminary chamber was exceeded.
On the other hand, there is also a minority practice of national courts that appreciates that the evidence administered by workers of the Romanian Intelligence Service before the publication in the Official Gazette of the Constitutional Court Decision no. 51/2016 is not subject to absolute nullity and cannot be excluded from the evidence.
The minority practice of the courts is based on an interpretation of some paragraphs of the Decision of the Constitutional Court, according to which this decision would only apply in the future.
Although this minority practice seemed to have become obsolete with the publication in the Official Gazette of the Decision of the Constitutional Court no. 26/2019, we note that in 2023 some courts still embrace it.
We will demonstrate that this interpretation is not only wrong but also contradicted by the practice of the constitutional court.
From this perspective, the work has both academic and practical importance, since the work is addressed both to legal practitioners and litigants who were the subject of technical supervision activity.