Decision addresses access to a criminal defendant’s right to classified information

In a recent decision, the Constitutional Court ruled on a constitutional challenge to art. 352 par. (11) and (12) of the Criminal Procedure Code. These provisions govern situations where classified information is deemed indispensable for assuring a fair trial and therefore the court requires total declassification, partial declassification, or transition to another level of classification. Otherwise, the court may need to grant the defendant’s attorney access to the classified information.

If the authority that issued the classified document does not grant the attorney access to the classified information, the documents cannot be used to convict a defendant, to waive punishment, or to postpone punishment.

Given that this procedure involves the issue that currently some authorities have the power to reject the court’s request for classified documents, the Constitutional Court stated that the exercise of such authority could lead to a discretionary or subjective decision. Such a discretionary or subjective decision would violate fundamental national and European principles such as the right to a fair trial, equality before the court, and establishing the truth of the facts in controversy.

Moreover, the Court argued that it is not fair to grant access only to the defendant’s representative. The accuser’s representative should also receive access to the documents to assure a fair judgment of the case.

In conclusion, the Court ruled that only a judge could decide whether a piece of information is necessary in a case.  Consequently, only the judge should have the power to grant or reject access to classified information. The Court, therefore, granted the constitutional challenge, stating that the protection of classified information cannot take priority over the defendant’s right to information and the guarantees of the right to a fair trial for all parties in criminal proceedings.

The Constitutional Court’s decision no. 21/2018 on the constitutional challenge of art. 352 par. (11) and (12) within the Criminal Procedure Code was published in the Official Gazette no. 175, Part I, dated 23.02.2018.

Stratulat Albulescu - Attorneys at law