November 18, 2016 (UA)

The Law of Ukraine «On National Police» (hereinafter – «the Law») has been in force for more than a year. It is this law that defined the grounds, criteria and objectives of one of the most large-scale reform in the national legal system since Ukraine became independent.

This makes provisions of the new law the regulatory center of all reform aspirations. However, it is not ideal and needs improvements as well as development within regulatory acts and other laws. Below we’ll focus on a comprehensive review of the main existing problems of normative (first of all legal) regulation of police activity.

1. The Law itself that was adopted quite fast by the Parliament under the pressure of the Ministry of Internal Affairs that did not take into consideration any of the important experts’ amendments from civil society, and is not perfect from the European standards point of view. This was pointed out in the comments of the CoE Directorate General on Human Rights and Rule of Law. Pursuant to this comments the draft law on amendments to the Law of Ukraine “On the National Police of Ukraine” (regarding realization of recommendations stated in the comments of the CoE Directorate General on Human Rights and Rule of Law) was registered in the Verkhovna Rada of Ukraine with the number 4753 of 02.06.2016. The explanatory note to this draft law shows the problems that need to be fixed. However, unfortunately, as of today the consideration of this draft law is being dragged.

In particular, mentioned draft law proposes to introduce the following amendments to the Law of Ukraine “On the National Police of Ukraine” which are clearly stated in the relevant comments of the Directorate General:

• In articles 13, 22 of the Law to exclude pre-trial authorities (mandate is duplicated with that of the criminal police) and security police (goes beyond the limits of police activity) from the structure of police.
• In article 14 of the Law to transfer the mandate of approving the budget to the chief of police (in order to increase the independency of the police chief);
• In article 21 of the Law to provide exclusive mandate to appoint the first deputy and deputy police chiefs (with the aim of improved coordination of police leadership) to the police chief;
• In article 26 of the Law to exclude the possibility of processing databases with information on persons regarding whom police officers conduct preventive work (with the aim to protect the rights of persons and violations of presumption of innocence by collecting their personal data). Besides this, it is proposed to introduce the term for keeping personal information in databases;
• In article 31 of the Law to add the reason for checking documents (to ensure that police interventions are reasoned);
• In article 32 of the Law to add circumstances for legal inspection of documents of a person. Besides that, it is proposed to introduce the guarantee of observance of rights of persons regarding detention;
• In article 33 of the Law to exclude the possibility to invite a person for interrogation to police premises (with the aim to avoid cases of illegal detention of a person, misleading or imposing psychological pressure upon a person);
• In article 34 to add the guarantee of observance of rights of a person by obligatory video recording;
• In article 37 of the Law to guarantee the right of a person to being informed of his location. In addition to that, it is proposed to define specific terms for restricting person’s movement, seizure of a vehicle or personal belongings (with the aim to guarantee the rights of persons);
• In article 40 of the Law to provide persons the right to access video materials containing person’s records (such material is regarded as personal data);
• In articles 43, 46 of the Law to exclude the possibility to apply police coercive measures when it is not justified as well as to detalize cases of applying firearms (absence of criterion to define the “invalidity”) and risk of inflicting damages to persons).
• In article 45 of the Law to guarantee the right of a person to life and standards of the European Union regarding the use of non-lethal weapons and equipment.
• In article 47 of the Law to introduce a competitive approach to appointment of police officers (with the aim to provide for the objective and transparent appointment process).
• In article 48, 51, 52, 57 of the Law to introduce additional recruitment process of police officers in accordance with European standards – exclusively by competition and with engagement of civil society;
• In article 62 of the Law to introduce responsibility for interference with activity of a police officer;
• In article 76, 80 of the Law to change military police ranks to European, since as of today they are quasi-military which is not in line with the European tendency of forming a civil character of police service;
• In article 81 of the Law to exclude powers of the President of Ukraine regarding appointment of special ranks to the representatives of the highest police hierarchy (this contradicts the Constitution of Ukraine and the mandate of the President of Ukraine);
• In article 82, 83 of the Law to exclude the possibility of assigning ranks based on years of service (exclusively based on qualification);
• In article 86 of the Law to introduce the mechanism of control over the activity of National Police;
• In article 87 of the Law to provide the possibility to the head of police agency (unit), regarding whom the issue of adoption of resolution of mistrust is considered, to take the floor at the meeting of the relevant council during the discussion of the draft resolution on mistrust (in order to ensure objectiveness and transparency);
• In final and transitional provisions of the Law to foresee the transfer of healthcare institutions and higher educational institutions, subordinate to the Ministry of Internal Affairs of Ukraine, to the Ministry of Healthcare of Ukraine and the Ministry of Education and Science of Ukraine.

The list of indicated proposed amendments also shows the existing weak sides of the Law.

2. Until today the Disciplinary Statute of the National Police was not adopted. It has to provide for the transparent and objective procedure of consideration of complaints against actions of police officers and the order of imposing sanctions for the offences committed by them. The draft law on the Disciplinary Statute of the National Police of Ukraine is registered in the Verkhovna Rada of Ukraine (number 4670 of 16 May 2016) and was submitted by the Cabinet of Ministers of Ukraine. Its major drawback, however, is the limited possibility for civil society to control the legality and objectiveness of disciplinary investigations of offences committed by police officers.

3. In 2015 the Law of Ukraine «On amendments to some legal acts of Ukraine regarding improvement of regulation of relations in the sphere of traffic safety» also came into force, which lets the police to impose fines for violation of traffic regulations recorded automatically. However, after a year since the law has been in force the Ministry of Internal Affairs of Ukraine and the National Police of Ukraine did not take any substantial steps to introduce the system of video and photo cameras to record violations. The main reason of this, as stated by the representatives of the mentioned authorities, is the lack of funds to install and ensure functioning of the relevant equipment as in terms of the whole country subsequent costs can reach quite substantial amounts of budget money which the Ministry of Internal Affairs does not have. However, this does not impede to conduct measures on installment of the new system of recording violations in certain cities of Ukraine, meaning to introduce the new model of imposing fines on a step by step basis. Thus, we see an outright sabotage by the Ministry of Internal Affairs of Ukraine and the National Police of Ukraine of their functions on realization of provisions of the law.

Besides this, it is worth mentioning that the mentioned law was adopted without taking into consideration the fact that its main provisions complementing articles of the Code of Ukraine on Administrative Offences do not correspond with the Constitution of Ukraine. These provisions were thoughtlessly copied by the Ministry of Internal Affairs of Ukraine from a similar law which was deemed unconstitutional by the Constitutional Court of Ukraine of 22 December 2010. Besides that, some of its provisions contradict also to the European standards of bringing a person to administrative responsibility.

Therefore, we have to admit that it is the unwillingness of the Ministry of Internal Affairs of Ukraine, the National Police of Ukraine and of the Cabinet of Ministers of Ukraine (as the main administrator of budget funds) to implement in practice the legal act which provisions are important for public security, and from the other side – dragging with introducing amendments, that would prevent it from the destiny of the predecessor that was deemed unconstitutional.

4. The law includes a number of provisions that are important for society that, however, stay on only paper because of inactivity of the Cabinet of Ministers of Ukraine, the Ministry of Internal Affairs of Ukraine and the National Police of Ukraine that do not adopt necessary regulatory acts.

Thus, according to the article 11 of the Law, the level of trust of population in police is the main criterion for evaluation of activity effectiveness of police agencies and units. The evaluation of the level of trust in police is carried out by independent sociological services in the order defined by the Cabinet of Ministers of Ukraine.

However, the relevant decree of the Cabinet of Ministers on the evaluation of the level of trust of population in police has not been adopted as of today and therefore the process of defining police work effectiveness according to the new standards, based on qualitative and not quantitative indicators, is also not implemented. Thus, stays the soviet system of using quantitative indicators to evaluate police work which can be easily manipulated and contains information that society cannot check.

By the way, the absence of the indicated order blocks another very important provision, namely – article 87 of the Law. Mentioned article contains provisions on the fact that regional, city and district councils are authorized to express distrust to the heads of territorial police units only based on results of evaluation of police unit activity.

The Ministry of Internal Affairs and the National Police of Ukraine as well did not approve the order of reporting of the police chief and heads of territorial police units before the citizens. Such an order has to be adopted in order to implement the provision of article 86 of the Law stating that with the aim of informing civil society on the activity of police the police chief and heads of territorial police units shall once a year prepare and publish a report on police activity on the official web-portals. Annual report on police activity and territorial units of police. Annual report on activity of police and its territorial units has to include the analysis of the situation with crime rate in the country or regions accordingly, information on measures taken by police and results of such measures as well as the information on fulfilling priority goals of police and its territorial units set before them by police commissions.

5. Some regulatory acts of the Cabinet of Ministers of Ukraine contradict the law.

Thus, article 13 of the Law clearly defines that police consists only of the following units:
1) criminal police;
2) patrol police;
3) pre-trial authorities;
4) security police;
5) special police;
6) Police SWAT.

Along with this the Cabinet of Ministers of Ukraine in October 2015 created a number of interregional territorial police agencies which are not foreseen by the Law.

It is now about the Department for Economy Protection (created by a Decree of the Cabinet of Ministers of Ukraine of 13 October 2015 №830), Department for Cyber Police (created by the Decree of the Cabinet of Ministers of Ukraine №831 of 13 October 2015), Department for Combating Drug Trafficking (created by the Decree of the Cabinet of Ministers of Ministers of Ukraine №886 of 28 October 2015), Department for Internal Security (created by a Decree of the Cabinet of Ministers of Ukraine №887 of 28 October 2015). These departments are not foreseen by the Law, their activity raises concern from the legal point of view.

Above that, by creating the above mentioned authorities having an interregional status (by the way, at the moment when the mentioned Decrees of the government were adopted, the Law did not foresee such type of agency as «interregional», relevant amendments to the Law were adopted only in May 2016). The decentralized model of control of communities over the personnel policy of territorial police units and approval of priorities of work of territorial police units by the community was also deviated.

We’d like to remind that, according to the Law, constant police commissions shall be created in order to provide for a transparent recruitment (based in a competition) and promotion in police service. They should be comprised of, in the case of territorial police units, two representatives of civil society selected by the relevant regional council, the Verkhovna Rada of the Autonomous Republic of Crimea, Kyiv City Council, Sevastopol City Council.

Thus, the above mentioned units that will be dealing with, probably, one of the most important spheres of work of the National Police of Ukraine, are created as interregional, and consequently all personnel issues of their territorial units all over Ukraine will be dealt with by commissions comprised of civil society representatives delegated by only the Kyiv City Council.

6. Some acts of the Ministry of Internal Affairs, instead of introducing novelties in spheres of internal police functioning which will raise its effectiveness compared to militia, anchor the conservative and clearly outdated regulatory models.

For example, the Instruction on organization of control over the execution of documents within the National Police of Ukraine (approved by a Decree of the Ministry of Internal Affairs of Ukraine №503 of 13 June 2016) does not have provisions introducing at least the elements of electronic document flow in the work of the National Police of Ukraine.

The same could be said about the Order of forming and processing personal files of police officers (approved by a Decree №377 of 12 May 2016) that preserved the practice of formation of data on police officers in paper. Such a form of keeping personal data is susceptible to physical damage or elimination without the possibility of renewal and allows for the uncontrolled access to relevant information by a wide group of people.

In this context we should also point out the Instruction on organization of accounting and flow of criminal proceedings within the pre-trial investigation authorities of the National Police of Ukraine (approved by the Decree of the Ministry of Internal Affairs of Ukraine №296 of 14 April 2016) which indicates that “each investigator keeps the book of records of investigative work (on the flow of criminal proceedings), including information on the flow of all criminal proceedings where he conducts pre-trial investigation. It is allowed to keep such records with the help of electronic equipment having a duplicating character”. Thus, a Decree clearly indicates on the secondary role of modern informational means of recording information. At the same time keeping records of investigative activity in the electronic form would allow the leadership to effectively control actions of investigators, define priority tasks, quickly approve actions of investigator etc. Informational form of keeping records of investigative actions can also make reporting investigators make on each criminal proceeding easier.

In general, a wide of use of digital technologies within internal document flow of the National Police is a factor that can make the work of this authority faster, comfortable and less corrupt. New technologies are able to increase the effectiveness of work of every police officer and the whole system, and this all will save budget funds since a number of internal structures, that are busy with mainly paperwork according to the standards of previous century, will vanish.

Borys Malyshev,
Doctor of Law, chief expert of the group