Oleksandr Banchuk: The Freedom we lose (Dzerkalo tyzhnya, No. 15)

NB: The article was published in “Dzerkalo tyzhnya. Ukraine” newspaper No. 15 (April 22-April 27).

Many documents have been adopted in Ukraine to raise level of human rights protection and improve respective norms of the Constitution.

The list includes law on access to public information; on free legal assistance; on advocacy; on public associations; on the national preventive mechanism (empowers the public to control places of detention); the Criminal Procedural Code, which helped to adjust Ukrainian system of criminal justice in accordance with European standards.

Victory of the Revolution of Dignity provided great possibilities for further consolidation of constitutional rights of citizens in their relations with the state. This position is also proven by analysis of the National Human Rights Strategy and the Judicial System, Legal Procedure and Related Legal Institutions Reform Strategy for 2015-2020. Those documents have been signed into law by the President and the Parliament has developed detailed action plans on implementation of those strategic documents.

Though, analyzing vast changes to the legislation that occurred during last three years, it becomes clear that authorities have turned all those strategies into “useless scrap of paper” paying no attention even to the Constitution requirements (especially its second section on human rights and freedoms).

There is a timeline of cases, when authorities neglected Constitutional rights and freedoms. Continue reading “Oleksandr Banchuk: The Freedom we lose (Dzerkalo tyzhnya, No. 15)”

Eugene Krapyvin: Why doesn’t Ukraine need a new law on investigative activities? (Dzerkalo tyzhnya, No. 15)

NB: The article was published in the “Dzerkalo tyzhnya. Ukraine” newspaper No. 15 (April 22 – April 27).

On April 4 a draft law “On Investigative Activities” (No. 6284) was registered in the Verhovna Rada. This law is going to replace the old one of 1992, which was adopted when Ukraine wasn’t a member of the Council of Europe, didn’t have its own Constitution and had no intentions to join the EU.

Experts and scholars assert that the applicable law doesn’t meet either European standards of undercover activities carried out by law enforcement bodies, nor modern acts of Ukrainian criminal procedural law.

Last time the question about investigative activities was raised was the end of 2016, when parliamentarians failed voting for a similar draft law No. 4778, which had to maintain that soviet institution at least for some time.

IA Institution was developed in the middle of XX century within the soviet criminal justice and presented a set of secret actions, which were fixed as operating guidelines with appropriate security label. Interference into people’s private life during such undercover surveillance was considered normal. Legislation of the Soviet Union lacked real guarantees of human rights. Despite a number of transformations, current IA Institution has been inherited from the Soviet Union. But now it contains not only investigative measures, directed at acquisition of evidence within the criminal proceeding, but also norms of intelligence and counterintelligence activities, verification when providing an access to the state secret.

But we have to pay attention to the question whether we need an independent IA Institution parted from the criminal process. Continue reading “Eugene Krapyvin: Why doesn’t Ukraine need a new law on investigative activities? (Dzerkalo tyzhnya, No. 15)”

Bringing the legislation on administrative responsibility into accordance with standards of the EU and practice of the ECHR: report

The report is prepared by a lawyer, expert of the group “Police under control” Yevgen Krapyvin for the expert discussion “Development of legislation on administrative responsibility. New Code – necessity and perspective”, which took place in the Verhovna Rada of Ukraine Institute of Law on April 3, 2017.

Administrative tort law of Ukraine is still based on the Soviet Union Code of Ukraine on Administrative Offences (hereinafter referred to as CUoAO) of 1984, what prevents its reform despite groundwork carried out by experts and scholars.

First of all, we are talking about adoption of a new codified act – the Code on Administrative Offences – one of top-priority measures provided for by the Conception of the Administrative Reform in Ukraine[1] of 1998. This measure wasn’t realized because of a lack of political will among lawmakers and lack of consolidated approach within academic circles and state bodies, which use norms of administrative tort law. At that, during 1998-2013 at least three projects of the CUoAO have been submitted for consideration of the public, but none of them haven’t been supported. Development and adoption of the new code have been “canned” for years[2].

Today, taking into consideration reformation of the law enforcement (creation of anti-corruption bodies, reform of the police, etc.) and criminal justice (approval of the CPC of 2012, introduction of the Institution of Criminal Offences) we understand that administrative tort law has to undergo considerable changes. In this regard we have to talk about bringing the legislation on administrative responsibility into accordance with standards of the EU and practice of the European Court of Human Rights (hereinafter referred to as ECHR), taking into account intentions of Ukraine as for integration into the EU and international legal commitments it has to the Council of Europe. Continue reading “Bringing the legislation on administrative responsibility into accordance with standards of the EU and practice of the ECHR: report”

Oleksandr Banchuk: Disciplinary Statute of the National Police: police officers – not human?

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”. Continue reading “Oleksandr Banchuk: Disciplinary Statute of the National Police: police officers – not human?”

New Head of the Police – next step of the reform or conservation of the old system?

February 8, 2017 (UA)

It makes more sense today to discuss position of Arsen Avakov in further development of the National Police, than personality of Sergiy Knyazev as newly appointed Head of the body. We will be able to appraise plans, priorities of the new Head of the Police and his ability to fulfill them only after a few months of work.

We’ve already expressed our opinion on disadvantages of the competition – it remained closed for the society. Meanwhile, it would have been useful for the society and experts to become familiar with content and conditions of long-term and short-term programs, motivation letter, written by Sergiy Knyazev as a candidate and sent to the Commission. It is important, because it shows Knyazev’s main goals and ways to achieve them for the next 5 years as the head of the biggest law enforcement institution.

Avakov made an expected decision and chose acting high-ranking official of the National Police among three candidates (two of them were acting officials of the Police), recommended by the Commission according to the competition. Avakov chose a person most experienced in investigations.

Considering this choice we conclude that Arsen Avakov don’t see reforms of the police as relevant and urgent anymore, but he gives priority to stabilization of the police and combating crime under the leadership of authoritative and experienced representative of the “old police guard”. Sergiy Knyazev became an authorized enforcement officer in 1995 and was moving up the ladder despite change of ministers.

Avakov’s position meets expectations of the society, which wants to see the state protecting it against bandits and robbers. Because crime rate and number of robberies, resulted from objective reasons (war on the East of Ukraine, economic crisis, etc.) raised unprecedentedly.

Continue reading “New Head of the Police – next step of the reform or conservation of the old system?”