It’s music to the ear when the head of the Ministry of Internal Affairs [MIA] says that under the present government, the work of the police is aimed in the first instance at defending human rights, and that there can be no justification for uncovering any crimes, even the most serious, by violating those rights.  He says that to prevent human rights abuse even the criteria for evaluating police work have been changed.

 

The Minister did indeed, on 25 May 2010, sign Order No. 197 which approved a new System of Evaluation for the work of the police. According to Item 6.2 of this System, the criterion for assessing the efficiency of the work of the police is a positive rate of increase in the number of identified violations as set out in Article 130 of the Code of Administrative Offences [CAO] (driving in a state of inebriation).  That means that the work of a traffic police unit can only receive a positive assessment if for the current reporting period more such offences were uncovered than during the previous one.

 

One would not suggest that it’s not necessary to fight drunken driving moreover the State is obliged to ensure people’s safety on the roods. However that needs to be with unfailing observance of human rights, guaranteed by domestic and international legislation, including the following articles of the Constitution: Article 19 (no one shall be forced to do what is not envisaged by legislation); 28 (Everyone has the right to respect of his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. No person shall be subjected to medical, scientific or other experiments without his or her free consent.) and 29 (Every person has the right to freedom and personal inviolability).  We should not forget that the traffic police must also act only on the bass, with the powers and in the manner envisaged by the Constitution and laws of Ukraine.

 

Yet what do they do in reality and how can this be reconciled with the statements of the Minister?

 

Legislation envisages prosecution for driving under the influence of alcohol, drugs or other intoxicating substances. Signs of intoxication are defined by the relevant instructions from the Ministry of Health and MIA, and these signs are grounds for carrying out a check. The grounds for drawing up a protocol regarding such an offence are confirmation of the person’s state of intoxication through a check according to established procedure or the refusal by the driver to undergo such a check. It should be noted that a check carried out with infringements of the established procedure is deemed invalid (Article 266 § 5 of the CAO) and the results may not used in drawing up the relevant protocol on drunk driving.

 

The procedure in detail: the check where somebody is suspected of being under the influence of alcohol, drunks, etc, must be carried out by a traffic police officer in the presence of two witnesses at the place where the person was stopped, using a special technical device (Article 266 § 2 of the CAO).  Only if the driver disagrees with the result of the check, carried out according to established procedure, or does not agree to it being made, is it permitted at the wish of the driver (but under no circumstances forcibly!) to carry out a check in a medical establishment ((Article 266 § 2 of the CAO).

There are thus four cases, according to legislation, where it can be legitimate to draw up a protocol on driving in a state of intoxication.

 

1. Where a check carried out by a traffic police officer at the place where the person was stopped in the presence of two witnesses, using a special technical device establishes that the person was in a state of intoxication and the person agrees with this result;

2.  Where a check carried out by a traffic police officer at the place where the person was stopped in the presence of two witnesses, using a special technical device establishes that the person was in a state of intoxication but the person does not agree and asks for another check in a medical establishment which results in the assessment being confirmed.

3.  The driver is asked by a traffic police officer at the place where the person was stopped in the presence of two witnesses to undergo a check using a special technical device, but the driver does not agree and expresses the wish to have the check carried out in a medical establishment. This results in the person being confirmed as being in a state of intoxication.

4.  The driver is asked by a traffic police officer at the place where the person was stopped in the presence of two witnesses to undergo a check using a special technical device, but the driver does not agree and refuses to have a check carried out in a medical establishment

This list is exhaustive and there are no other grounds for the lawful drawing up of a protocol. Note that each of the grounds must involve the use or offer to use a special technical device. In other words the law requires that each time a protocol on driving in a state of intoxication is drawn up, the traffic police officer must have a special technical device to carry out the relevant check. A protocol drawn up without this special technical device is in breach of the norms of procedural law and prosecution in such cases would violate a whole range of human rights.

 

The situation with such special technical devices

 

Partial procurement of such devices has only now been begun. At present there is no talk of providing traffic police units with such special technical devices to carry out checks.

 

So do traffic police maybe not draw up such protocols due to the lack of special technical devices? Or only about driving in a state of inebriation where there are alcohol testers (according to unofficial data only around 300 of these have been bought for all traffic police units)?  Not at all.  If we are to believe the upbeat reports from the heads of regional traffic police officers on official Internet websites, just in the first half of this year there were around 300 thousand such protocols.

 

Remember too that according to the new MIA Order, there needs to be positive growth in this figure.

The results of talks on condition of anonymity with traffic police officers fill one with horror, the kinds of tricks and violations they resort to in order to get this growth. They provoke drives to refuse a check; they force them to go to a medical establishment; numerous types of overt falsification. Otherwise they can’t draw up a protocol due to current legislation and the lack of special technical devices. The demands from the MIA are strict – if you don’t make the figures, you don’t suit the position you hold. First of all, his majesty the statistical findings, with the law and human rights somehow not worthy of consideration.

 

It is not only individual traffic police officers who resort to violations of the Constitution, laws and human rights, but whole Ministries. As we noted, the check as to whether a person is under the influence of alcohol, drugs etc should be carried out with the use of special technical devices by a police officer in the presence of two witnesses, and a check carried out with infringements of this article is considered invalid. The Cabinet of Ministers through its Resolution from 17 December 2008 No. 1103 instructed the MIA and Ministry of Health to bring their normative legal acts into line with their resolution. Instead the two ministries approved through a joint Order Instructions which in violation of the Law allow them to send a person to a medical establishment without carrying out a check at the place with the use of special technical devices where there are signs that the person may be under the influence of alcohol, drugs, etc.

 

This is how they brought it into line? It is clear that this is to avoid problems with purchasing the special technical devices.  And the traffic police officers follow this Instruction, systematically violating human rights, guaranteed by the Constitution and norms of international law.

One thus has a situation where:

 

The Minister makes an official statement about the work of the police being aimed at protecting human rights and about the inadmissibility of uncovering any crime through the use of violations;

There is a departmental decision which without creating the necessary legal and material conditions sets the ground for systematic violation of the law and inevitable human rights violations;

The departmental decision is carried out without creation of these conditions and leads to a serious deterioration in observance of human rights in police work.

 

Cheap populism, profanation or own mockery of human rights and the law?