NB: the article is published on the web site of Ukrayinska Pravda.
The MIA has developed a Disciplinary Statute of the National Police, which doesn’t meet European standards and turn police officers into compliant and deprived of rights components of the administrative system, ready to perform any directions.
Adoption of the “Law on National Police” on July 2, 2015, became an important stage in reformation of the Ministry of Internal Affairs and creation of the new police. But this law is being realized along with the Disciplinary Statute of Law Enforcement Bodies, which was adopted 10 years ago (as of 2006).
It is impossible to build a new body in accordance with European standards in the field of relations with citizens, if internal rules of relations between police officers and their governing body remain “soviet”. Taking this into consideration, the government on the proposal of the Ministry of Internal Affairs put forward a project to the parliament No.4670 on the Disciplinary Statute of the National Police, which have already been supported in the first reading and is awaiting its approval.
Leadership of the MIA does try to provide not only decent remuneration of labor and social support, but also offers to introduce an unknown in the democratic world “presumption of rightness of police officers”.
Considering this we may have been anticipated wider rights of police officers and stronger guaranties of their activities in the new Disciplinary Statute of the Police.
Instead, the reality is opposite.
Heads of the MIA don’t need self-sufficient and independent police officers. They need compliant and deprived of rights components of the administrative system, ready to perform any directions.
Thus, the project of the Disciplinary Statute lacks comprehensive list of offences, which may make the police officers liable or cause a dismissal.
It opens huge possibilities for the police leadership to abuse “undesirable” officers. Policemen will never know which misdeeds will be punished and which will be encouraged. And the leadership will be able to use the law “by analogy”.
To learn the history and deplorable consequences for the society of retributive “by analogy” law it takes only to read “The Gulag Archipelago” by Aleksandr Solzhenitsyn.
For comparison: other laws that have been approved by the government recently clearly list disciplinary offences for all state officials, prosecutors and judges. The Constitution guarantees that only laws shall define acts as disciplinary offences (p. 22 part 1 Article 92).
The MIA has decided that the Constitution was no example for it, it didn’t have to follow the example of other public servants and constitutional directions didn’t cover police officers.
Also authors of the project of the Disciplinary Statute want to deprive police officers of the right to use legal assistance of attorneys, what contradicts the Constitution.
Though, Article 59 of the Constitution guarantees the right to legal assistance for everyone without exceptions and privileges. This right of the police officers is stated in the Resolution of the PACE No.690 91979 “Declaration on the Police”. Paragraph 9 of the Resolution states: “In case of disciplinary or penal proceedings taken against him, a police officer has the right to be heard and to be defended by a lawyer”.
Position of the MIA leadership on this question doesn’t meet European standards. It reckons as of old that lawyers in such disciplinary cases will interfere prompt and effective official inquiry and calling police officers to account.
Officials of the Ministry don’t take into consideration rights of the police officers on this question.
Developers of the Disciplinary Statute recognize only one person, who should have a disciplinary power regarding police officers, – the superior officer.
The MIA is positively against an independent police disciplinary body. But such body may become a serious obstacle for voluntary dismissals or restrictions used against police officers.
I’d like to remind, that such bodies have already been created in other areas. For example, there are disciplinary commissions for all state officials, which provide for compulsory participation of the public representatives; as for prosecutors – there is Qualification-Disciplinary Commission, where prosecutors are outnumbered; as for judges – there is a Supreme Council for Justice.
Also, there is a number of European recommendations in this sphere.
OSCE Office for Democratic Institutions and Human Rights made a conclusion about the project of the Law of Ukraine on the Police in 2014 that stated: “While not provided for in the Draft Law, it is acknowledged at the regional and international levels that an overall Independent Police Complaint Body should be in charge of receiving all complaints or starting inquiries ex officio, if needed, including in matters of disciplinary proceedings; such a body should also co-operate with the police” (paragraph 124).
In 2008 the OSCE Senior Police Adviser made a recommendation to authorize institutions of public control over police to develop recommendations on disciplinary actions.
More serious violations committed by police officers or investigations regarding high officials may be carried out by specially created disciplinary committees or civil bodies of external control.
So, the project of the Disciplinary Statute of the National Police has to be changed to meet European standards.
As representatives of the society we have to demand better protection of the police officers’ rights.
I’m sure that the police officer exposed to the “system” makes every person he faces just as vulnerable as he is.
Oleksandr Banchuk,
PhD in Law, expert on administrative law and criminal justice,
Center for Policy and Legal Reforms