Weekly analysis for March 20 – 26

Draft Law on petitions (№11082) registered in the Verkhovna Rada

Event

The Government’s draft law on petitions (Reg. № 11082) was registered in the Verkhovna Rada of Ukraine. It was prepared by the Ministry of Justice of Ukraine with active participation of civil society, academics, and foreign partners.

This Law is intended to replace the Law of Ukraine “On citizens’ petitions” of 1996 (is currently still in effect) in order to increase the efficiency of the government. However, first and foremost, it is needed to clearly distinguish the subject matter of the new Law of Ukraine “On Administrative Procedure” (hereinafter – the LAP), which recently came into force and provides for broad guarantees for proper resolution of private citizens’ cases.

CPLR’s position 

The CPLR participated in the development of this draft law. The need to adopt a new version of the law on petitions occurred primarily in connection with the entry into force of the LAP on December 15, 2023, which now governs private citizens’ “applications” and “complaints” – that is, individual cases related to the rights and obligations of individuals.

By contrast, the Law on Appeals should leave citizens and businesses the opportunity to participate in public governance by submitting proposals, recommendations, and comments. This includes situations where there is no right to demand something from the authority, although there is a right to appeal and get a reply in accordance with Article 40 of the Constitution of Ukraine. The new law will also address the submission of petitions as a special type of group appeals in Ukraine.

To improve the mechanism of appeals, draft law № 11082, among others, proposes the followings:

– to grant the right for personal appointment by authorized persons of the respective authority – that is, to conduct such personal appointments without the mandate of the head of the authority (since this is usually an inefficient use of time of the heads of ministries and other bodies);

– to provide responses to appeals, as well as the actual signing of these responses by authorized persons in the respective body – again, without the manager’s mandate to sign all responses to all appeals, as this is also an inefficient use of time and inefficient organization of the procedure for processing of “appeals”.

The CPLR supports such provisions, as the procedure for processing appeals under the current Law “On citizens’ appeals” still takes significant public resources, which cannot provide a quality result. This is especially harmful to the authorities that are supposed to formulate policy (ministries, Secretariat of the Cabinet of Ministers, Verkhovna Rada, the Office of the President), but instead spend a lot of time studying specific cases, forwarding them, and monitoring their resolution. Now, such specific cases fall under the scope of the LAP. Other appeals should be processed according to rational procedures: on the one hand, they should not burden the authorities, and on the other hand, they should preserve the opportunity for citizens to inform the authorities about proposals and comments, and to get replies to such appeals.

Therefore, the CPLR supports this version of the draft law № 11082 and is looking forward to its adoption as soon as possible.

The Verkhovna Rada supported in general the strengthening of the effectiveness of functioning of institution of officials charged with stay of individuals detained and taken into custody

Event

On March 21, the Verkhovna Rada supported the draft law “On amendments to the Criminal Procedure Code of Ukraine to strengthen the efficiency of the institution of officials charged with the stay of individuals detained and taken into custody” №9088 of March 9, 2023 as a whole.

The Law amends parts 1 and 2 of Article 212 of the CPC of Ukraine by rewording them and introduces technical amendments to part 3 of Article 212, part 5 of Article 213 and part 7 of Article 298-2 of the Criminal Procedure Code of Ukraine by clarifying the full name of the official charged with a person’s stay and ensuring the observance of the rights of detainees, as well as introducing a prohibition on holding of such positions by investigators and detectives.

CPLR’s assessment

In order to minimize the risks of torture and ill-treatment of detainees, since 2017, Ukraine has been developing the Custody Records system – a British experience of recording all actions regarding a detainee to ensure timely protection of his or her rights and freedoms..

Currently, the system is functioning steadily within the National Police and includes:

1) an inspector (custodial officer) who is responsible for observing the rights of detainees;

2) an electronic system for recording all actions regarding a detained person, which replaces paper logs and minimizes the possibility of data distortion;

3) a system of “smart” video recording to avoid blind spots, manual control of cameras, possible data destruction, etc. Various devices can be used to monitor the safe treatment of a person, including stationary cameras, rotating cameras, lenses with variable focal lengths that support audio recording, etc.;

4) an interview (non-procedural questioning) with a detained person on how the police treated him or her during the detention and whether his or her rights were violated, with recording of health condition and checking for any information that may indicate the unlawful use of force.

As of the end of January 2024, Custody Records is operating in 88 units of the National Police, in 47 of which it was introduced in 2023 (according to the National Police). This process is ongoing; in particular, in February 2024, Temporary Detention Centre № 1 in Chernivtsi was re-equipped to meet the technical requirements for the Custody Records system. Moreover, the system may eventually be expanded to other agencies – currently, the State Criminal Enforcement Service of Ukraine has preparations in progress.

At the same time, to ensure full legal support for this system, it was necessary to eliminate the issue that had existed since the adoption of the CPC of Ukraine in 2012. It provided that the person responsible for detainees should serve in a pre-trial investigation authority (investigative department). In this case, a conflict of interest definitely occurs – such a person is either an investigator or another employee of the pre-trial investigation body who, on the one hand, applies procedural coercion measures against the suspect, primarily by detaining him/her; and, on the other hand, has to check whether there are sufficient grounds for such detention, the quality of ensuring the rights of the detained person, etc. It is impossible to ensure adequate control over the observance of rights and freedoms in such cases, given the lack of impartiality of such an officer of the investigative unit.

Instead, a person responsible for detainees should serve outside this department to ensure impartiality and prevent administrative pressure from the leadership. Currently, custodial officers operate under the Department of the Main Inspection and Human Rights of the National Police and can properly monitor the observance of human rights and freedoms during the detention stage, as they are not directly subordinate to the head of the pre-trial investigation body.

To fix this issue, the draft Law № 9088 of March 9, 2023 on amendments to the Criminal Procedure Code of Ukraine to strengthen the efficiency of the institution of officials charged with the stay of detainees and persons in custody was submitted to the Parliament. The new version of part 1 of Article 212 of the CPC of Ukraine states that “one or more officials responsible for the stay and ensuring the observance of the rights of detainees shall be appointed in the authority, which includes a unit of pre-trial investigation body” – i.e., a person responsible for observing the rights of detainees may be appointed to a position in any unit of the body performing the pre-trial investigation function, and there may be several such persons. At the same time, a direct prohibition is introduced on the appointment of investigators and detectives to such positions – “investigators, detectives, heads of pre-trial investigation bodies, heads of inquiry bodies, other employees of the pre-trial investigation body and operational units may not be charged with the stay and observance of the rights of detainees” (part 2 of Article 212 of the CPC of Ukraine in the new version).

Thus, the adopted law fixes a shortcoming of the legislation and strengthens the institutional support of the work of custody officers in the National Police.