ROMANIA
THE PUBLIC PROSECUTOR
THE JUDGE ADVOCATE GENERAL’S OFFICE
AT THE MILITARY COURT OF APPEAL
No. 43/II/2/2014 2014-04-30
To Mr.
SAVA PAUL
-Iaşi, str. ---, no. ---, blk.
---, apt. ---, Iaşi county,
zip
code ---
Appended to this Letter, we send you
the copy of Ordinance no. 43/II/2/2014 from 2014-04-30 of the Judge Advocate
General at the Military Court of Appeal, by which your Complaint against
Ordinance no. 259/P/2013 of the Judge Advocate General at the Iaşi Military
Tribunal was admitted.
THE
JUDGE ADVOCATE GENERAL,
Brigade
general magistrate
NELU
CIOBANU
---PAGE
1---
ROMANIA
THE PUBLIC PROSECUTOR
THE JUDGE ADVOCATE GENERAL
AT THE MILITARY COURT OF APPEAL
No. 43/II/2/2014
ORDINANCE
2014-04-30
Judge Advocate General, brigade
general magistrate Ciobanu Nelu within the Judge Advocate General’s Office at
the Military Court of Appeal,
Considering the complaint submitted
by the said Sava Paul against Ordinance no. 259/P/2013 from 2014-03-14, the
documents and the proceedings of Case no. 259/P/2013 of the Judge Advocate
General at the Iaşi Military Tribunal,
FIND
The Ordinance no. 259/P/2013 from
2014-03-14 of the Judge Advocate General at the Iaşi Military Tribunal (leaves
48-50 of the Case) dismissed the allegations of committing the crimes of «abuse
while on duty against the interests of persons» provided in art. 246 from the
Penal Code of 1968 and «abusive behavior» provided in art. 250, par. 1, 3 from
the Penal Code of 1968, combined with the application of art. 33, let. a and
art. 5 from the current Penal Code.
The aggrieved party Sava Paul
submitted a Complaint against this Ordinance. The most relevant aspects are the
following:
a)
“the case
documents do not show that there has been «solid evidence» that I was
performing, having performed or preparing to perform «a deed which stands as
crime or criminal offence», the deed of identity control performed by the Riot
Police personnel being illegal, abusive, degrading, insulting, undemocratic and
unconstitutional, against the letter and the spirit of art. 27, let. b, Law no.
550/2004”.
---PAGE 2---
b)
“the Judge
Advocate General ignored the fact that the presence and the actions of the Riot
Police employees within the Ministry of Interior were contrary to Order no.
60/2010 of the Ministry of Interior concerning the organization and the
performance of activities of preserving public order and security”.
c) “The special area of public security established within the PUNGEŞTI
village, VASLUI county, should have been handled by the Romanian Police, that
is the Vaslui City Police, because maintaining public order is a duty to be
fulfilled by the Romanian Police, not the Riot Police. Therefore, the
performance of the duties of the three Riot Police employees did not observe
the legal framework, they have carried out illegal orders coming from their
superior officers and performed abusive identity control activities and
behaved abusively”.
d) “following the filming sequences sent by the Riot
Police, the statement related to the use of an insulting language is not being
challenged. I considered the use of «Come here, you crank» and «You might
receive a civil penalty at home!» to be insulting, degrading and threatening.
The criminal prosecutor found that these words do not show the guilt and intent
of insulting, degrading and threatening me, a finding which I strongly object
to”.
e) “according to
the statements given at the hearings, the three Riot Police employees were
ordered to “identify the individuals who provoked the damages” “pursuing” “the
identification of individuals with marks of scratches and damaged clothes in
the wrecked fences””.
f) “the case
documents show that I followed the request of the Riot Police personnel, showed
co-operation, did not use an insulting language and did not show signs of
violence, “marks of scratches and damaged clothes in the wrecked fences”, I
voluntarily attended the hearing for which a citation was issued and proposed a
witness who showed co-operation with the criminal prosecutor”.
g) “it is not found
whether the representatives of the Riot Police sent the criminal prosecutor
unedited and complete filming materials, presented on the original storage
device, performed with the technical means of the Riot Police”.
h) “it is not found
when and where the three Riot Police employees were heard”.
---PAGE 3---
i) “the elements on
which the Judge Advocate General based his decision to identify the three Riot
Police employees as potential perpetrators of the crimes being investigated are
not found”.
j) “the Judge
Advocate General did not offer me the chance of performing a visual
identification procedure related to the three Riot Police employees as
potential perpetrators of the crimes being investigated”.
k) “Hence, the Riot
Police employees did not have the right then and there to prevent me from
returning home, to ask for my Identity Card and to film me. I was treated as a
criminal with no legal reason. (...) The representatives of the Riot Police
resigned to degrading behavior towards me, limited my freedom of movement on
Romanian soil, did not respect my view according to which shale gas exploration
and exploitation through hydraulic fracturing, unsafe procedure in relation to
the quality of the drinking water and water for agricultural use (...) . The
representatives of the Riot Police, institution under the control of the
Ministry of Interior, part of the Romanian Government, did not provide the
conditions for me to freely participate in the political, social and economic
life of the country”.
l) “It is worth
mentioning that the Judge Advocate General in charge with Case no. 259/P/2013
showed lack of respect towards the undersigned taking into account the
following:
-he issued the citation for January
10, 2013 on December 23, 2013,
-
-the Ordinance of dismissal is dated
“Year 2013 month March day 14”,
-
-dated the Letter of the Vaslui County
Riot Police Inspectorate prior to December 7, 2013: No. 2324613/ 2013-02-05,
-he seized my original Citation
without providing any justification”.
--PAGE 4---
m) “Considering the
above-mentioned, I find that there is enough evidence to bring to trial master
sergeant ---, master sergeant --- and capt. ---, all three Riot Police
employees with the Ploieşti Riot Police Intervention Team, because the
adjudication ordered by the Judge Advocate General at the Iaşi Military
Tribunal is unsubstantial and unjustified”.
We also mention that the petitioner
appended copies of a number of documents: the Criminal Complaint that he has
submitted, the Citation, the Ordinance and the Letter of notice of the
Ordinance.
Considering the complaint submitted
by the said Sava Paul against Ordinance no. 259/P/2013 from 2014-03-14, the
documents and the proceedings of Case no. 259/P/2013 of the Judge Advocate
General’s Office at the Iaşi Military Tribunal, we hold the following as
relevant:
1.
The Criminal Complaint submitted on 2013-12-20 (leaves 1-2 of the Case) stated
that the aggrieved party Sava Paul provided information related to the
participation in the protest against shale gas exploration and exploitation
through the hydraulic fracturing method, protest which took place in Pungeşti,
Vaslui county, on December 7, 2013. The complaint provides fundamental details:
Sava Paul was prevented from returning home by walking on the verge of the
public road when he was stopped at two checkpoints handled by individuals
wearing the insignia of the Romanian Riot Police, he was asked for his identity
papers without presentation and without justification. At the same time, at the
second checkpoint, the Riot Police employee who was asking for his identity
papers used an insulting language, for instance «you crank». He was filmed by
another Riot Police employee without the presentation of the legal basis and
the purpose of the activity. Lastly, the aggrieved party states that “I felt mentally abused, intimidated, my
human dignity was challenged to a great extent and my constitutional rights
were terribly threatened”. As found, the criminal complaint initiated the
criminal case no. 259/P/2013 investigated by the Judge Advocate General at the
Iaşi Military Tribunal and adjudicated by the Ordinance of dismissal from
2014-03-14.
2.
The examination of the complaint and the Ordinance challenged leads to the
conclusion that the latter is unsubstantial and illegal due to the following
reasons:
---PAGE
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a)
the criminal proceedings did not establish the state of things clearly and
completely, particularly the two essential aspects shown by the aggrieved party
Sava Paul: the practical manner in which the identity control at the two
checkpoints was carried out and the legal grounds for this procedure. Hence,
two fundamental aspects of the case were not established: the number of
identity control procedures, the manner in which his personal data were
recorded and used, the legal grounds for the identity control procedure and the
working procedure of the Riot Police personnel (related to the rights and
duties assigned to the military personnel of the Riot Police as well the
operating procedures provided in the specialized legal texts or specialized
action plans), the use of an insulting language against the aggrieved party
during the verification of his identity papers. Furthermore, the circumstances
in which the filming procedure was performed and its legal justification were
not established in a clear manner. According to art. 62 from the Code of
Criminal Procedure of 1968 (operating at the moment when the preliminary
proceedings took place before the initiation of the criminal investigation,
valid till 2014-02-01), “In order to find
the truth, the criminal investigator or the court of law are hold to clarify
the case considering all the aspects”. Furthermore, according to the
principle of finding the truth, provided in the Code of Criminal Procedure of
1968 (art. 3) and the current Code of Criminal Procedure (art. 5), the legal
prosecutors have the duty of providing the evidence in order to find the truth
concerning the facts and the circumstances of the case.
b)
The Ordinance of dismissal no. 259/P/2013 dated 2014-03-14 does not reveal the
state of things in a clear manner, as resulting from the interpretation of the
case evidence. On the contrary, the deeds are revealed by reporting the content
of the aggrieved party’s statement and witness ---‘s statement or by inserting
details of the Vaslui County Riot Police’s Letters. Therefore, it is difficult
to establish the exact deeds and circumstances established by the legal
prosecutors and which of these were taken into consideration for the
adjudication of the dismissal.
c)
The legal grounds of the Ordinance are insufficiently presented and incomplete.
The provisions from the legal texts and the workplace specifications and action
plans are unclear in the case of “the military
personnel have the work-related duty to intervene whenever criminal and civil
offences occur by identifying and seizing the perpetrators, by identifying the
evidence, by documenting the offences with photographic and filming procedures
related to the activities of the perpetrators who committed serious offences
against the legal order etc.”
---PAGE
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Furthermore,
we see the enumeration of the deeds of the military personnel without the legal
reasons being provided and the correlation with the legal texts concerning the Romanian
Riot Police’s operations, the organization and the performance of the
activities with the purpose of maintaining public order and security, devising and
performing missions with the purpose of establishing and/or restoring public
order, the use of the structures in charge with public order of the Romanian
Riot Police, the applicable operating procedures: Law no. 550/2004
(particularly the provision concerning the identity check procedure- art. 27,
par. 2, let. b) and any other relevant legal texts, orders and other
administrative documents with a
strategic specialized purpose as well as the mission report.
In
compliance with the provisions of art. 315, par. 2, combined with art. 286,
par. 2, let. d, second part, Code of Criminal Procedure, the Ordinance of
dismissal must state the legal reasons of the adjudication as well.
d)
The aspect revealed in the Ordinance according to which “the deeds were not committed with the guilt provided by the law, that
is the intent” is not supported by the case evidence. It is obvious that
stopping and checking the identity of the aggrieved party were performed with the
intent defined within art. 16, par. 2, Penal Code. On the other hand, the legal
provision within the Ordinance does not cover the dismissal of the case
concerning the crime of «abusive behavior» because the Ordinance maintains that
the military personnel of the Riot Police “performed
identity check activities on the people leaving the place of the crime (…)
without any limitation of the aggrieved party’s freedom of movement, without
verbal or physical abuse”. In other terms, as revealed within the
Ordinance, the aggrieved party was not subjected to verbal or physical abuse,
situation in which we could not discuss deeds that were performed, while the
intent was missing.
---PAGE
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e)
Although within his Complaint and his statement, Sava Paul has shown that he
was stopped and verified twice, at two checkpoints handled by the Riot Police
personnel, there was no finding regarding the structure of the two checkpoints.
Moreover, the case proceedings do not show the particular checkpoint handled by
the three Riot Police employees who were identified, although, indirectly, the
aggrieved party’s statement shows that they were handling the second checkpoint
because at the second checkpoint the filming activity was performed.
f)
The claim of the petitioner Sava Paul according to which “the Judge Advocate General did not provide me the opportunity to
perform a visual identification of the three Riot Police employee as potential
perpetrators of the crimes” is true. The aggrieved party could have
identified the checkpoint handled by the three employees and could have
revealed the existence of other Riot Police personnel at that checkpoint.
Performing an identification procedure concerning persons within the provisions
of art. 132, par. 1, Code of Criminal Procedure, would have revealed the
identity of the individual who used an insulting language, as the aggrieved
party maintains.
g)
The Letter no. 259/P/2013 dated 2014-01-13 from the Judge Advocate General’s
Office requested the Vaslui County Riot Police Inspectorate to answer whether
the identity check of the aggrieved party was recorded audio-video and
requested a copy of the recording. The Letter no. 235109 dated 2014-02-14
provided a storage device, that is a CD, comprising “as well as photographs taken in the Silistea area at the time of the
mechanized convoy of Chevron vehicles” (leaf 42). Following the viewing of
the video material (leaf 41) and the examination of the record of proceedings
composed by the Judge Advocate General following the viewing (leaf 44), the
audio-video file “00143.MTS” comprises the moment of the identity check of the
said Sava Paul, but, undoubtably, shows only a fragment of the recording
without revealing the arrest or moments prior to the identity check proper. For
that matter, this aspect was raised by the petitioner in the Complaint against
the Ordinance of dismissal as well: “It
is not revealed whether the representatives of the Riot Police provided the
criminal prosecutor with the unedited, complete filming materials, presented on
the original storage device, taken with the technical means of the Riot Police”.
---PAGE
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Requesting
all the filming materials taken by the Romanian Riot Police would have
established the state of things completely regarding the arrest and the
identity check of the aggrieved party as well the behavior of the Riot Police
personnel in connection with him.
h)
The recordings made by the witness --- were not appended to the case documents,
although he stated on 2014-01-13 that “I
filmed with a camera and shall present a copy to the Judge Advocate General”.
i)
As the aggrieved party stated, the Ordinance does not provide clear legal
grounds for the filming activity performed by the Riot Police on 2013-12-07.
3.
There are other minor considerations within the Complaint against the Ordinance
of dismissal:
a)
“It is not revealed the place and time of
the hearing of the three Riot Police employees”- The hearing of the three
employees took place on 2014-01-21, at 11 a.m. at the Judge Advocate General’s
Office at the Iaşi Military Tribunal, following Citation no. 259/P/2013 dated
2014-01-17. (leaf 26)
b)
“The elements providing the grounds for
the Judge Advocate General’s decision to identify the three employees as
potential perpetrators of the crimes under investigation are not revealed”-
the identification of the two Riot Police non-commissioned officers- --- and
--- was made following the Letter no. 2630705 dated 2014-04-03 of the Ploieşti
Riot Police Intervention Team. It states that the said Sava Paul was checked by
them on December 7, 2013, as people have been leaving the protest area using
the County Road connecting Pungesti and Silistea, close to the entrance to the
latter place. Concerning officer ---, he was identified in the same Letter as
the officer who made the filming and was asked to attend the hearing. (leaf 26)
---PAGE
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c)
The Judge Advocate General “issued a
Citation for 2013-01-10 on 2013-12-23”
-the
claim refers to a material error concerning the date of hearing, the real date
of hearing being 2014-01-10 when the hearing was held. (leaves 7-10)
d)
---
e)
“The Ordinance of dismissal is dated Year
2013 month March day 14” - the claim is correct, another case of a material
error. This error was corrected within the Ordinance proper (leaf 48) but the procedure
of material error correction has not been performed as provided in art. 278, Code
of Criminal Procedure.
f)
---
g)
“dates the Letter of the Vaslui County
Riot Police Inspectorate prior to December 7, 2013: no. 2324613 dated
2013-02-05”- another case of a material error. The real date is 2014-02-05
(leaf 18).
h)
“he seized my original Citation without
providing any justification”- the claim does not provide enough evidence for
the result of the seizure. As a matter of fact, the petitioner appended a copy
of the Citation to the Complaint against the Ordinance of dismissal.
---PAGE
10---
Considering the above aspects, I
find that Ordinance no. 259/P/2013 from 2014-03-14 of the Judge Advocate
General’s Office at the Iaşi Military Tribunal is illegal and unjust,
adjudication which brings the admission of the Complaint submitted by the
petitioner Sava Paul against the Ordinance of dismissal and the invalidation of
the Ordinance, ordering that the aspects within the present Ordinance shall be
observed during the restart of the criminal proceedings.
Hence, based on the provisions of art.
339, Code of Criminal Procedure,
I
ORDER
1.
The admission of the said Sava Paul’s Complaint against Ordinance no.
259/P/2013 from 2014-03-14 of the Judge Advocate General’s Office at the Iaşi
Military Tribunal.
2.
The invalidation of the Ordinance challenged and the initiation of the criminal
proceedings considering the aspects within the present Ordinance.
3.
The copy of the present Ordinance shall be sent to the petitioner Sava Paul and
capt. ---, master sergeant --- and master sergeant ---, all three employed at the
Ploieşti Riot Police Intervention Team, through their commanding officer.
JUDGE
ADVOCATE GENERAL,
Brigade
general magistrate
NELU
CIOBANU
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