“Hooliganism” – the cudgel in prosecutors’ hands or how to prove you haven’t been “extremely naughty”
A remaining gap in legislation is used by law enforcement as a cudgel against inconvenient people, but also as an instrument of pressure on suspects. It’s about the fact that Article 287 of the Criminal Code and Article 354 of the Code of Administrative Offences provide Criminalties for hooliganism, but the cases where you apply one or the other are not clearly established. The case of recently convicted actor, Sergiu Voloc, has brought the issue again to public attention.
Paragraph 1 of Article 287 of the Criminal Code defines hooliganism as “deliberate actions that grossly violate public order, accompanied by violence on individuals or threat of such violence, violent resistance to government officials or other individuals that interrupt hooligan acts, and actions, which by their content, are characterized by particular cynicism or impudence”.
The Code of Administrative Offences, by Article 354, construes hooliganism as a behavior which consists of “offensive berthing of individuals in public places, similar actions which violate moral norms, disturb the public order and tranquility of individuals.”
At the beginning of last month, Anticorruption Prosecutor’s Office reported that two policemen from Soroca were being investigated for extorting bribes. According to prosecutors, in February 2015, the policemen solicited from two young men 6.000 MDL to close a criminal case for hooliganism and re-classify the actions as administrative offences. Several lawyers have rung the alarm – it is not the only case of this kind.
It seems that the troublesome article is used by the Prosecutor’s Office of Riscani sector as a tool to persecute people who dared to criticize the transgressions and corruption in law enforcement. The Anticorruption portal offers you to see a list of such files.
The case of actor Sergiu Voloc
The well-known actor Sergiu Voloc has repeatedly exposed his critical opinion about the activity of law enforcement. In early March 2014, he had the nerve to hammer a few doors with his fists inside the Supreme Court of Justice (SCJ), thus protesting against a decision, which he deemed illegal. The Prosecutor’s Office of Riscani sector filed a criminal case against him under art.287 paragraph 1 and on the 1st of July 2015 the actor was sentenced to two years imprisonment with a suspended sentence on a probation period of four years. This means that Sergiu Voloc can always be handcuffed for any minor and inadvertently committed action.
“A milder punishment cannot be applied to the offender because it would make him scornful and would not lead to his correction,” motivated Judge Ludmila Holeviţkaia, who dictated the sentence in the actor’s case.
Sentencing the actor displeased many. In his support was formed an online group, civic activists are preparing for protests, and Amnesty International Moldova issued a statement saying that the conviction of Sergiu Voloc is “a disgrace to the Moldovan Justice”.
Violeta Gasitoi, lawyer who defended Voloc in the trial, claims that the court was biased in this case, and his conviction was illegal.
“Although the actions of Sergiu Voloc could have been classified under Article 354 of the Code of Administrative Offences, I have not asked for this because the prosecutor did not bring conclusive evidence that Sergiu had committed a crime. I requested Voloc’s acquittal. All the evidence presented by the prosecutor Ion Brinza were statements of employees (CSJ) and the report prepared by the police. We asked to view the video recordings, have an expertise made on the doors that Voloc had allegedly damaged, but the court rejected all those requests of the defense, accepting only the evidence of the prosecution. There was also not taken into account the fact that Sergiu Voloc had been provoked and was in an affective state. He came to a hearing at 13.00. Though it was during working hours, many offices were closed and in one office, at a large table with spirits, CSM employees were celebrating March 8, although it was a working day. Voloc was bullied, kicked out, called “drug-addict”, “alcoholic”, “scum” and with other insulting words. It was normal that a reaction of this type had followed”, the lawyer told us.
The case of protester Anatol Matasaru
Another case, where the criminal case was initiated on the same Article 287, is that of Anatol Matasaru, became known for his original protests against corruption in law enforcement. From his first protest in December 2007 when he installed on his car the slogan “Stop bribing traffic police!” between Matasaru and law enforcement agencies started a ping-pong game. In April 2009, he was detained by police and tortured. Then he was convicted for active participation in violent protests on 7 April 2009 and ordered to pay a fine of 10,000 MDL. Whilst his torturers during those events, had never been held responsible – some were removed from criminal prosecution, and the case in which only two suspects were left, after five years of hearings, finally reached a court of first instance for re-trial.
However, Prosecutor’s Office of Riscani Sector appears not to lose sight of Anatol Matasaru and reacts ex-officio to almost every move of his, initiating criminal cases for hooliganism. In March 2015 he was sentenced by the Court of Riscani Sector to three years of suspended sentence, under Article 287, for the renowned protest in front of the Prosecutor’s General Office, when he brought a molding of a two-meter phallus which had printed on it the face of the Democrat Party’s leader Marian Lupu. The prosecutor Nicu Sendrea asked the court to sentence Matasaru to two years in prison.
The same prosecutor filed against Anatol Matasaru two criminal cases under Article 287, of the Criminal Code. “In the first case we asked a magistrate from Riscani sector to give me part of a decision. I was five minutes late at trial, and he adopted a decision in my absence and refused to give it to me. In the second case, I was being an incidental witness, I filmed some prosecutors from Riscani sector raiding “Calea Basarabiei” market. The traders actually gathered there for a protest against the actions of the IRS and prosecutors. I admit that I may have committed some violations, but which had to be classified through the Code of Administrative Offences. In 2013, I was beaten by a boxer lawyer in my backyard, in the presence of several people, including children. I was hospitalized for two weeks. So, this very case was interpreted as an administrative offense, and the perpetrator paid a fine of 500 MDL, “said the activist.
The case of lawyer Vitalie Taulean
Lawyer Vitalie Taulean neither escaped Riscani Sector prosecutors, who filed against him a criminal case for hooliganism. The incident occurred on October 17, 2014, when Vitalie Taulean presented to the Prosecutor’s General Office, along with his clients.
In a press release, the Prosecutor’s Office announced that the lawyer was under investigation for hooliganism after he had allegedly violated public order, entering the premises without producing his permit. According to the prosecution, Taulean had shoved the guard and had insulted the prosecutor who was going to hear the two of lawyer’s clients.
Advocate’s version is different. Taulean said that he had produced his permit at the entrance to the Prosecutor’s Office and that he had been bullied by the prosecutor and forced to leave the premises of the institution. In a press conference, the counsel stated that this case is nothing but retaliation from officials whom he publicly accused several times for unlawfulness.
The case of activist Iurie Draniceru
With the same instrument, criminal action under Article 287, Prosecutor’s Office of Riscani sector is trying to put to his place another civic activist – Iurie Draniceru, involved in protests in the Square of Europe in December 2012, when the construction of Sbarro pizzeria was stopped. The illegal construction site had appeared overnight in the historical center of the city, without a building permit and without having an approval from the National Council of Historical Monuments under the Ministry of Culture. Finally, the construction was stopped.
Draniceru noted his presence in protests against the construction of lofts on Grigore Vieru avenue. In that case, a firm had forged the signatures of the building’s residents and obtained authorization from the City Hall. Iurie Draniceru would have been brutally beaten by two employees of the construction company, while two policemen held him so he could not fight back. Later, Prosecutor’s Office of Riscani sector turned Draniceru from the victim into the defendant, filing a criminal case against him for hooliganism. As in the case of Matasaru, the prosecutor requested for Draniceru to be investigated in custody, claiming that he could evade criminal responsibility and go to Transnistria; the Riscani Sector court followed the prosecutor’s request and issued a warrant for the arrest of Draniceru. The activist was later released by the Court of Appeal.
The case of prosecutor Dan Coptilet
However, in most cases, provisions of the article from the Criminal Code are not true for prosecutors who commit crimes. Dan Coptilet, the son of Coptilet Valentina, member of the Board for attestation of judges, is now prosecutor in Ialoveni district. Two years ago, when he was prosecutor in Centru sector of Chisinau, Valeriu with his brother and four friends of theirs, got involved in a fight like in the movies on Calea Orheiului street in Chisinau. The incident would have taken place after two of prosecutor’s friends were reprimanded by the owner of a shop that they had parked illegally and blocked the entrance to the shop.
There followed an exchange of words, which resulted in an altercation. The two men phoned prosecutor Coptileţ, who came “to the rescue”. According to the documents available, the prosecutor was extremely violent and attacked the opponents with his fists. Ultimately, the shop owner, his son, and two other employees were inflicted different traumas and concussions. Police opened a criminal investigation for hooliganism, which was taken over by the Prosecutor’s Office. On 6 December 2013 prosecutor, Dumitru Stoicev, from Chisinau Prosecutor’s Office issued an order to close the case and release from criminal prosecution Dan Coptileţ and his accomplices on the grounds that the act “met constitutive elements of petty hooliganism under Article 354 of the Code of Administrative offences “. The six assailants were neither held accountable for the administrative offence, because the limitation period of 3 months had expired.
What prosecutors say
Igor Popa, chief prosecutor of Riscani sector, where most of criminal cases had been filed under Article 287, against those who showed their civic activism, told us that in cases like that of Sergiu Voloc there were some decisions of prosecutors and courts, based on certain facts and in accordance with applicable law.
“In respect to each of this individual there were taken actions under the law. By all standards, evidence is assessed based on the intimate conviction of persons and based on case materials. I am ready to defend each cause and can say with certainty that in no case an arbitrary approach and misjudgment was used”, said Igor Popa.
Moreover, the prosecutor denies any allegations that the Prosecutor’s Office of Riscani sector would try to take revenge on inconvenient people. “All these resounding cases were investigated by the Riscani sector Prosecutor’s Office because we have verticality and we’ve never been afraid, neither I personally nor my colleagues, to call things their names. If a person is a criminal, regardless of his status – journalist, activist and lawyer, and has committed actions which fall within the Criminal code, he is to be punished. In addition, the administrative boundary of Riscani sector is up to Columna street, respectively, all violations that occurred during the protests in front of the state institutions located in Riscani sector – Prosecutor General’s Office, Supreme Court, National Bank – are investigated by the Prosecutor’s Office of Riscani sector. It is by no means a reckoning, “concluded Igor Popa, chief prosecutor of Riscani sector.
What lawyers say
Lawyer Victor Pontaru said to Anticorruption portal that the rules pertaining to classification of the offense of hooliganism are interpreted selectively by both prosecutors and judges. “Cases like that of Coptilet or Voloc are many. There is no clear interpretation of the concept of particular cynicism, remaining free to interpretation of prosecutors and criminal investigators. In most cases, the same investigator or prosecutor selectively applies Articles 287 of PC and article 354 of CC, depending on the social status or the thickness of the suspect’s wallet. In most cases, ordinary citizens are prosecuted for hooliganism, while the officials or those that pay bribes are punished administratively or at all, due to the expiry of the limitation period, “commented Victor Pantaru.
The lawyer claims that it often happens when ordinary citizens, who do not know the law, are threatened with criminal cases for petty hooliganism actions, and they, fearing to go to jail, pay bribes so as their actions to be investigated under the Code of Administrative Offences. “In theory, it seems that there is a limit between the Criminal Code and Code of Administrative Offences defining the act: crime of hooliganism and petty hooliganism offence. In practice, this distinction does not exist, and prosecution authorities interpret these cases according to their liking. This happens while we do not have an independent judiciary and most often judges follow the interpretation provided by police or prosecutors, “said the advocate.
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