The view of the Ministry of Internal Affairs on petitions referring to the intervention of the police during the manifestations against shale gas exploration in the village of Pungeşti
I. Short presentation of the applicable legal framework, particularly that governing the powers of the Romanian Police in maintaining public order and that of the Romanian Gendarmerie in the context of ensuring and restoring public order
According to Art. 26 para. (1) pt. 2 of Law No 218/2002 on the organisation and functioning of the Romanian Police, republished, this institution applies measures to maintain public order and peace, the safety of citizens, to prevent and combat crime and to identify and counteract the actions of elements which violate the life, liberty, health and integrity of individuals, of private and public property and other legitimate interests of the community. Having in view the possibility of using additional forces of the Ministry of Internal Affairs in support of the activity of maintaining public order and safety conducted by the Romanian Police, in order to create mechanisms of cooperation and control, Order No 60 of the Ministry of Administration and Interior of 2 March 2010 on the organisation and execution of activities for maintaining public order and safety was adopted. This piece of legislation, issued in application of the higher regulatory framework, in relation to available skills and the human and logistical resources available to the Romanian Gendarmerie and the Romanian Border Police, established an administrative mechanism for joint action of the police - gendarmerie - border police. Thus, the possible inclusion in the system for maintaining public order and safety across urban and rural areas of additional forces from the gendarmerie and border police, to be used for setting up joint patrols or, where appropriate, patrols of gendarmes, under the coordination of the police, was decreed. With reference to the special zone of public safety1, we wish to emphasise the fact that the activity carried out in this zone is characterised by an increase in police numbers for a limited period of time. Thus, according to Art. 12 of Order No 60 of the Ministry of Administration and Interior of 2 March 2010, in the special zone of public security, additional procedures shall be established for public order and safety, including using personnel from other police departments - criminal investigations, rapid intervention detachments etc. These will act to remove the causes that have led to criminal activity in a particular zone – violence, drug trafficking and consumption etc.
1 instrument for planning and concentration of available human and logistics resources, circumscribed to the set of measures undertaken and activities conducted daily by the Romanian Police to protect and ensure respect of the fundamental rights of citizens
LT\1057580EN.doc PE554.813v01-00 EN EN The activities in this zone are specific to measures to maintain public order and safety, which is why it is necessary to clarify the conceptual boundaries compared to the measures taken in the context of ensuring/restoring public order, as presented further below. According to Art. 19 para. (1) b) and c) of Law No 550/2004 on the organisation and functioning of the Romanian Gendarmerie, as subsequently amended and supplemented, this institution: performs missions to ensure public order during meetings, marches, demonstrations, processions, picketing actions, promotional and commercial actions, cultural-artistic, sporting, religious and commemorative manifestations, and any other similar activities taking place in public space and involving crowds of people; performs missions for the restoration of public order when this has been disturbed by any act or acts which contravene the laws in force. For these types of missions, the activities of the gendarmes are carried out solely under the direction and coordination of the hierarchical heads of the Romanian Gendarmerie, the chiefs of the police units having no mechanism of hierarchical subordination of this force. Consequently, based on the hierarchical chain of command in the case of actions in the context of missions for keeping and restoring public order, the entire responsibility for how the activities are conducted belongs to the chiefs of the gendarmes’ structures. It should be noted that in this type of activity, the police units act as a support force, the principal competences being those of traffic control and provision of data and information necessary for the gendarmerie to fulfil their missions. II. Point of view in respect of the content of petitions
From the date of 15.10.2013, in the county of Vaslui, Pungeşti commune, Siliştea village, construction works were commenced by SC CHEVRON ROMANIA EXPLORATION SRL for the ‘land planning and drilling works’ for the Siliştea - 1A exploitation derrick. Since then, within the commune in question there have been several protests against shale gas exploration, which led to the classification of the zone of Pungeşti locality under the category of ‘special zone of public safety’. Having in view these events, in the commune of Pungești, in the period referred to, from the point of view of public order and safety measures, two types of legal missions took place in parallel: Mission of maintaining public order – administratively planned on the basis of documents issued at the level of police units within the Vaslui County Police Inspectorate. In the period 07.12 - 10.12.2013, in pursuing the action of maintaining public order, the public order and safety deployment in the commune of Pungești was formed by a joint patrol consisting on each shift of 2 policemen and 2 gendarmes. The police involved in this mission conducted activities under the law in force, under the direction and coordination of the chiefs of the police units.
PE554.813v01-00 2/5 LT\1057580EN.doc EN As regards the events that took place on 02.12.2013, planning documents mentioning concrete activities to be carried out by the police structures were prepared by the Vaslui County Police Inspectorate, these being focused on supplementation of the system for maintaining public order and conducting specific activities targeted mainly at: . ensuring normal traffic circulation on the public roads and on the routes used by the participants for travelling to the public assembly; . obtaining and providing necessary data and information for the structures of gendarmes and organisation of preventive measures within the commune of Pungeşti; . researching and taking legal measures against persons who have committed crimes or misdemeanours; . establishing the identity of persons who have committed crimes or misdemeanours; . establishing the identity of persons of interest to the mission; . compliance with the regime of arms, ammunition and explosives, as well as the implementation of decisions/provisions of the local authorities/mayors on limiting or prohibiting the sale of alcoholic beverages; . the apprehension of persons prosecuted under the law. As an element of appreciating the proportionality of the measure it is to be noted that by the establishment of a special zone, civic rights and freedoms are not affected in any way, activities to prevent and combat crime by increasing the human and logistics resources being intensified in that zone. ‘The special character’ is only given by the concentration in the zone of a police force for the resolution of current service tasks, all of which being circumscribed to daily activities of maintaining public order and peace. An analysis of the provisions of OMAI No 60/2010 reveals the fact that the special zones of public safety are not constituted as an element of ensuring and restoring public order. Thus, for the period specified in the petitions which are the subject of this correspondence, the police participating in the action conducted specific activities for ensuring traffic flow in the zone, to maintain public order and safety, as well as research activities at the scene and they did not intervene with force to disperse participants. Mission to ensure and restore public order – administratively planned on the basis of documents issued at the level of the Romanian Gendarmerie and the Ministry of Internal Affairs. The gendarmes involved in this mission conducted the activities envisaged under the law in force, under the direction and coordination of heads of the gendarmerie units. Thus, the Gendarmerie carried out a mission of public order aimed at fulfilling its legal duties, namely those of preserving the climate of social normality, of prevention of the disruption of public order and of the prevention of the commission of antisocial acts, in a rural area characterised by the existence of a single public road, against a background of previous social tensions and under conditions of operational
LT\1057580EN.doc 3/5 PE554.813v01-00 EN situations which determined the inclusion of the area of Pungeşti village in the category of ‘special zone of public safety’. The procedures of action adopted by the Gendarmerie to execute the mission, under the intentional blocking of a sector of the public road (County Road No 159, at the exit of Siliştea town in the direction of Pungeşti village, Vaslui county), demonstrate the opposite of a forceful intervention: . permanent dialogue with protesters was initiated and maintained; . provided equipment not being used (tear gas sprays, high capacity dispensers of tear gas, handcuffs, rubber truncheons/tomfe); . the action of the Gendarmerie deployment was a nonviolent one, but firm and homogenous, to unblock the communication path and to prevent the destruction of private property or the disruption of public order; . persons who did not follow the legal warnings made by the forces of order in connection with the need to respect the law, leaving that area and unblocking the communication path, were physically removed from the road, by hand and led, according to the intensity of their action of opposition, towards loading points, in order to be taken to the premises of the police unit (IPJ Vaslui), to establish the concrete circumstances in which these persons behaved and to take legal measures against them. The conduct of the Gendarmerie action on County Road No 159, at the exit of Siliştea town in the direction of Pungeşti village, was due to the presence, on 02.12.2013, around the time of 05.30, of a group of about 100 persons blocking the traffic on the public road and protesting against the shale gas exploration - development – exploitation agreement. Respect of the graduality principle in connection with the action2 performed by the Gendarmerie to unblock the communication path on 02.12.2013, the negotiation activity conducted on site (evidenced by repeated messages of the gendarmes-negotiator addressed the protesting citizens about the illegality of their actions), the legal warnings, the reactions of the citizens after receiving these, as well as the limiting of physical contact between the deployed forces and the protesters without using other provided equipment, in order to push them back and unblock the communication path, represents, in our opinion, many arguments in support of sustaining the full legality of the forms and action procedures adopted by the Gendarmerie. At its peak and in the dynamic of the action of unblocking of the public road, respectively in the realisation of the deployment for ensuring public order, the access and passage of persons and vehicles on the communicating sector were limited, for obvious reasons related to the implementation of protection measures, both for its own personnel, for the protesting citizens - in the transition from the
2 recorded by the means of evidence - operative videos made by the Gendarmerie
PE554.813v01-00 4/5 LT\1057580EN.doc EN deployment of action to unblock the public road to that of ensuring public order, as well as for the citizens who would have wished to transit the area, or for the representatives of mass media. At the moment when conditions of normality and safety were ensured, access to the public road was free, but controlled by the Gendarmerie and Police, according to the rules of jurisdiction. In reference to the legal status attributed to ‘the land on which the camp near the Siliştea village was located’, the Ministry of Internal Affairs is not empowered to rule on issues that fall within the competence of other relevant institutions of the state to verify and resolve. In circumstances in which an individual (the landowner, concessionaire or lessee) considers themselves wronged in the exercise of their rights and freedoms, as a result of certain actions undertaken during the execution of specific missions and in the fulfilment of legal duties, he has the right to appeal to the authorised bodies of the state and to seek correction of the respective errors. In conclusion, the activities conducted by the Police and the Gendarmerie were circumscribed within the legal framework, these being proportional to the causes which determined and justified them in a democratic society, they being aimed at maintaining and ensuring public order and safety, the safety of citizens, preventing and combating crime and identifying and counteracting the actions of elements that threaten the life, liberty, health and integrity of individuals, of private and public property as well as the legitimate interests of the community. At the same time, there have been two cases before the courts on the management of the situation at Pungeşti as follows: file No 4366/89/2013 at Vaslui Court, concerning a request by the named Agache Vlad Mihai to be provided with some documents issued by the Romanian Gendarmerie on the events at Pungeşti. On 22.04.2014, in sentence No 392/CA/2014 (Annex No 1), the trial court dismissed the action as unfounded. The named Agache Vlad Mihai appealed against this sentence, later renouncing the trial; file No 8135/333/2013 at Vaslui Court, concerning a request by the named Nicolescot Simone who, like the petitioners in this application, criticised the abusive restriction of the rights to free movement in the area of Pungeşti following the imposition of the special zone of public safety, asking for moral damages. The case was resolved by the trial court with rejection of the application.
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