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CONCEPT for the reform of law enforcement agencies of Ukraine (criminal justice system) (draft)

   
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Text of the draft Concept, which is currently being hastily discussed by government structures and officials.

MINISTRY OF INTERNAL AFFAIRS OF UKRAINE
NATIONAL ACADEMY OF INTERNAL AFFAIRS

CONCEPT
for the reform of law enforcement agencies of Ukraine (criminal justice system)
(draft)

PREFACE
Law enforcement agencies (the criminal justice system) are key within the system of executive authorities. Their stable and effective functioning is a necessary condition for protecting the constitutional order, ensuring legality and law and order, and upholding the rights and freedoms of humans and citizens. The success of the implementation of national interests and the stability of social development depend to a significant extent on the effectiveness of the activities of law enforcement agencies.
The currently existing model of the law enforcement system in Ukraine does not, by many criteria, meet the growing needs of society and generally recognised international democratic standards in this area. In the near future, this may become an obstacle to the further development of legal relations in economic, social-political, and other spheres of social and state life, and to the formation of a fully-fledged civil society.
Modern changes in the social-economic and political-legal conditions of the functioning of the law enforcement system, and our state's course towards European integration, determine the need to reform the system of law enforcement agencies and adapt it to social needs and the capabilities of the state.
The method of reforming the management apparatus by merely reducing it, which was characteristic of the Soviet era, cannot be considered effective today. First and foremost, a systemic-functional approach is needed, which will make it possible to improve the activities of law enforcement agencies through the optimisation of tasks and functions, structure and numerical strength, as well as financial, material-technical, organisational-legal, and personnel support.
Over the last few years, law enforcement agencies in Ukraine have acquired more and more powers and functions, sometimes completely uncharacteristic of criminal justice bodies. Consequently, a number of laws regulating their activities have been adopted. At the same time, a holistic reform did not take place; instead, overly independent law enforcement "monsters" were formed, whose functions duplicated one another, which led to "unhealthy" competition between them.
The artificially created situation significantly overburdens the state budget and, naturally, leads to corrupt schemes within these bodies. Thus, if we eliminate duplication and clearly delineate the functions of these bodies according to the principle of "internal and external security bodies", establish effective control over their activities—including parliamentary and public oversight—and procedurally codify the operating principles of each of them, this will make it possible to reduce the number of law enforcement officers by half, cut the costs of their maintenance by two and a half times, and use the released funds for the technical re-equipment of these structures, salary increases for staff, etc.
The Concept has laid the foundations for establishing clear accountability for the defined areas of activity for the heads of law enforcement agencies. According to foreign experts, the implementation of the Concept will make it possible to significantly reduce manifestations of corruption both within law enforcement agencies in particular and in the state as a whole.
The proposed Concept provides for the optimisation of the structure of law enforcement agencies through: reforming the structural links of law enforcement agencies in accordance with the Programme of the President of Ukraine V. F. Yanukovych "Ukraine for the People"; clearly defining the tasks and functions of all law enforcement agencies and their structural subdivisions; eliminating duplication and parallelism in the activities of individual law enforcement agencies, as well as the involvement of personnel in performing functions not characteristic of them; determining the optimal and justified staff numbers for services and subdivisions of each law enforcement agency; gradually introducing differentiated standards of staffing and workload depending on the nature of assigned tasks; optimising the workload on employees at all levels of the law enforcement system; and protecting the population and territories from natural and man-made emergencies.
In addition, the measures for reform provided for by the Concept are based on fundamental principles of the functioning of law enforcement agencies established by world practice in accordance with generally recognised international democratic standards, among which the following are of key importance: the priority of legislative regulation of tasks, functions, and the order of activity of law enforcement agencies; the independence of law enforcement agencies from authorities, officials, and political figures within the limits defined by the Constitution and laws of Ukraine; the improvement of the mechanism of internal and judicial control over the activities of law enforcement agencies and their officials, primarily from the perspective of ensuring respect for the individual and justice, as well as the continuous improvement of the effectiveness of their management; strengthening the accountability of law enforcement agencies and their officials for their decisions, actions, or inaction before citizens whose rights have been violated; the introduction of a mechanism for control over the functioning of law enforcement agencies by society through institutions of parliamentary and direct democracy; and the consolidation of the principles of efficiency, openness, and integrity in the activities of law enforcement agencies.
The Concept provides for the reform of the bodies of the Ministry of Internal Affairs of Ukraine, the Security Service of Ukraine, the State Border Guard Service of Ukraine, the State Tax Service of Ukraine, the State Penitentiary Service of Ukraine, the Ministry of Ukraine for Emergencies and for Protection of the Population from the Aftermath of the Chernobyl Catastrophe, the Prosecutor's Office, as well as the comprehensive resolution of tasks for the implementation of state policy in the sphere of maintaining public order, ensuring the safety of citizens, combating crime, protecting borders, and controlling customs and tax duties.

Vice Prime Minister V. L. Sivkovych

SECTION I
GENERAL PROVISIONS
1.1. The Concept for the reform of law enforcement agencies of Ukraine (criminal justice system) (hereinafter — the Concept) is a programme document that establishes the goal, principles, directions, and stages of reforming the system of law enforcement agencies in Ukraine.
1.2. The goal of the Concept is to improve the activities of law enforcement agencies of Ukraine (criminal justice system) (hereinafter — law enforcement agencies) in the conditions of a democratic, law-based state by optimising their tasks and functions, structure and numbers, and financial, material-technical, organisational-legal, and personnel support.
It is proposed to carry out the optimisation of the structure of law enforcement agencies of Ukraine by:
- reforming the structural links of law enforcement agencies in accordance with principles of functioning established by world practice;
- clearly defining the functional duties and powers of all law enforcement agencies and their structural subdivisions;
- eliminating duplication and parallelism in the work of individual law enforcement agencies, as well as the involvement of personnel in performing functions not characteristic of them;
- determining the optimal and justified staff numbers for services and subdivisions of each law enforcement agency;
- gradually introducing differentiated standards of staffing and workload depending on the nature of assigned tasks;
- optimising the workload on employees at all levels of the law enforcement system and eliminating secondary functions that do not affect the final results of work.
1.3. To achieve the goal of reforming law enforcement agencies, a number of tasks must be solved in the process of its implementation:
- the formation of a modern, effective system of law enforcement agencies;
- the introduction of a new ideology for the functioning of the law enforcement system as an activity to ensure the realisation of citizens' rights and freedoms, strengthen democratic institutions, and prevent potential abuses;
- the organisation of service in law enforcement agencies on new principles;
- the creation of a modern system of training and retraining for the law enforcement system;
- the introduction of an effective system of state and public control over the activities of law enforcement agencies.
1.4. The activities of law enforcement agencies must be based on the following principles:
- legality;
- adherence to human and citizen rights and freedoms;
- ensuring the independence of law enforcement agencies from political and other unlawful influence;
- strengthening preventive functions in combating crime;
- interaction with state bodies, local self-government bodies, and public organisations;
- ensuring parliamentary, judicial, and public control over the activities of law enforcement agencies;
- openness and integrity in the activities of law enforcement agencies.

SECTION II
DIRECTIONS AND STAGES OF REFORMING LAW ENFORCEMENT AGENCIES
2.1. The reform of law enforcement agencies must be carried out in the following directions:
- the creation of a regulatory and legal framework that will regulate the activities of law enforcement agencies;
- the formation of institutions and organisational structures of law enforcement agencies;
- personnel support for law enforcement agencies;
- scientific support for the functioning of law enforcement agencies;
- financial and material-technical support for law enforcement agencies.
2.2. In the course of the reform, the following must be carried out:
a) the delineation of the competence of law enforcement agencies and the elimination of the duplication of their powers;
b) the determination of the optimal staff numbers for law enforcement agency employees with a simultaneous increase in the level of their material-technical support;
c) the demilitarisation of the personnel of law enforcement agencies; granting employees the status of civil servants.
2.3. The implementation of the Concept will take place in stages over ten years. It is planned to carry out the reforms in three stages.
At the first stage (2010—2011) — development and adoption of the Programme for the Reform of Law Enforcement Agencies with the definition of specific measures, deadlines for their implementation, and those responsible; adoption of new laws and amendments to existing laws and other regulatory legal acts in accordance with generally recognised international norms and standards.
At the second stage (2012-2015) — carrying out the main institutional transformations.
At the third stage (2015-2020) — regulatory-legal and scientific-methodological support for the functioning of the updated system of law enforcement agencies.

SECTION III
SYSTEM OF LAW ENFORCEMENT AGENCIES
3.1. The system of law enforcement agencies includes: the Ministry of Internal Affairs of Ukraine, the Prosecutor's Office of Ukraine, the National Bureau of Investigations, the State Penitentiary Service of Ukraine, and the National Security Service of Ukraine1.
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The creation of a State Agency for Special Communications and Operational-Technical Activities of Law Enforcement Agencies, with the granting of the right to conduct operative-search measures, is deemed inexpedient for a number of reasons. Firstly, the State Service for Special Communications and Information Protection of Ukraine provides government communications to officials (performs a service function); it has never been a subject of law enforcement activity and lacks the appropriate experience, personnel, and methodological support. Secondly, Art. 5 of the Law of Ukraine "On Operative-Search Activity" allows for the conduct of operative-search activity by eight agencies, and this list requires reduction. The creation of an additional subject of operative-search activity does not correspond to the stated trend. Thirdly, the conduct of operative-search measures (criminal intelligence) and operative-technical measures is not characteristic of the Special Communications Service. These measures are conducted, respectively, by the operative-search and operative-technical units of the Ministry of Internal Affairs of Ukraine and the Security Service of Ukraine. Fourthly, only two of the six types of operative-technical measures are related to the use of communications equipment, which is mostly privately owned.
The creation of a State Committee for Countering Drug Trafficking, Illegal Distribution of Narcotic Substances and Precursors is deemed inexpedient for a number of reasons. Firstly, the proposal to separate the aforementioned State Committee into an independent central body of state administration must be thoroughly substantiated. In our opinion, the separation of a "drug police" from other law enforcement structures, given the alarming trends of a rapid increase in the number of child drug addicts in Ukraine and the dependence of the effectiveness of combating drug crimes on the level of interaction between different police services and units, is not only inexpedient today but also dangerous. Secondly, it is unacceptable to deprive employees of the drug enforcement service of special ranks by granting them the status of civil servants, as they must have the right to conduct operative-search activity and carry weapons.

3.2. As a result of the reforms in Ukraine, the Foreign Intelligence Service of Ukraine, the Security Service of Ukraine, the State Guard Administration, the State Border Guard Service, the Ministry for Emergencies and for Protection of the Population from the Aftermath of the Chernobyl Catastrophe, the tax police of the State Tax Service of Ukraine, and the special units for combating organised crime and corruption of the Security Service of Ukraine are being liquidated.
3.3. The Ministry of Internal Affairs of Ukraine is the main body in the system of central executive authorities that ensures the implementation of state policy in the sphere of law and order and combating crime.
It is subordinate to the Cabinet of Ministers of Ukraine.
The units of the State Border Guard Service (with the formation of a "border police"), the units of the tax police (with their subordination to the Department of the State Service for Combating Economic Crime), and the units of the Ministry for Emergencies and for Protection of the Population from the Aftermath of the Chernobyl Catastrophe (with the formation of the Civil Protection Service) are being transferred to the subordination of the Ministry of Internal Affairs of Ukraine. Within the structure of the Ministry of Internal Affairs of Ukraine, the State Migration Service is being created as a governmental body of state administration on the basis of the State Department for Citizenship, Immigration and Registration of Individuals of the Ministry of Internal Affairs of Ukraine and the State Committee of Ukraine for Nationalities and Migration.
The functions of pre-trial investigation are being excluded from the Ministry's remit (functions of inquiry remain), and their execution is assigned to the National Bureau of Investigations of Ukraine.
The structure of the Ministry of Internal Affairs of Ukraine includes: the State Police Administration, the State Border Police Administration, the State Migration Service Administration, the State Civil Protection Service Administration, and corresponding structural subdivisions in the regions.
The State Police Administration — ensures the personal safety of citizens, the protection of their rights, freedoms, and lawful interests, as well as the interests of legal entities and the state from unlawful encroachments.
The State Border Police Administration — ensures the inviolability of the state border and the protection of the sovereign rights of Ukraine in its exclusive (maritime) economic zone.
The State Administration of the State Migration Service — ensures the implementation of the state's national migration policy.
The State Civil Protection Service Administration — ensures fire safety, prevention of and response to other emergencies of a man-made, natural, and military nature, the liquidation of their consequences, and the protection of the population and territories from their negative impact.
3.4. The Prosecutor's Office of Ukraine is a state body that ensures the execution of functions assigned to it by the Constitution of Ukraine:
- maintaining state prosecution at the stage of pre-trial investigation and in court;
- representing the interests of a citizen or the state in court in cases defined by law;
- oversight of the observance of laws by bodies conducting operative-search activity, inquiry, and pre-trial investigation;
- oversight of the observance of laws during the execution of court decisions in criminal cases, as well as during the application of other measures of a coercive nature related to the restriction of the personal liberty of citizens;
- oversight of the observance of human and citizen rights and freedoms, and the observance of laws on these issues by executive bodies, local self-government bodies, and their officials.
It is subordinate to the President of Ukraine.
The functions of pre-trial investigation (except for cases involving crimes committed by employees of other criminal justice bodies) are being excluded from the remit of the Prosecutor's Office and transferred to the National Bureau of Investigations of Ukraine. The Prosecutor's Office is vested with the function of maintaining prosecution at the pre-trial investigation stage.
The structure of the Prosecutor's Office of Ukraine consists of: the Prosecutor General's Office of Ukraine, the Prosecutor's Offices of the Autonomous Republic of Crimea, regions, the cities of Kyiv and Sevastopol (with the status of regional offices), city, district, inter-district, and other equivalent prosecutor's offices, as well as military prosecutor's offices.
The Prosecutor General's Office of Ukraine — organises the work of the prosecutor's offices and exercises control over their activities.
The Prosecutor's Offices of the Autonomous Republic of Crimea, regions, district and city prosecutor's offices — ensure the implementation of the functions assigned to them in accordance with the Constitution and laws of Ukraine.
3.5. The National Bureau of Investigations of Ukraine is a state body that, in accordance with the legislation of Ukraine, conducts pre-trial investigations in criminal cases, and also carries out information-analytical work for the purpose of identifying and eliminating causes and conditions that contribute to the commission of crimes.
It is subordinate to the President of Ukraine or the Ministry of Justice of Ukraine.
The structure of the National Bureau of Investigations of Ukraine consists of: the Main Directorate of the National Bureau of Investigation of Ukraine (central apparatus), regional investigative directorates (departments) which are formed in the Autonomous Republic of Crimea, regions, the cities of Kyiv and Sevastopol, as well as district investigative departments (units).
3.6. The State Penitentiary Service of Ukraine is a governmental body of state administration that ensures the implementation of state policy in the sphere of the execution of criminal sentences.
It is subordinate to the Ministry of Justice of Ukraine.
The following functions are excluded from the remit of the State Penitentiary Service: conducting operative-search work in pre-trial detention centres and penal institutions; suppression of terrorist acts, mass riots, and group disobedience in pre-trial detention centres and penal institutions. The execution of these functions is assigned to the Ministry of Internal Affairs.
Special educational institutions for convicted minors are being transferred to the sphere of responsibility of the Ministry for Family, Youth and Sports.
The structure of the State Penitentiary Service of Ukraine consists of: the Main Directorate (central apparatus) of the State Penitentiary Service, directorates (departments) of the State Penitentiary Service of the Autonomous Republic of Crimea, regions, and the cities of Kyiv and Sevastopol, and institutions of the State Penitentiary Service in districts, cities of regional subordination, and districts within cities.
The Main Directorate of the State Penitentiary Service — exercises leadership over the bodies of the State Penitentiary Service and control over their activities, personnel selection, methodological guidance of the activities of state enforcement officers, improvement of their professional level, financial and material-technical support for the bodies of the state penitentiary service, considers complaints about actions and inaction of state enforcement officers, organises the execution of decisions in accordance with the law, and provides clarifications and recommendations regarding the execution of decisions by state enforcement officers in the manner established by law.
The directorates (departments) of the State Penitentiary Service of the Autonomous Republic of Crimea, regions, and the cities of Kyiv and Sevastopol — organise the execution of tasks and exercise leadership over the structural subdivisions of the State Enforcement Service in districts, cities (cities of regional significance), and districts within cities, and coordinate and control their activities;
The bodies of the State Penitentiary Service of regional and territorial level are directly subordinate to the State Penitentiary Service as a governmental body of state administration and are not structural subdivisions of the corresponding justice departments.
3.7. The National Security Service of Ukraine is a special-purpose state body that ensures the state security of Ukraine.
It is subordinate to the President of Ukraine.
The Service's activities are focused on special problems of an intelligence and counter-intelligence nature, the protection of the statehood and sovereignty of Ukraine, and participation in the international fight against terrorism.
Within the framework of a certain transition period, the demilitarisation of the Service is being gradually carried out, and the special status of an employee of the National Security Service of Ukraine as a special type of civil service is being legislatively codified, which will ensure reliable social guarantees, incentives, and compensation for existing risks, restrictions, and other peculiarities of this special activity.
Special units for combating corruption and organised crime are being liquidated, with their functions transferred to the Ministry of Internal Affairs of Ukraine.
The structure of the National Security Service of Ukraine consists of: the Foreign Intelligence Service of Ukraine, the Counter-Intelligence Service of Ukraine, the State Guard Service of Ukraine, and the regional bodies and auxiliary units under their control.
The Foreign Intelligence Service of Ukraine — carries out intelligence activities in the political, economic, military-technical, scientific-technical, informational, ecological, and other spheres concerning issues of national and state security of Ukraine.
The Counter-Intelligence Service of Ukraine — carries out counter-intelligence activities aimed at adequate counteraction to real and potential threats to national security that arise or may arise as a result of the intelligence-subversive activities of special bodies of foreign states, non-state intelligence and counter-intelligence structures, organisations, and individuals.
The State Guard Service of Ukraine — carries out organisational-legal, security, operative-search, engineering-technical, and other measures for the purpose of ensuring the normal functioning of state authorities of Ukraine, and the safety of officials and objects defined by law.

SECTION IV
MEANS OF ENSURING THE REFORM OF LAW ENFORCEMENT AGENCIES
4.1. Regulatory-legal support for the reform
For the purpose of clearly delineating the competence, rights, duties, and responsibilities of law enforcement agencies, current acts should be updated and a number of new regulatory-legal acts should be adopted. In particular, it is necessary to:
4.1.1. Make amendments to the Constitution of Ukraine (in particular, to Art. 121 regarding granting the Prosecutor's Office the authority to maintain state prosecution during pre-trial investigation).
4.1.2. Develop draft laws of Ukraine:
"On Criminal Justice Bodies of Ukraine" (in which the system, functional purpose, and legal status of the criminal justice bodies being formed must be defined);
"On Internal Affairs Bodies";
"On the Police";
"On the National Bureau of Investigations";
"On the State Migration Service";
"On Criminal Intelligence";
"On the Status of the Investigator";
"On the Protection of the Rights and Lawful Interests of Victims of Crime";
"On the Order of Service in Law Enforcement Agencies of Ukraine";
"On Private Detective and Security Activity".
4.1.3. Prepare a new version of the laws of Ukraine:
"On the Judiciary";
"On the Status of Judges";
"On Operative-Search Activity";
The Criminal Procedure Code of Ukraine.
4.1.4. Make amendments to the laws of Ukraine:
"On the Prosecutor's Office";
"On the Security Service of Ukraine"; "On the State Border Guard Service"; "On the State Tax Service of Ukraine"; "On the State Border Guard Service"; "On the Foreign Intelligence Service of Ukraine"; "On the Intelligence Agencies of Ukraine"; "On the State Penitentiary Service of Ukraine"; "On the General Structure and Numbers of the Security Service of Ukraine"; "On the General Structure and Numbers of the State Guard Administration of Ukraine";
"On the General Structure and Numbers of the Border Troops of Ukraine";
"On the General Structure and Numbers of the Civil Defence Troops"; "On Civil Service"; "On Combating Corruption";
"On the Organisational-Legal Foundations of Combating Organised Crime";
"On the Bar";
"On Local Self-Government";
The Criminal Code of Ukraine;
The Customs Code of Ukraine.
4.1.5. Make appropriate amendments to departmental regulatory-legal acts.
4.2. Personnel support for the reform
For personnel support for the reform of law enforcement agencies, it is necessary to:
4.2.1. Develop a unified system of professional-qualification requirements for law enforcement agency employees.
4.2.2. Carry out a reform of the system of personnel training in higher educational institutions of law enforcement agencies, in particular, by reducing the total number and re-profiling departmental higher educational institutions.
4.2.3. Significantly increase the number of positions held by civilians who do not have special ranks (primarily in administrative, financial-economic, registration, support units, personnel apparatuses, and non-core departments of departmental educational institutions, etc.).
4.2.4. Develop an effective system of incentives for law enforcement agency employees for the conscientious and qualified performance of professional tasks.
4.2.5. In the system of departmental and postgraduate education, develop a number of training programmes aimed at forming the necessary qualities in law enforcement agency employees: patriotism, duty, morality, and decency.
4.2.6. Develop a mechanism for ensuring the implementation of social protection standards for law enforcement agency employees.
4.3. Scientific support for the reform
4.3.1. Ensuring that departmental scientific research is aimed at solving urgent practical problems in the activities of law enforcement agencies.
4.3.2. Development of an effective mechanism for introducing innovations into law enforcement activity; introduction of the institute of specialists in innovation activity in departmental higher educational institutions.
4.3.3. Introduction of coordination of scientific-research activity of departmental educational institutions and scientific-research establishments of a law enforcement focus, and the introduction of principles of competition and mutual assistance.
4.3.4. Development of innovative methodologies for law enforcement activity at a systemic level; creation of a bank of law enforcement methodologies.
4.3.5. Development of modern methodologies for the objective evaluation of the effectiveness of the activities of law enforcement agencies.
4.4. Financial and material-technical support for the reform
4.4.1. Centralised calculation of financial expenses for carrying out the reform of law enforcement agencies, including expenses for the liquidation, merger, and reorganisation of individual components of said agencies, their material-technical support, etc.
4.4.2. Annual determination of the budget expenditure plan for the implementation of measures to reform law enforcement agencies based on uniform standards of financial and material-technical support (monetary, clothing, food, etc.) for all criminal justice bodies.
4.4.3. Adoption of an appropriate regulatory framework and determination of a unified methodology for calculating the amounts and types of remuneration for attested and civilian staff of law enforcement agencies. Determination of the level of remuneration for all categories of law enforcement agency employees in accordance with a unified tariff scale with a minimum level of remuneration equal to five official minimum wages in Ukraine.
4.4.4. Adoption of appropriate government decisions to increase the social protection of law enforcement agency employees, in particular regarding the provision of an adequate level of their housing and living conditions and medical care, and the introduction of an effective mechanism for the implementation of these decisions.
4.4.5. Formation of priorities for providing law enforcement agencies with the latest means of countering crime based on the use of information, telecommunication, and other high technologies.

SECTION V
CONTROL OF THE REFORM PROCESS OF LAW ENFORCEMENT AGENCIES
Control of the reform process of law enforcement agencies is carried out through:
5.1. The development, based on this Concept, of a Programme for the Reform of Law Enforcement Agencies with the definition of specific measures, deadlines for their implementation, and those responsible.
5.2. Quarterly consideration at meetings of the Cabinet of Ministers of Ukraine of issues regarding the progress of the implementation of programme documents adopted on the basis of this Concept.
5.3. Quarterly consideration at collegiums and meetings of local state administrations with the participation of law enforcement agencies and other interested organisations and institutions of issues regarding the implementation of programme documents adopted on the basis of this Concept.

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