Criminal Procedure Code and Procedure on Notifying the Centers for FSLA Provision Violated by Law Enforcement Officials on 3,085 Occasions: Summary Analysis 2016

Details

17927053,805 instances of violation of the criminal procedure legislation and the Procedure on Notifying the Centers for FSLA Provision on Apprehensions, Administrative Arrests and Application of the Remand in Custody as a Measure of Restraint (hereinafter the Notification Procedure) committed by the law enforcement officials have been identified on the basis of all communications submitted to the regional centers for FSLA provision and the information received from lawyers providing secondary legal aid. The relevant detailed analysis is presented below.

AT THE OUTSET, THE FOLLOWING SHOULD BE MENTIONED

The Notification Procedure was approved by the Decree of the Cabinet of Ministers of Ukraine of 28 December 2011 (as amended). According to the Procedure, when identifying the violation of the requirements of the Notification Procedure by the relevant entities responsible for the submission of the information, the regional centers for FSLA provision shall inform the Coordination Center for Legal Aid Provision on the respective cases.

On 12 February 2016, a Memorandum of Cooperation in the Field of Free Legal Aid Provision was signed between the National Police and the Ministry of Justice of Ukraine; it is aimed, inter alia, at the implementation of joint measures and mechanisms to monitor the enforcement of individual rights, freedoms and legal interests, including the right to free secondary legal aid and safeguards applicable to legal profession.

The Coordination Center carries out systematic analysis of the identified facts of violations of the Criminal Procedure Code and the Notification Procedure by law enforcement officials.

In 2016, regional centers for FSLA provision received 43,767 notifications on the apprehension of persons, including:

- 18,368 notifications on the apprehension due to the commission of criminal offences;
- 25,399 notifications on the apprehension due to the commission of administrative offences or administrative arrest.

3,805 instances of violation of the criminal procedure legislation and the Notification Procedure committed by the law enforcement officials have been identified on the basis of all notifications submitted to the regional centers for FSLA provision and the information received from lawyers providing secondary legal aid.

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In response to this, the regional centers for FSLA provision have prepared 401 applications outlining particular facts indicative of the violations identified and requesting to carry out official investigations to apply appropriate response measures in each case; the applications were filed with the Main Department of the National Police in the relevant region or the Prosecutor’s Office in the relevant region or city. It should be noted that the total number of applications prepared and filed by the regional centers for FSLA provision was 72 in 2013; 106 in 2014; and 50 in 2015, i.e. there is a tendency of increase as compared to previous years.

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Most applications (3,764) concern violations identified by the competent employees (duty officers) of the regional centers for FSLA provision in the course of processing of the incoming notifications of apprehension, verifying data with entities responsible for such notifications and/or monitoring of the official web-sites of the Main Departments of the National Police in the regions and in the city of Kyiv.

Another 38 cases were revealed by lawyers engaged in the provision of free secondary legal aid in relevant region or city by regional FSLA centers and three more cases were revealed by family members and/or close ones of the apprehended persons.

‘As we can see, the number of notifications revealing the violations of the criminal procedure legislation and the Notification Procedure submitted to the regional centers for FSLA provision by lawyers and family members/close ones of the apprehended persons is critically small. Therefore, awareness-raising campaign for the general public and lawyers engaged by the regional centers in the provision of free secondary legal aid should be organized as soon as possible,’ – representatives of the Legal Aid Access Department at the Coordination Center comment.

MOST PROBLEMATIC REGIONS

Most applications in response to the violations identified were filed by the regional centers for FSLA provision with the Main Departments of the National Police and/or regional (city) Prosecutor’s Offices in Poltava (78), Kyiv (43), Sumy (41), Ivano-Frankivsk (23), Donetsk (23) and Dnipropetrovsk (20) region/city.

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Following the review of 41 applications filed by the Regional center for FSLA provision in the Sumy region with the Main Department of the National Police and the Prosecutor’s Office in the Sumy region regarding the identified violations of the criminal procedure legislation and the Notification Procedure by law enforcement officials, the following measures were taken in relation to the police officials concerned: eight verbal warnings; 16 strict warnings; four reprimands.

13 applications filed by the Regional center for FSLA provision in the Kherson region with the Main Department of the National Police and the Prosecutor’s Office in the Kherson region have resulted in the application of the following measures: 13 verbal warnings, four reprimands and one resignation from the service in the law enforcement authorities.

Following the review of 10 applications filed by the Regional center for FSLA provision in the Ternopil region with the Main Department of the National Police and the Prosecutor’s Office in the Ternopil region, three verbal warnings and one strict warning were issued.

As it was stated by Main Departments of the National Police in the Zhytomyr, Poltava and Chernivtsi regions, in response to letters of the relevant regional centers for FSLA provision concerning the identification and prevention of cases of inappropriate documentation of the status of the apprehended persons, two police officials were dismissed from the service in the law enforcement authorities and one official was dismissed from his office and transferred to a different position.

Overall, due to violations of the criminal procedure legislation and the Notification Procedure by law enforcement officials as identified by regional centers for FLSA provision, 144 police officials were subject to disciplinary sanctions and/or other disciplinary measures.

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In should be noted that this number has increased by 56% as compared to 2015 (63 officials).

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Reference: Article 12 of the Disciplinary Statute of the Law Enforcement Agencies of Ukraine (outlining the types of disciplinary sanctions).

‘As we can see from the analysis of the letters received by regional FSLA centers in response to their applications filed with the Main Departments of the National Police in the regions and in the city of Kyiv, most responses (42) are a mere formality as they do not contain any concrete information as to the measures taken against those responsible. This is very typical, i. a., for Rivne, Lviv and Chernivtsi region,’Olena Sinchuk, head of the Legal Aid Access Department of the Coordination Center says.

According to Ms Sinchuk, most responses state that as of the date of response, internal investigation is still underway (10) or no violations of the CPC or the Notification Procedure by the police officials was established (74).

‘We forward such letters to the Human Rights Department of the National Police asking them to ensure thorough check and application of appropriate response measures,’ – she adds.

Examples:

Regional center for FSLA provision in the Kirovohrad region was informed by a lawyer that her signature on the acknowledgment of receipt of a copy of her client’s indictment had allegedly been forged. The Center has prepared and filed an application with local Prosecutor’s Office. Based on this, a criminal case was opened under Article 366.1 of the Criminal Code of Ukraine (“Forgery by Official”). Currently, pre-trial investigation is pending in this case.

According to the Regional center for FSLA provision in the Ivano-Frankivsk region, they have established that the head of the Main Department of the National Police in the region had refused to verify the number of apprehension cases reported by local police authorities against the same number of cases registered by the Center. This incident was immediately reported to the Representative of the Head of the National Police for Human Rights Compliance at the Human Rights Department of the National Police Department in the Ivano-Frankivsk Region, along with request to take appropriate response measures.

In some cases, there was no reaction whatsoever to violations identified by the centers.

Thus, 95 applications describing particular violations of the CPC and the Notification Procedure by police officials continue to remain without any response, regardless of repeated applications filed by relevant centers.

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ESTABLISHED VIOLATIONS

Most violations (3,683) concern Article 213 of the Ukrainian CPC and paragraph 2 of the Notification Procedure ( violation of the deadline for notification of the regional centers on the cases of apprehension);

95 cases of failure to notify the relevant regional center on the apprehension of persons or application of restraint measures;

25 violations of paragraph 9 and 10 of the Notification Procedure (hindering the lawyer’s access to the apprehended person);

16 violations of Article 208.5 of the CPC (apprehension of a person without issuing an apprehension report);

six cases of carrying out investigative actions prior to the delivery of the notification of suspicion;

five violations of Article 54 of the CPC (compelling the person to waive of the lawyer appointed by the center, in the absence of such lawyer);

two occasions of failure to provide procedural documents to the lawyer for familiarisation;

one case of use of force in relation to the apprehended person, as established by the lawyer.

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CONCLUSIONS AND FURTHER STEPS

According to representatives of the Legal Aid Access Department of the Coordination Center, violations of the criminal procedure legislation and the Notification Procedure demonstrate poor knowledge of relevant rules by both persons apprehended on suspicion in criminal and/or administrative offenses and law enforcement official authorized to carry out such apprehensions.

Due to this, there is an urgent necessary in placing information materials (stickers, posters, booklets, information cards etc.) with the unified telephone number of the free legal aid system at the front desks of the police stations, in the rooms of investigators and operative officers, the premises for apprehended persons and persons remanded into custody, in staff vehicles and vehicles for the apprehended persons and persons remanded into custody, in the cells of temporary detention centers.

To provide legal basis for such placement, the Coordination Center has prepared a draft joint order of the Ministry of Justice of Ukraine and the Ministry of Interior of Ukraine ‘On the adoption of the Procedure for the placement of printed materials containing the information on the individuals’ right to receive the defence and free legal aid in the agencies and departments of the National Police of Ukraine.’ Following its approval by competent departments of the Ministry of Justice, the draft was forwarded to the Ministry of the Interior for their approval (letter of the Ministry of Justice of 30 January 2017 No. 782/29/26-17).

Furthermore, the Coordination Center has prepared a proposal for the amendment of the Information Card for Apprehended Persons adopted by the order of the Ministry of the Interior of 28 April 2009 No. 181. It is suggested to supplement the Information Card with the following information: unified telephone number of the free legal aid system (0-800-213-103) and the information on the person’s right to defend him or herself in person or receive legal aid, including the aid provided by the State in cases established by criminal procedure legislation and/or the law governing the provision of free legal aid. The proposal was filed with the deputy head of the National Police of Ukraine – head of the Main Investigative Department.

The analysis carried out by the Coordination Center indicates that the number of violations of the criminal procedure legislation and the Notification Procedure by the law enforcement officials has increased as compared to previous years. Accordingly, as a part of Cooperation Memorandum between the Ministry of Justice and the National Police of Ukraine, various educational activities are being implemented by the regional centers aimed at the awareness-raising among law enforcement officials and ensuring appropriate exercise of their functions.

Today, as a part of cooperation with the Human Rights Department of the National Police of Ukraine, proposal is being prepared for the draft Procedure for quarterly verification of the number of the apprehension notifications filed by local police on one hand and registered by regional centers on another hand, and also for the implementation of a mechanism for prompt and clear notification of the regional centers on the apprehensions carried out by the police.


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