Treason in legislation and in life. IPN debate

A week ago, Parliament amended the Criminal Code article “Treason”. The move sparked multiple controversial discussions involving a series of important actors, including the government, opposition parties, international human rights bodies, civil society organizations, opinion makers, etc. The stated positions are diametrically opposed, from approval to categorical rejection, but all of them claim to take care of the stability and security of the country, as well as the fundamental rights of the citizens. What the new formula of the article provides, how much the concerns of the parties involved in the debates are justified, but also why these changes were needed now and to what extent they respond to the challenges at national and regional levels, invoked by the authorities, were among the issues discussed by the participants in IPN’s public debate “Treason in legislation and in life”.

According to the expert of IPN’s project Andrei Curăraru, the Criminal Code is the only criminal law in the Republic of Moldova that regulates all the most serious harmful deeds that violate the legislation. Laws other than the Criminal Code cannot stipulate criminal sanctions. It is an organic law, which means that it can be modified in a much more difficult way than an ordinary law. It is also a law that stipulates crimes and harmful facts.

“The offenses carry penalties and the criminal ones are the harshest, compared to other types of violations of the legislation, for example, administrative contraventions. What is important to understand is that this Code is driven by the state’s criminal policy, which stipulates the need to prevent, identify and counteract crimes. That is, apart from the fact that we are talking about penalties, we are also talking about the integration of criminal legislation into a structure that also provides ways of prevention, of prophylaxis of those crimes,” explained the expert.

He also referred to the differences between the Criminal Code and other acts, for example such as the Civil Code. Thus, the Criminal Code provides for crimes and penalties, while the Civil Code regulates legal relationships, especially in patrimonial and non-patrimonial sectors. “When we refer to criminal legislation, we must always understand that this interferes in human rights,” stated Andrei Curăraru.

According to him, as far as the draft law to amend the Criminal Code is concerned, the public consultations took place quite late. Also, not all the actors involved in the respective field were represented in this consultation process. And here we are talking about the government represented by a single party, the opposition, but also about the civil society represented by nongovernmental organizations, public associations, etc. “The latter somehow influence the legislative process by formulating its opinions, carrying out advocacy campaigns, putting pressure, usually public, on the government so that the legislation is as transparent as possible and the guarantees and principles of human rights are monitored as closely as possible,” said the expert.

MP of the Party of Action and Solidarity Igor Chiriac said that today the Republic of Moldova is facing particular hybrid threats. The state institutions also have the obligation to take measures to protect the state security, to empower the bodies to protect state security so that they can defend the country from hybrid threats, from hostile actions directed against the Republic of Moldova.

“Treason is today in the formula that was already published in the Official Gazette. It reads as follows: “Treason is the act that is intentionally committed by a citizen of the Republic of Moldova against the sovereignty, independence, unity, indivisibility, security or defense capacity of the Republic of Moldova, in the interests of a foreign state, a foreign organization, an anti-constitutional entity or their representatives, expressed by siding with the enemy in times of war or armed conflict,  espionage, disclosure of state secrets, aiding and abetting in hostile activities against state security,” stated the MP.

Igor Chiriac noted that this is provided in paragraph 1 of Article 337, while paragraph 2 provides for liability for the abovementioned act committed in material interest or by a public person, a person in a position of responsibility, a dignitary.

According to him, this formula of this Criminal Code article had been used since Soviet times and since then this norm was amended only once, excluding criminal liability for illegal exit from the Soviet Union and refusal to return. Now this article was analyzed through a number of angles, including as regards the interpretation of the terms and also the legislation of other states. “We have to admit that in fact when this norm was approved decades ago, the situation was different. Today we are facing hybrid threats, a hybrid war and we are obliged to adjust the legislation so that it corresponds to the threats to which we, the Republic of Moldova, are subjected,” said Igor Chiriac.

Lawyer Vadim Vieru considers that, indeed, the norm no longer corresponded to the current social realities. However, social realities are changing and the laws must be adjusted. There are cyber challenges, challenges related to hybrid warfare and the legal provisions need to be adjusted. The MPs cannot be reproached for having adjusted the legal framework, in the context of the current hybrid war. However, there was criticism, not much, but enough to spark debate in society.

“In the current version in which this norm was adopted, and MP Chiriac also mentioned that the notion of “hostile” activities could have a broader interpretation, I think we can face particular risks here. Many Criminal Code norms are norms that refer to other organic laws. If I’m not wrong, “hostile activity” is regulated by the law on state security. Whether reference is made to another organic law, the norm or definition of these hostile activities must be very specific,” stated the lawyer.

According to him, the criminal norm must be as detailed as possible when it is applied by the prosecutor. The more abstract is the criminal norm, resulting from the principle of criminal law, the higher are the risks that this norm will not be applied in the sense of criminal liability when it is indeed the component of a crime.

“When I say that such norms can be interpreted, I give the example of the Law on Countering Extremist Activity. The definition of extremism in this law is one that leaves room for abuses and in my personal practice I had situations when the Security and Intelligence Service requested the liquidation, based on this law, of a religious cult, invoking extremist activity. So, an extensive interpretation. As regards this phrase, “hostile activity”, again I don’t know how the judicial practice will be, how independent the prosecutor will be,” noted Vadim Vieru. In his opinion, it is necessary to define exactly what “hostile activity” means so as to leave no room for interpretation.

The public debate entitled “Treason in legislation and in life” was the 308th installment of the project “Developing Political Culture through Public Debates”, which is implemented by IPN News Agency with the support of the Hanns Seidel Foundation of Germany.

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