Problems in regulating the activities of mobile groups

The activities of mobile groups monitoring the observance of constitutional human and civil rights and freedoms are, undoubtedly, a crucial manifestation of the openness of the police structure and represent the ability and attempt to achieve positive changes in the functioning of the Ukrainian law enforcement system.

However, in my opinion, practical issues have emerged in the work of mobile groups (hereinafter referred to as 'MGs'), particularly the Crimean group, which cannot and should not be resolved by individual MGs alone. These issues stem from 'grey areas' or ambiguous interpretations of the regulations governing MG activities, and they must be resolved institutionally at the national level. The absence of open discussions on these matters may result in mobile groups—a phenomenon unique to post-Soviet countries in certain respects—becoming a mere formality. Even now, in my view, there is a burgeoning tendency for MGs to work not for results (as there is no unified vision of what such results should be), but for statistics requested by government institutions.

Currently, I believe it is essential to develop amendments and additions to the provisions of the unified Order of the Ministry of Internal Affairs of Ukraine dated 31 August 2006, No. 894, 'On Organizing the Activities of Standing Mobile Groups for Monitoring the Provision of Human and Civil Rights and Freedoms in the Activities of Internal Affairs Bodies' (hereinafter referred to as the 'Order'), which regulates MG activities in Ukraine. Furthermore, work is required on the official interpretation of those provisions of this Order that give rise to ambiguous interpretations.

Changes to the regulatory provisions governing MG activities should address the established practice of monitoring visits and its problematic aspects; therefore, the emergence of these proposals is primarily the result of my practical experience as a member of a mobile group.

1. The coordinator of a mobile group as the person responsible for ensuring the direct activities of the group (in particular, developing visit schedules, coordinating departures with MG members and Internal Security Department staff, printing and signing reports, reporting to Public Councils, and drafting and distributing press releases, etc.).

It should be noted that, according to Clause 1.2 of the Order, it is necessary to 'determine the personal composition of mobile groups, schedules for visiting bodies and subdivisions, and the persons responsible for organizing the activities of mobile groups and resolving other issues regarding their operation at meetings of Public Councils on human rights provision under the Main Directorates of the Ministry of Internal Affairs, regional directorates, and regional transport directorates.'

At the same time, the existence of such a person in the Crimean mobile group sparked fierce discussions among police officials, as well as theorists and practitioners of human rights monitoring in internal affairs bodies. The verdict was as follows: 'According to the Order, the coordination of MG work is entrusted to the heads of the Main Directorates and regional directorates of the Ministry of Internal Affairs of Ukraine in the Autonomous Republic of Crimea, regions, the cities of Kyiv and Sevastopol, and on transport, as well as to the rectors of higher educational institutions of the Ministry of Internal Affairs of Ukraine' (Clause 1.3 of the Order). This provision of the Order clearly contradicts common sense, as the heads of these directorates should in no way be involved in the organizational aspects of MG activities. Furthermore, the conviction held by some colleagues that all organizational functions can be delegated to the Assistants to the Minister of the Regional Control Department of the Ministry of Internal Affairs requires further regulation, both in Order No. 894 and in Ministry of Internal Affairs Order No. 197-2008.

The same applies to the duty currently placed by regulation on the heads of the Main Directorates and regional directorates of the Ministry of Internal Affairs—namely, to 'ensure the involvement of two representatives of non-governmental human rights organizations in the composition of each of them [mobile groups – author].' The mechanism for fulfilling this duty is not defined in the Order; therefore, it is unclear how the heads of these directorates are expected to ensure the presence of two representatives of non-governmental human rights organizations during monitoring visits.

Therefore, I believe it is necessary to supplement the Order on MGs with a provision regarding MG coordinators (or 'persons responsible for organizing the activities of MGs'), in which their powers and duties should be clearly outlined.

2. The issue of the legitimacy of a visit. I believe that the formal criteria for the legitimacy of an MG visit require additional regulation. The Order does not clearly specify the requirements for the composition of an MG, which causes many issues in their practical work. If, for a scheduled visit, two human rights defenders cannot participate, and only one can, or if a representative of the Internal Security Department is unable to attend, is such a visit considered legitimate? The publicly held view is that such visits cannot be considered full-fledged MG visits because, according to Order No. 894, two human rights defenders and a representative of the Department of Internal Security of the Main Directorate for Combating Organized Crime must be involved. Personally, I do not understand why a visit in which only one human rights defender participates—or four (as, nominally, such a visit is also illegitimate)—cannot be considered a full-fledged mobile group visit.

Therefore, I believe it requires further clarification as to in which cases an MG visit is impossible due to the violation of formal requirements regarding the MG composition during the visit.

3. The issue of the participation of Internal Security Department staff in MG visits. According to Clause 3 of Order No. 894, only employees of internal security departments should be involved in MG visits. This provision of the Order, in my view, is contradictory. At the beginning of the Crimean MG’s activities, we had significant problems with the participation of internal security representatives in MG visits. This was due, in particular, to the fact that the internal security service is primarily engaged in operational work, and the head of internal security could not allocate staff from their department for visits due to their high workload. I believe that it is not only, and perhaps not primarily, operational internal security staff who should be involved in MG visits, but rather representatives of the Personnel Inspection, as it is more analytical than operational.

4. The issue concerning the Research Laboratory for Social and Psychological Work in the Internal Affairs Bodies of Ukraine at the Kharkiv National University of Internal Affairs (hereinafter referred to as the 'Laboratory'). The Laboratory appears several times in the Order: in Clauses 1.4, 6.1, 6.2, and Clause 3.5 of the Regulations approved by this Order. The most important function assigned to the Laboratory is 'to organize, based on the monitoring and analysis of detected violations, the development of scientifically sound methodological recommendations for internal affairs bodies and subdivisions regarding the prevention of violations of legality and constitutional human and civil rights and freedoms in their activities' (Clause 6.2).

With the aim of obtaining summaries and methodological recommendations regarding the work of MGs, specifically the Crimean group, in May 2009, I submitted an information request to the Rector of the Kharkiv National University of Internal Affairs, Police Major General Hanna Oleksandrivna Ponomarenko, regarding the results of the work of the Research Laboratory for Social and Psychological Work in the Internal Affairs Bodies of Ukraine at the university, specifically in the direction of summarizing the results of mobile group work and developing scientifically sound methodological recommendations for internal affairs bodies regarding the prevention of violations of legality and constitutional human and civil rights and freedoms in their activities.

According to the response from the Vice-Rector for Scientific Work of the university, Police Colonel A. T. Komziuk, at present, the Laboratory does not perform the functions assigned to it by Order No. 894, as it has been transformed into a research laboratory for personnel, sociological, and psychological support of internal affairs bodies, in connection with which its areas of activity have been partially changed.

The same response reports that, according to the Ministry of Internal Affairs of Ukraine Order No. 15 dated 18 January 2008, a Department for Monitoring Human Rights Observance in the Activities of Internal Affairs Bodies was created within the Ministry, and it is this department that processes the results of mobile group activities in all regions of Ukraine and is intended to perform the functions assigned to the Laboratory by Order No. 894.

It is worth noting that I consider the development of recommendations for internal affairs bodies regarding the prevention of violations of legality and constitutional human and civil rights and freedoms in their activities to be one of the main functions of MGs. There is no doubt that the violation of human rights in internal affairs bodies is a systemic phenomenon, and therefore, solving this problem is possible only by influencing the situation systematically. This systemic influence cannot be achieved without summarizing the results of MG work and developing recommendations based on them, which should then be transformed into an appropriate guiding document (Order, directive).

Since the Laboratory does not engage in developing these recommendations, amendments must be made to the Order to specify the institution that will subsequently be assigned the function of 'developing scientifically sound methodological recommendations for internal affairs bodies and subdivisions regarding the prevention of violations of legality and constitutional human and civil rights and freedoms in their activities' in accordance with the Order. For three years now, this clause of the Order has effectively remained unfulfilled.

5. Consideration of the results of official investigations into facts of violations of citizens' rights and freedoms detected by mobile groups. Recently, there have been many discussions on this issue. My position is that MG members should have access to the results of official investigations into the facts of violations they have detected.

However, I want to dwell on Clause 7 of the Order, which imposes the duty on co-chairs of Public Councils (hereinafter referred to as 'PCs') under the Main Directorates and regional directorates of the Ministry of Internal Affairs on human rights provision to consider the results of official investigations into facts of violations of citizens' rights and freedoms detected by mobile groups at least twice a year. The wording of this provision is quite strange, as it literally means that only PC co-chairs are endowed with the right to consider the results of official investigations, and it is not even specified whether the results should be considered at PC meetings or what the consequences of the co-chairs' consideration of these results might be.

I propose that Clause 7 of the Order be drafted as follows: 'Co-chairs of the Public Council under the Ministry of Internal Affairs of Ukraine on human rights provision and co-chairs of Public Councils under the Main Directorates and regional directorates of the Ministry of Internal Affairs on human rights provision shall submit the consideration of the results of official investigations into facts of violations of citizens' rights and freedoms detected by mobile groups to the meetings of the Public Council at least twice a year.'

6. Powers of MG members. I believe that in the Regulation on Standing Mobile Groups for Monitoring the Provision of Human and Civil Rights and Freedoms in the Activities of Internal Affairs Bodies, which was approved by Order No. 894 (hereinafter referred to as the 'Regulation'), the powers of MG members are outlined very concisely. This 'conciseness' was, in my opinion, caused by excessive caution before the start of active MG work in all regions of Ukraine, but now this caution has lost its relevance. Currently, it is necessary to clarify the powers, rights, and duties of MG members.

First and foremost, it should be noted that I personally do not believe that the powers of MGs should be limited merely to the function of a 'public' statistician for the Ministry of Internal Affairs—that is, an institution that only records some part of reality, perhaps even human rights violations, while analytical work is carried out by department employees without the need for any feedback. Such a position cannot be considered a full realization of the idea of public control, as MGs were created within the Ministry of Internal Affairs system precisely to fulfill the Law of Ukraine 'On Democratic Civilian Control over the Military Organization and Law Enforcement Bodies of the State.' I believe that reducing the role of the public (and public monitors are part of the public) to that of a silent assistant to the police makes no sense, because the police themselves are well aware of the absence of exercise yards in pre-trial detention centres, the inadmissibility of violating the regime of separate detention, the categorical prohibition of torture, and many other things that a mobile group should reflect in its reports. I believe that the purpose of MGs is to be a mechanism of public control. And if we approach the activities of MGs from this standpoint, then my proposals are as follows.

Firstly, the issue of access to the results of official investigations into facts of human rights violations detected by MG members. Guided by my own experience, I can say that MG members should have the right to track the response of the management of the Main Directorates and regional directorates of the Ministry of Internal Affairs to the results of their activities. Feedback is absolutely necessary. This is also a manifestation of the oversight function of MGs (Clause 1.4 of the Regulation). In particular, one of the main functions of MGs is 'the study of causes and conditions that contribute to violations of constitutional human and civil rights and freedoms by employees of internal affairs bodies' (Clause 3.1 of the Regulation). The investigation—or, rather, the non-investigation—of facts of human rights violations detected by MG members during monitoring visits can become, and very often does become, the very 'causes and conditions' that contribute to further human rights violations by internal affairs staff. Therefore, the results of these checks and investigations should also be in the focus of MGs. The Regulation contains a provision which, in my view, provides for the possibility of requesting the results of official investigations: 'In the established manner, to request and receive from internal affairs bodies information and other materials and documents on issues within the competence of mobile groups, observing the requirements of Ukrainian legislation regarding the preservation of state secrets' (Clause 4.4). This provision, I believe, should be detailed.

Secondly, the preparation and distribution of reports. I want to draw attention to Clause 3.3.1 of the Regulation, which states that 'a report is compiled by members of mobile groups and submitted to the Head of the Minister’s Apparatus, the Minister’s Advisor on human rights and gender issues, the heads of the Main Directorates and regional directorates of the Ministry of Internal Affairs, and the Research Laboratory for Social and Psychological Work in the Internal Affairs Bodies of Ukraine at the Kharkiv National University of Internal Affairs within seven days after the monitoring.' In my view, this point is no longer relevant, as sending reports to almost all these recipients is not effective, because, in the first place, the report should be received by the internal affairs body or subdivision that was subject to monitoring, as well as the head of the Main Directorate or regional directorate of the Ministry of Internal Affairs. Also, in my opinion, the report should be provided in electronic form to the Department for Monitoring Human Rights Observance in the Activities of Internal Affairs Bodies.

Thirdly, I believe that the Order should list the documents (logs, registers, etc.) that MG members have the right to inspect (both in the duty unit and in the pre-trial detention centre), but this list should not be exhaustive (Clause 4.3).

The above reflections and proposals regarding problems in regulating MG work are aimed at facilitating the transformation of mobile groups into a full-fledged mechanism of public control over law enforcement bodies in Ukraine, and subsequently, into a National Preventive Mechanism for the prevention of torture. And it would be a great pity if such a good and important undertaking as MGs were limited only to grant-funded work and the publication of statistics.

Olena Lunova, member of the mobile group for monitoring the provision of human and civil rights and freedoms