Expansion of the Police Powers: Pros and Cons
Dmytro Mitriushin, managing partner of LEXLIGA Law Firm
It’s been more than a year since the Law of Ukraine “On the National Police” took full force (on 7 November 2015). The public response to this new institute was mixed, and it remains still unclear whether the police are coping well with their main task of protecting human rights and freedoms, fighting crime, maintaining public security and safety, or the entire reform was just a waste of budgetary funds?
Over the year, the police have happened to be in the thick of multiple scandals, including in the role of a victim. It will just suffice to mention the murder of two police officers in Borshchiv District of Ternopil Region on 22 August, when the crime scene investigation team, with all equipment and gear, responded, being fully aware that there was shooting going on. Or, let’s say, the incident on 25 September in Dnipro, when two policemen were shot down in cold blood by a traffic offender.
These facts have acted as an accelerator for the initiative to expand the powers vested in employees of law enforcement authorities, on the submission of the Ministry of Internal Affairs and the National Police. In particular, the elaborated concept proposes to make amendments to:
1) the Code of Ukraine on Administrative Offences (to provide for harsher punishment for leaving the road accident scene; to extend the term of administrative detention of administrative offenders in cases where committing the relevant administrative offence is punished with administrative arrest, as well as where offenders are impaired by alcohol, drugs, or other substances and may harm themselves or others (up to 24 hours); to abolish the provision requiring two witnesses to be present during intoxication testing of a vehicle driver by a police officer);
2) the Law of Ukraine “On Road Traffic” (to oblige drivers to hand over their documents to law enforcers for review instead of just showing them, as well as to prohibit drivers from getting out of the car without a police officer’s permission);
3) the Law of Ukraine “On the National Police” (to enshrine the continuity concept, i. e. the obligation of law enforcers to respond to crimes, irrespective of the position, location and the time of day; to ensure the right to approach people with “compulsory demands and instructions as to their mode of conduct for the efficient implementation of enforcement efforts”; to provide for additional grounds to stop a vehicle (in suspicion that the driver is impaired by alcohol or affected by medicines); and to improve the system of using the police impact munitions. Specifically, every person is obliged to “unfailingly comply with a police officer’s demands, except where such demands or instructions are manifestly illegal”).
These changes will actually put in place the presumption of probity of police officers, which is officially seen as the guarantee of their safety. In view of the increasing crime rates and disorder on the roads, we could agree with the concept at large. However, certain implicit threats can be seen in some of the proposed changes.
For instance, abolishment of the provision requiring two witnesses to be present at a sobriety test of a driver by a police officer will create serious corruption risks. With the facts of extortion and bribery being still rather common (see http://ukr.segodnya.ua/criminal/gromkie-skandaly-vokrug-policii-vzyatki-i-bandy-736908.html, http: //www.unn.com.ua/uk/news/1598478-dvokh-slidchikh-politsiyi-u-kiyevi-zatrimali-za-khabarnitstvo, http://zaxid.net/news/showNews.do?na_odeshhini_zatrimali_inspektora_politsiyi_za_habarnitstvo&objectId=1398517, http://radiotrek.rv.ua/news/na_rivnenshchyni_politseyskogo_zatrymaly_na_habari_za_dovidky_foto_210826.html), such legislative amendments are bound to raise certain concerns.
In their combination, the changes to the Law “On the National Police” will enable police officers to stop any vehicle, at any time, in any place, without valid reasons to do so, because they are allowed to stop anyone under suspicion that a driver is intoxicated or affected by medicines. This will, to some part, also invite bribery: what can be easier than keeping the right banknote in the documents that you need to actually place in the policemen’s hands for review, rather than just show them. Who wants additional problems? What’s more, this practice will be even more facilitated now in the absence of witnesses, and nothing will then prevent the migration of the said note to the pockets of corrupt policemen. And again, for an ordinary driver, this kind of things has hardly faded way, being ingrained in behaviour patterns through multiple and long-lasting use...
Insufficiently justified is also the idea to extend the administrative detention terms for administrative offenders up to 24 hours. Why keep these persons day and night? What can be achieved by this? Probably, it would be more appropriate to leave the general detention time unchanged, but to distinctly ear-mark those administrative offences that call for a longer detention.
In overall, despite the global trends, such expansion of the police powers is now at least unreasonable. For example, in the USA, almost every week sees a recurrent scandal whipped up through policemen’s unjustified use of firearms, most often leading to shooting and the suspect’s death. And this is despite the police having a number of other munitions in the arsenal, which can be used by police officers to protect themselves and others, without resort to extreme measures. Noteworthy, legal education activities are given a great deal of attention in the USA, and the levels of legal awareness and legal culture of ordinary citizens, including police officers, is much higher there.
Therefore, it is only on the condition of the increased expertise and proficiency of police officers, their guaranteed discipline and good faith, that a relative expansion of powers and a certain presumption of their probity could be put in place.
P.S. Now there is one last question that remains open: is the internal affairs reform going to continue after the resignation of Khatia Dekanoidze on 14 November 2016?