How to challenge a formal investigation

The experience of the “Donetsk Memorial” public reception office shows that one of the problems for persons who have been beaten by police officers during detention is the procedure for conducting an investigation (internal inquiry) into the victim’s complaint and informing them of the results of such an investigation.
This procedure usually looks as follows: after being beaten by a police officer, a person files a complaint, based on which an internal investigation is conducted (usually, if it is conducted at all). Subsequently, the applicant receives a notice (if they receive one at all) that the investigation has been completed and no violations have been found.
Such notices from the police (and from the prosecutor’s office) do not contain any specific evidence regarding the content of the investigation (inquiry), as a result of which it is impossible to evaluate the quality and thoroughness of the check. It is difficult to ascertain what exactly was checked, who was interviewed, what these interviewees (usually the police officers accused of the beating) said, and how the facts gathered were evaluated by the investigating official (if they were evaluated at all). It is absolutely impossible to form an impression of the thoroughness of the investigation based on short, template responses that contain no information about the content of the check. It is precisely this circumstance that significantly complicates the challenging of investigation results.
At the same time, there are quite specific requirements for conducting internal investigations. The procedure for conducting such investigations is defined by the “Instruction on the procedure for conducting internal investigations in the bodies of the Ministry of Internal Affairs of Ukraine.” This document is an internal departmental act, but access to it is not restricted.
“Donetsk Memorial” has posted the full text of this Instruction on the “Prison Portal” website. It can be very useful when challenging the results of internal investigations conducted by the police. After all, as a rule, all formal investigations violate one or another requirement of this Instruction.
Let us list the most typical violations.
Thus, according to § 2 of this Instruction, “An internal investigation must promote the observance of the rule of law, the eradication of instances of its violation, and the education of personnel of the internal affairs bodies in the spirit of precise and unconditional observance of current legislation.”
If the investigation is conducted formally, in violation of this Instruction, the requirements of § 2 can hardly be met. Therefore, there are grounds for challenging the investigation results.
It is worth noting that according to § 7: “Grounds for conducting an internal investigation are:
7.1. Statements, complaints, and letters from citizens.
7.2. Reports from state bodies, public organisations, television, radio, and other mass media.”
This means that a complaint from a citizen or an appeal from a public organisation about the unlawful actions of police officers is sufficient for an investigation to be conducted. It is important in this regard that the complaint or appeal be registered with the police, so it is worth sending them by registered letter with a list of attachments and notification of delivery, or submitting them personally at the police station with a mandatory mark on a second copy of the appeal by the police officer who accepted the complaint, indicating their surname and personal signature.
It will not be superfluous to remember that according to § 13.2 of the Instruction, “An official conducting an internal investigation has the right... to conduct simultaneous interviews of persons in whose explanations there are significant contradictions about the circumstances of the violation. A simultaneous interview is conducted with the consent of the persons being interviewed, and a report is drawn up regarding its conduct.”
It is important for the applicant to find out whether the investigating official suggested that the police officers undergo simultaneous interviews? If not, why? If so, and they refused, are there reports to that effect? If not, why? If so, why did they refuse such an interview? Failure to conduct such an interview, if the applicant believes there are grounds for it, must be properly evaluated by the investigator and, in any case, can be an element of challenging the results of the investigation as incomplete.
According to § 14 of the Instruction, “An official conducting an internal investigation is obliged to:
14.2. Observe the rights and interests of the applicant provided by law...
14.3. Explain to applicants... their rights, ensure the exercise of these rights within their competence, and resolve statements and petitions during the investigation and upon its completion.
14.6. Inform... the applicant about the consequences of the investigation and the measures taken on behalf of the head who ordered the internal investigation.”
Failure to comply with these requirements, in particular, informing the applicant (the police must explain why they were not informed) about the consequences of the investigation, can also be grounds for declaring the investigation improperly conducted and, therefore, challenging its results.
It is worth considering that
“16. A person who has suffered moral, physical, or material damage due to a violation committed by an employee of the internal affairs bodies (the victim) has the right during the conduct of an internal investigation to give oral or written explanations, provide evidence, file petitions and challenges, submit complaints against the actions of the person conducting the internal investigation, as well as against the decision taken based on the results of the investigation.”
The applicant must be informed of these rights before the investigation begins, and the fact of their being informed must be recorded in writing. The experience of the “Donetsk Memorial” reception office shows that the police almost never do this, which also gives grounds for challenging the results of the investigation as having been made in a biased and non-objective manner.
We suggest that aggrieved citizens, when challenging the results of internal investigations based on their complaints, pay attention to these and other norms of the Instruction, which are often violated during the conduct of internal investigations.
When challenging, it is worth quoting these norms of the Instruction and referring to its requirements. Thereby, one can make the challenge of the results of the investigation into the filed complaint (appeal) more effective and well-argued.

Appendix No. 2
to the Order of the Ministry of Internal Affairs of Ukraine No. 552 of 6 December 1991

INSTRUCTION
on the procedure for conducting internal investigations in the bodies of the Ministry of Internal Affairs of Ukraine

1. This Instruction determines the procedure for conducting internal investigations carried out by the personnel inspection, other units, and officials of the internal affairs bodies regarding cases of emergency events, offences, and other improper actions (hereinafter — violations) committed by rank-and-file and commanding personnel of the internal affairs bodies.
2. The tasks of an internal investigation are a full, objective, and comprehensive study of the circumstances of violations committed by rank-and-file and commanding personnel of the internal affairs bodies (hereinafter — employees of internal affairs bodies), the identification of causes and conditions that contributed to their commission, the identification of those guilty, and ensuring the correct application of existing regulatory acts so that everyone who committed a violation is brought to fair accountability and no innocent person is held accountable.
An internal investigation must promote the observance of the rule of law, the eradication of instances of its violation, and the education of personnel of the internal affairs bodies in the spirit of precise and unconditional observance of current legislation.
3. The conduct of an internal investigation by the personnel inspection may be entrusted exclusively only to the head of the body (minister, chief), their deputy for personnel work, and in the Ministry of Internal Affairs of Ukraine — also to the chief of the personnel department.
The competence of the personnel inspection does not include the conduct of internal investigations regarding workers and employees, military personnel of internal troops, and other units and subunits that are staffed by persons drafted for active military service, as well as regarding investigation and inquiry officers in connection with their procedural activities.
Conducting internal investigations of employees of other services may be entrusted by the head of the internal affairs body or their deputy.
4. Personnel inspections are involved in conducting internal investigations in cases of:
4.1. Violations of the rule of law committed by heads of internal affairs bodies and services of the Ministry of Internal Affairs. Internal troops and other units.
4.2. Road traffic accidents committed by employees of internal affairs bodies, if people died as a result.
4.3. The use of firearms by employees of internal affairs bodies, if there are wounded or dead as a result.
4.4. Commission of crimes by employees of internal affairs bodies, corruption.
4.5. Suicides and the death of employees.
4.6. Injury of employees.
5. In all other cases of violations, internal investigations are conducted by officials of the relevant services of the internal affairs bodies whose employees committed the violation.
6. Officials of internal affairs bodies cannot participate in the conduct of an internal investigation:
if they are victims or eyewitnesses of the given violation;
if they are relatives of the victim, their representative, or the employee of the internal affairs body who committed the violation;
if they are subordinates in the service to the employee who committed the violation;
if they are in friendly or hostile relations with the employees who committed the violation;
if there are other circumstances that may cause a personal interest in the results of the check on the part of the officials to whom it is entrusted.
If the indicated grounds exist, the employee is obliged to apply to the head of the internal affairs body who ordered the internal investigation with a report on being released from participation in the investigation. Until a decision is made by the head, the conduct of the internal investigation is not stopped. In the same order, a challenge may be submitted against the official conducting the internal investigation by the employee of the internal affairs body regarding whom the internal investigation is being conducted, or by the victim.
7. Grounds for conducting an internal investigation are:
7.3. Statements, complaints, and letters from citizens.
7.4. Reports from state bodies, public organisations, television, radio, and other mass media.
7.5. Reports from inquiry bodies, preliminary investigation bodies, the prosecutor, the court.
7.6. Reports from employees of internal affairs bodies about committed or discovered violations.
8. Internal investigations are not conducted based on anonymous reports, statements, and complaints.
9. An internal investigation is conducted within a one-month period from the day the statement, complaint, information, or report about a violation is received by the internal affairs body. In the event that the one-month period ends on a weekend or holiday, the internal investigation must be finished on the first day after the weekend or holiday.
If there are valid reasons, the period for conducting the investigation may be extended by the leadership of the internal affairs body, but for no more than one month.
10. During the conduct of an internal investigation, a full, objective, and comprehensive study shall be made of:
10.1. The event of the violation (time, place, method, and other circumstances).
10.2. The presence of guilt on the part of the internal affairs body employee in committing the violation, the purpose, and motives of the violation.
10.3. Circumstances affecting the degree and nature of the violator’s liability, both mitigating and aggravating their liability.
10.4. Characteristics of the person who committed the violation (attitude towards service, behaviour before the violation).
10.5. Causes and conditions that contributed to the commission of the violation.
10.6. The nature and size of the damage caused by the violation.
11. The conduct of an internal investigation should, as a rule, be preceded by preparation, during which the employee to whom it is entrusted develops a plan, determines the forms and methods of investigation, studies legislation and other regulatory acts, analyses the materials of previous checks, and also collects other necessary information to ensure the comprehensiveness, completeness, and objectivity of the investigation.
12. The heads who ordered the internal investigation, or the chief of the personnel inspection on their behalf, determine the readiness of the employees to carry out the task, approve the plan of the scheduled measures, and control the timeliness and correctness of the actions being carried out, and also have the right to give instructions about the direction and scope of the investigation, entrust it to several persons, transfer materials from one person to another, and personally participate in the conduct of the internal investigation.
Instructions from the head to the employees conducting the internal check on the most important issues that determine the direction and conclusions of the check are given in writing.
Personal responsibility for the completeness, comprehensiveness, and objectivity of the internal investigation rests with the employees who directly conducted it.
13. An official conducting an internal investigation has the right:
13.1. To receive written explanations from employees of internal affairs bodies and citizens.
13.2. To conduct simultaneous interviews of persons in whose explanations there are significant contradictions about the circumstances of the violation. A simultaneous interview is conducted with the consent of the persons being interviewed, and a report is drawn up regarding its conduct.
13.3. To familiarise themselves with relevant documents of internal affairs bodies, and in necessary cases to attach them or their copies to the investigation materials. In other enterprises, organisations, and institutions, familiarisation with documents and the making of copies thereof may be carried out with the permission of their management.
13.4. To receive consultations from specialists on issues that require special training.
13.5. To prepare instructions and requests to other internal affairs bodies for the provision of necessary assistance, information, and clarification of circumstances to be established.
13.6. To travel to the place where the violation was committed. Inspection of the scene of an incident during an internal investigation does not replace and cannot interfere with the inspection of the scene of an incident provided for by the norms of criminal procedure legislation.
14. An official conducting an internal investigation is obliged to:
14.1. Take all lawful measures to establish the circumstances specified in § 10 of this Instruction.
14.2. Comply with the rights and interests provided for by law of the applicant, the person regarding whom the internal investigation is being conducted, and other persons participating in it.
14.3. Explain to applicants and persons regarding whom the internal investigation is being conducted their rights, ensure the exercise of these rights within their competence, and resolve statements and petitions during the investigation and upon its completion.
14.4. Report to the head who ordered the internal investigation about identified shortcomings, violations of laws, orders, and instructions, as well as the causes and conditions that contributed to the commission of violations, with proposals for their elimination.
14.5. In cases where the internal investigation establishes signs of a corpus delicti (elements of a crime) in the actions of the person regarding whom it is being conducted, or in the actions of other persons, immediately report this to the chief and take measures in accordance with the law.
14.6. Inform the managers, personnel of the internal affairs body, the applicant, and other interested persons about the consequences of the investigation and the measures taken on behalf of the head who ordered the internal investigation, while observing the requirements of state and official secrecy.
14.7. Draw up a conclusion based on the results of the internal investigation and submit it for consideration and approval to the head of the internal affairs body or their deputy.
14.8. Familiarise the person regarding whom it was conducted with the approved conclusion of the internal investigation, at the request of the latter, if this does not contradict the requirements of maintaining state or official secrecy.
14.9. Exercise control over the execution of the decision approved by the head of the internal affairs body based on the results of the investigation.
15. The person regarding whom the internal investigation is conducted has the right:
15.1. To give oral and written explanations, file petitions, and provide evidence regarding the essence of the circumstances being investigated.
15.2. To submit challenges against the employee conducting the internal investigation and submit complaints against their actions and decisions. The indicated statements and complaints are submitted to the head who ordered the investigation or to a higher-ranking head, who make a decision on the merits, about which the applicant is informed.
15.3. Upon completion of the internal investigation, to familiarise themselves with the approved conclusion, and with the permission of the head who ordered the internal investigation, with the materials of the check in the part that concerns them, if this does not contradict the requirements regarding the preservation of state and official secrecy.
15.4. To challenge the approved conclusion of the internal investigation in the manner established by the Disciplinary Statute of the internal affairs bodies of Ukraine.
16. A person who has suffered moral, physical, or material damage due to a violation committed by an employee of the internal affairs bodies (the victim) has the right during the conduct of an internal investigation to give oral or written explanations, provide evidence, file petitions and challenges, submit complaints against the actions of the person conducting the internal investigation, as well as against the decision taken based on the results of the investigation.
17. The conclusion based on the results of the internal investigation must indicate:
17.1. The grounds for ordering the internal investigation, the position, rank, and surname of the employee who conducted the internal investigation.
17.2. The position, rank, surname, first name, and patronymic, year of birth, education, duration of service in internal affairs bodies and in the occupied position of the person regarding whom the internal investigation was conducted.
17.3. The essence of the established violation and its consequences, what confirms or excludes the guilt of the employee, circumstances mitigating and aggravating their liability, causes and conditions that contributed to the violation, and measures taken or proposed for their elimination.
17.4. Proposals on the application of a specific type of disciplinary penalty or measure of public influence, the forwarding of materials to investigative bodies, or the termination of the internal investigation.
18. The conclusion based on the results of the internal investigation is signed by the person or persons who directly conducted it. Before the conclusion is approved by the head of the internal affairs body, it is reviewed by: the head whose subordinates conducted the internal investigation and the head of the service whose employee committed the violation. Upon review, the indicated heads express their agreement with the proposed conclusions or disagree with them, about which they make an appropriate note and set out their dissenting opinion with specific proposals in an annex to the conclusion.
The head of the internal affairs body, when approving the conclusion based on the results of the internal investigation, studies the proposals of the persons who conducted the internal investigation, as well as those set out in dissenting opinions, and adopts one of the proposed suggestions or their own, different, decision. If a different decision is adopted in the conclusion based on the results of the internal investigation than that proposed by the persons who carried out the check, the head of the internal affairs body shall make a handwritten entry to that effect when approving the conclusion.
19. In the event of a criminal case being opened against employees of internal affairs bodies, decisions on holding them to disciplinary account are taken only after their guilt or innocence is established in accordance with the law, unless these employees have committed violations for which measures provided for by the Disciplinary Statute of the internal affairs bodies of Ukraine can be applied.
20. The conclusion of the internal investigation is attached to the personal file of the employee who committed the violation, and the materials of the internal investigation are stored in the established order.
21. Copies of conclusions based on the results of internal investigations of emergency events among personnel, provided for in § 4.1–4.5, by the Ministry of Internal Affairs of the Crimean ASSR, regions, Kyiv City, and internal troops shall be sent to the Main Personnel Department of the Ministry of Internal Affairs of Ukraine within five days after their approval. In the event of the conviction of an employee, a copy of the judgment shall also be sent to the Main Personnel Department after it enters into legal force.