Publication

Reformal of the bodies of internal affairs and Prosecutor’s office

The section is prepared by I. Telychkin.

 

Reforming of the Ministry of Internal Affairs of Ukraine

In 2015 the Ministry came close to carrying out reforms, which had escalated long ago. Nowadays, we are watching the beginning of dramatic changes within the government agency, however they do not always occur within the legal environment.

Another stage of reforming of the Ministry of Internal Affairs of Ukraine officially started with the Expert Board of Observance of Human Rights and Reforming of Bodies of Internal Affairs in April 2014. This idea belonged to the new management of the Ministry headed by A.Avakov. This Expert Board was formed mostly of members of public and human rights environment and it set a goal to develop a reforming concept and suggest this program document for government consideration by November 2014[1].

During the second half of 2014 the management of the Ministry of Internal Affairs of Ukraine implemented a lot of experiments in different cities of the country. The main idea of these experiments was to improve activity of the Bodies of Internal Affairs, implement European standards for their operation and cooperation enforcement with the population[2].

An experiment on activity improvement of bodies and subdivisions of internal affairs of the Chief Administration of the Ministry of Internal Affairs of Ukraine in Lviv region was prepared and carried out during the period from July 1 to October 31, 2014[3].

On October 22, 2014 after discussion at the extended meeting of the Board of the Ministry of Internal Affairs of Ukraine, the Cabinet of Ministers of Ukraine approved the Concept of high priority measures for reforming of the system of the Ministry of Internal Affairs by the Order No.1118-р[4]. One of the main tasks of the Concept is to increase the role of civil society institutions and self-governing authorities in provision of rights and freedoms of people and citizens, and improve effective cooperation with population and local communities. The Concept was supposed to be realized in two stages during 2014-2016. The same day, on October 22, 2015 the Cabinet of Ministers also approved the Strategy for development of the Bodies of Internal Affairs.

For the purposes of realization of the set amount of tasks it was necessary to establish the National public platform “Reform to MIA: transparency and responsibility”, the main operating principles of which are governed by the corresponding Rules[5]. The aim of the platform was to provide stable and transparent reforming process of the Bodies of Internal Affairs headed by the Ministry of Internal Affairs of Ukraine, combining experts of nongovernmental organizations, European and international institutions, scientists of academic institutions, representatives of state authorities and veterans of law enforcement establishments, concerned citizens and creative youth. The main tasks of the Platform included: implementation of international development principles of the Bodies of Internal Affairs system, expert support of activity of the Ministry of Internal Affairs of Ukraine, monitoring of the reforming process, information support of reforming processes.

According to the order of the Minister of Internal Affairs of Ukraine A.Avakov an experiment on formation of a unified patrol duty based on subdivisions of a patrol duty and the State Automobile Inspectorate, which would protect public order and prevent violations of law in the cities by means of special units took place from November 1, 2014 to February 28, 2015 in the city of Khmelnytskyi[6].

On May 22, 2015 A.B.Avakov signed the order of the Ministry of Internal Affairs of Ukraine No.598 “On carrying out an experiment for introduction of new forms and methods of operation in Sambir City Office of the Chief Administration of the Ministry of Internal Affairs of Ukraine in Lviv region” during the period from May 25 to July 25, 2015. The aim of the project was to bring the militsiya officers closer to population, provide cooperation with the society, fast response to citizens’ addresses and protection of their legal interests, professional growth of law enforcement officials, as well as to gain people’s trust to militsiya.

During July 20-22, 2015 a working group of the National public platform “Reform to MIA: transparency and responsibility” performed an independent monitoring of the results of experiment[7].

It should be separately mentioned about formation of a new patrol force of the Ministry of Internal Affairs of Ukraine within the government agency reform.

On January 19, 2015 the Minister of Internal Affairs A.Avakov made a notice of competition for inspectors of patrol force in the city of Kyiv. Being trained to serve in the future police, new employees took an oath in the center of the capital on July 04, 2015. Towards the end of 2015 the total number of police officers was 3580 people. 6320 people were taking the training course for positions in the National Police in 5 regions, and the competition was going on in 11 more regions.

It should be mentioned that representatives of the society (nongovernmental human rights organizations, first of all) were invited as members of the selection board for police inspectors and took part in training the selected candidates afterwards.

On July 02, 2015 Verkhovna Rada of Ukraine adopted a law “On the National Police”, which became effective on November 07, 2015 with some exceptions (in Kyiv – as of the day of publication, for Lviv and Odesa – since August 20, 2015)[8]. However, despite being so expectable within the society, the Law was very criticized by the leading experts in the sphere of protection of human rights.

According to the opinion of experts from the Center of Political and Legal Reforms (CPLR), a new Law legalized non-legitimate militsiya practice to stop people on the streets and check their documents, suspecting them of “committing violation of law”. According to this provision any person is imposed an unconstitutional obligation to carry documents all the time. If a person fails to have the corresponding document, a police officer is able to detain him/or and take to the police station for personal identification.

Experts also state that the Law has risks of violation of property rights, since art.37 of the Law provides “restriction of actual item possession”. Thus, police officers obtained the right to seize the item or vehicle, which “can be used to endanger personal or other person’s life and well-being or damage other people’s stuff”.

The Code of Criminal Procedure of Ukraine actually provides restriction and seizure of particular stuff, but only if it is related to committing a crime. The Code of administrative violations also gives an opportunity to seize stuff and documents in case of committing a crime, however, reasons for police restriction for stuff possession are specified regardless stated provisions and with violation of a pro rata principle[9].

These and other defects of the new Law are a result of quite a fragmentary involvement of social experts to development of a draft law. As a result, multiple corrections and comments concerning norms that create a hazard to human rights were neglected by the management of the Ministry of Internal Affairs and parliamentaries during the first and second reading in Verkhovna Rada of Ukraine.

During the first days of operation, Kyiv policemen faced a problem of legislation imperfection, since no necessary changes were made to regulatory acts governing police activity.

Prior to making changes to art.185 of the Code of Ukraine of Administrative Violations, the article disposition provided administrative responsibility for deliberate disobedience of legal enactment or militsiya officer’s request (not police) on his duty, as well as committing the same acts towards a member of public organization protecting public order and state border or a service member in case they participate in protection of public order. Changes to this article were adopted by the Parliament of Ukraine on July 14, 2015[10], and became effective only on September 26, 2015[11]. However, it was enough time for courts to create a precedent of closing proceedings concerning bringing people, who received protocols from officers of patrol force to administrative responsibility.

 

Reform of prosecution authorities

Unlike the Ministry of Internal Affairs, management of the General Prosecutor’s Office of Ukraine is taking it slow with the reform. Most national experts and human rights advocates are very concerned about this situation, since reform of the prosecutor’s office is about to fail.

In fact, reform started on July 20, 2015, when the General Prosecutor’s Office of Ukraine began taking documents for participation in the competition to fill the vacancies of chiefs of new local prosecutor’s offices, their first deputies and deputies. It was planned that on December 01, 2015 178 local prosecutor’s offices would have new chiefs. However, in reality, about 3/4 of candidates were present or former employees of the prosecutor’s office.

According to O.Banchuk (CPLR), such situation can be explained by holding the competition in summer, low position level, 5 year experience in legal sphere with the salary of only 2-3 thousand UAH. Not many professional lawyers, including attorneys, legal advisors, judge assistants, other professionals in the sphere of law were ready to participate in the competition for the lowest sectors of the prosecutor’s office. Since they understand that in senior prosecutor’s sector people will remain the same, so it will be very hard for them to change the system Therefore, conditions for holding a prosecutor’s competition didn’t provide complete substitution of prosecutor’s staff at first[12].

Another problem is public ban from participating in selection board of local prosecutors, since four out of seven members are representatives of an old prosecutor’s system, who had been working under the rule of the previous authorities. The rest of three members are selected by the Ukrainian Parliament.

According to the deputy of the Prosecutor General of Ukraine Vitalii Kasko, nowadays it is impossible to carry out a cosmetic reform of the prosecutor’s office. It is necessary to carry out a full reform: dismiss everybody and select new members. The reform provides decentralization and liquidation of hierarchy, because the present hierarchy – is protection of an influence system. However, in this part the reform is slowing down, since not everybody working in the prosecution authorities likes this type of reform. As a result, they try to put it off. Crisis in the prosecutor’s office reform was intensified by the decision of the Cabinet of Ministers, which negated all positive norms of the Law of Ukraine “On Prosecutor’s Office” in a part of remuneration of newly elected prosecutors. These norms provided remuneration of local prosecutors in the amount of ten minimum wages (about 14 thous. UAH).[13]

In reality, the state created conditions during the competitive selection, which either allow selecting candidates “in a closed way”, or allow previous staff, which is already used to corrupted system taking a position again.

Among positive moments one can name April 15, 2016, the date of formation of Assessment and Disciplinary Board of prosecutors, powers of which will include selection of candidates for the prosecutor’s position, examination of complaints (applications) about prosecutor’s disciplinary offense and execution of disciplinary proceedings, as well a lot of other powers[14]. This Board will include one attorney, two scientists, three representatives of the Office of Ombudsman and five prosecutors selected at the conference of employees of prosecutor’s offices.

Now the society has to follow the process of candidate selection and hope to get a real reform of the prosecutor’s office.

 

Recommendations

  1. In the sphere of non-discrimination. Involve international experts and representatives of the civil society and develop a training course for employees of the law enforcement bodies about prevention of discrimination on the part of employees of the law enforcement bodies towards vulnerable groups of society. Then include the corresponding course of training programs, professional development programs for employees of the law enforcement bodies.
  2. In the sphere of protection intensification of the rights of children. Learn international experience about approaches to certification, setting fitting criteria for position of social, pedagogical and other employees working with children. Additionally, it is necessary to implement a unified statistical reporting on violence, abusive treatment, exploitation of children and make changes to the Unified Register of Pre-Trial Investigations on entering some information about crimes committed towards children, including information about disabled people.
  3. In the sphere of observance of the right to life. Make methodical recommendations for employees of the law enforcement bodies about principles of effective investigation according to practice of ECtHR and then include an obligatory subject for training and professional development of employees of the law enforcement bodies regarding standards and practice of ECtHR in cases against Ukraine on violation of procedural aspects of art.2 and 3 of the Convention.
  4. In the sphere of observance of the right to privacy. Provide annual publication of impersonal reports on the amount of conducted secret investigatory actions, restricting the right to privacy and on the use of their results in the process of investigation of relevant crimes and court decisions.
  5. In the sphere of torture counteraction. Implement a mechanism, which would provide automatic registration system of visitors in each administrative building of the Bodies of Internal Affairs. Additionally, implement a personal custody record for detained (arrested) people.
  6. In the sphere of public control. Initiate development of a regulatory act on mechanisms for realization of public control of activity of subdivisions of the Ministry of Internal Affairs by local communities along with the development of the corresponding official provision.

[1] http://police-reform.org/articles/index.php?id=1437756763&w=%D0%95%D0%BA%D1%81%D0%BF%D0%B5%D1%80%D1%82%D0%BD%D0%BE%D1%97+%D1%80%D0%B0%D0%B4%D0%B8+%D0%B7+%D0%BF%D0%B8%D1%82%D0%B0%D0%BD%D1%8C

[2] http://police-reform.org/news/u-lvov-startuvav-eksperiment-z-udoskonalennya-d-yaln,  http://www.mvs.gov.ua/mvs/control/main/uk/publish/article/1287288

[3] http://police-reform.org/law/nakaz-mvs-ukra-ni-v-d-01_07_2014-622-

[4] http://zakon4.rada.gov.ua/laws/show/1118-2014-%D1%80

[5] http://police-reform.org/index.php?r=1.1.2

[6] http://police-reform.org/files/docs/1416512147.pdf

[7] http://police-reform.org/articles/dovidka_schodo_analizu_roboti_sambirskogo_mv_gumvs_ukrayini_u_lvivskij_oblasti_v_

[8] http://zakon5.rada.gov.ua/laws/show/580-19/print1448196003153058#n1064

[9] http://police-reform.org/index.php?id=1442468927

[10] http://zakon4.rada.gov.ua/laws/show/596-19/paran130#n130

[11] http://parlvydav.rada.gov.ua/parlvydav/doccatalog/document?id=51624

[12] http://dt.ua/UKRAINE/v-reformu-prokuraturi-vidpochatku-zaklali-minu-upovilnenoyi-diyi-ekspert-191683_.html

[13] http://www.dw.com/uk/%D1%80%D0%B5%D1%84%D0%BE%D1%80%D0%BC%D0%B0-%D0%BF%D1%80%D0%BE%D0%BA%D1%83%D1%80%D0%B0%D1%82%D1%83%D1%80%D0%B8-%D0%B1%D0%BB%D0%B8%D0%B7%D1%8C%D0%BA%D0%B0-%D0%B4%D0%BE-%D0%BF%D1%80%D0%BE%D0%B2%D0%B0%D0%BB%D1%83/a-18783663

[14] http://zakon4.rada.gov.ua/laws/show/1697-18

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