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5 may 2016

Why courts are restoring fired police officers en masse, and how to stop it

Recertification of police officers and the campaign aimed at cleansing law enforcement agencies of crooked cops, launched last year, is at risk of falling through.

Police officers who failed a recertification test are being restored to their jobs en masse via legal action.

Why does it happen?

Many blame the stalling reforms in the new police force on the unreformed judicial branch of power and its stubborn unwillingness to implement any changes. In some ways, that’s true. However, one should not automatically attribute all woes befalling the country to our courts.

Fact is, because of the loopholes in law, judges are simply left with no other choice than to restore fired ex-police officers to their former jobs.

Thus, Ukrainian courts have been recently criticized on numerous occasions by the Interior Minister Arsen Avakov and the National Police Chief Khatija Dekanoidze for overruling failed recertification tests of police officers. There were even reports suggesting that this stance of Ukrainian courts was the reason for declining recertification rates in Ukraine’s regions, and discussing the possibility of abolishing this procedure within the police force.

However, it was the stance of the Interior Ministry’s senior officials that laid a hidden mine in the law on the National Police, and it now casts doubt on the entire reform.

Analysis of relevant court judgments shows that administrative courts have no choice but to protect police officers, according to the new Law of Ukraine On the National Police.

Why, then, administrative courts have to rule that decisions of certification commissions are in breach of the law on the police?

Let us explain.

*   *   *

The new law on the National Police was published on 6 August 2015. Paragraphs 8 to 10 of this law’s final provisions set out the following sequence of actions with regard to the police personnel during the next three months, from 7 August to 7 November 2015:

1) warning all militsiya (police) officers about the upcoming termination of employment;

2) appointing police officers to their positions on the basis of orders issued by their superiors or after passing a job appointment contest;

3) terminating police officers who failed to pass a contest or have resigned.

When the parliamentary committee concerned was finalizing the wording of this law, a question has risen regarding the Interior Ministry’s ability to handle certification of the 150 thousand-strong police force within such a short period. And only after the Ministry gave its assurances, the lawmakers left the three-month certification period in the law, not six months or one year.

But during this period – until 7 November 2015 – no job appointment contests were held, and the overwhelming majority of militsiya officers have been automatically rehired to the police force.

The incumbent police chief was appointed only on 4 November, three days before the entry into force of the law on the whole.

Therefore, the legal opportunity to cleanse the police force was lost.

Only on 17 November 2015 did the Interior Ministry adopt the Instruction on the Police Officer Certification Procedure, which currently serves as the basis for recertification of police officers. This Instruction is formally based on the provisions of Article 57 of the Law on the Police Officer Certification Procedure. However, that’s wrong, and that’s what administrative courts base their judgments on.

All officers who underwent or are presently undergoing recertification have been hired to the police force before 7 November 2015 on the basis of orders of the Ministry’s senior officials; as we said earlier, it was done automatically.

As for the police officer certification process under Article 57 of the above law, it does not concern the overall (en masse) recertification, and may be held only in the following three cases:

1) promotion, when appointment contest is not held;

2) demotion for being unfit for the position;

3) termination for being unfit for the position. 

What do these grounds mean for termination of police officers?

At first, there should be certain criticism and complaints concerning performance of a particular police officer or launch of disciplinary proceedings, proving that the police officer is unfit for the job. After that, the police officer may be required to pass certification test, and based on the results of this test, a decision should be made on whether the officer may keep his job or should be fired.

However, if at least one of the elements of this procedure is unavailable, the law does not permit certification.

Why has the law set these limitations on certification? The answer is to avoid a situation when the replacement head of a police unit decides to subject the entire personnel of his unit to the overall recertification in order to fire officers not loyal to him.

Therefore, administrative courts enter an avalanche of judgments finding the absence of legal grounds for recertification of police officers, thus protecting the rights of officers who fail to pass this procedure and must be terminated from the force. The existence of the certification instruction does not save the situation either, because courts rightfully believe that this instruction is not conformant with law.

This is a classical situation in the sense that it reflects the struggle between "expediency" and "legality".

Is it expedient/necessary/desirable to subject the police force to recertification? – Undoubtedly, yes!

Is it legal/lawful to subject the police force to recertification at present? – Surely, no, and the courts only confirm that.

The good news is that the situation is not hopeless and may be fixed. For that, all we need to do is to introduce pinpoint amendments to the transitional provisions of the law in order to provide legal basis for the present recertification procedure.

The problems described above must also teach our government, once again, to respect and unconditionally abide by law.

Oleksandr Banchuk, Center for Political and Legal Reforms, writing for Ukrainska Pravda

Наступна новина 8 february 2016