1. The context
As a result, the Informatic System for Electronic Surveillance (“ISES”) will be initiated and run a pilot program between March 1, 2022, and December 31, 2025. The purpose of the pilot program is to organize and make ISES operational from a technical point of view, as well as ensure the training of relevant personnel and the proper funding for the project.
In order to facilitate the implementation of the new regulation, updates have been made to the Criminal Code and Criminal Procedure Code, as well as to the laws concerning the serving of criminal sentences, as well as Law no. 217/2003 for the prevention and control of domestic violence in order to reflect the possibility of using electronic monitoring devices.
The implementation of Law no. 146/2021 provides the use of mobile or fixed electronic monitoring equipment, meant to:
(ii) identify and prevent the approach of a protected person (the beneficiary of a protection order or a European protection order issued by the Romanian State) by a monitored person who must keep a certain distance from either the protected person and / or their home.
It is expressly stated within Law no. 146/2021 that the monitored person is prohibited from letting the device run out of battery, damaging it, or tampering with it in any way that would prohibit the proper functioning of the same.
As a result, no movement outside the designated areas is allowed without a prior approval from the monitoring authority (in this case, the relevant police officers). In case movement outside the set perimeter is deemed necessary, the authorities may establish a clear route meant to be followed by the monitored person.
Should the order of the court and / or the prosecutor not be followed, the electronic device will send an alert to the authorities as follows:
(ii) in case of proximity between the electronic device of the monitored person and the electronic device of the protected person which breaches the maximum distance set forth in the relevant protection order;
Such alerts will be automatically transmitted to the emergency dispatch center together with the tracking data available for the monitoring devices involved in the alert.
(i) proximity alerts which indicate the potential breach of a protection order will have priority over all others; in this case the monitored person must contact the relevant authorities by telephone and follow their instructions, present themselves at the nearest police station, and step away from the protected person; in addition, in case of a proximity alert, the authorities must urgently contact the protected person at once, inform them of the breach as well as regarding to the current whereabouts of the monitored person;
(iii) perimeter breach alerts; leaving house arrest will take precedent before overstepping the boundaries of a larger perimeter; in this case as well, the monitored person must contact the relevant authorities by telephone and follow their instructions, then present themselves at the nearest police station.
However, Law no. 146/2021 does not provide clear sanctions for such a breach. In this respect, Law no. 146/2021 brought clear amendments to the Criminal Code to incriminate the destruction of electronic monitoring device as well as not complying with house arrest or other mobility restrictive measures.
The authorities must also immediately contact the monitored person and instruct them how to proceed going forward.
In accordance with Law no. 146/2021, all personal data must be processed with full compliance with the provisions of Law no. 363/2018 regarding the protection of personal data by competent authorities with the purpose of preventing, discovering, investigating, prosecuting and fighting crime or enforcing punitive, educational and safety measures.
As such, the obtained data may only be used for the purpose for which it was collected, unless there are sufficient guarantees that the rights of the data subject are fully protected. Other authorities may use the information collected by the ISES in case of threat to national security, as defined by the specific legal provisions.
5. Impact
At this time, authorities conduct surprise visits and must rely on the good faith of the monitored person to abide by the provisions of the court as well as the instructions received from the police regarding the imposed restrictions. However, without a real-time means to verify the location of the individuals, breaches regarding movement interdictions often remained unnoticed and unpunished.
The implementation of electronic surveillance directly linked to the emergency dispatch system will serve to prevent such consequences and ensure that movement restrictive measures are fully respected.
Authors - MPR Partners - Gelu Maravela, Founding Partner & Ioana Ivașcu, Senior Associate