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Deaths in militia (police) custody: what to do?

24.03.11 | Andrew Chernousov, translated by Maria Kolokolova
Deaths in militia (police) custody: what to do?

For the last year the Ministry of Interior of Ukraine became a some sort of record holder: under its jurisdiction more then 50 Ukrainians DIED. Of course not all deaths were caused by militiamen, but in significant number of cases they were involved. Igor Indylo, Myhailo Stadnyk, Dmytro Yashchuk, Olexandr Razumenko this list may be continued, but all these names are combined by one disaster they DIED at militia stations
The death in custody or in militia is extremely serious and irremediable event for which the State is responsible and has relevant obligation to investigate all cases of deaths thoroughly, effectively and promptly. This obligation is stipulated by the Article 2 of the European Convention for Human Rights. But it turns out that our State is unable to investigate effectively such cases, because it has simply NO effective investigative mechanism.
If we will carefully review a response mechanism to deaths in militia custody, we can see that the Prosecutors Office and the senior management of the Ministry of Interior of Ukraine play a key role there. Thus, the Prosecutor or the Militia Headquarters, in case of receiving information about the fact of death at militia charge the Staff Inspection (SI) of the Ministry and/or the Own Security Service (OSS) (internal investigations unit) to check this fact. Inspectors of the and/or officers of the OSS conduct the check using operative-search methods, namely interviews, obtaining documents, surveillance, inter - tapping, observations and others. As a result of such review or investigation, the conclusion with detailed account of facts, evidence, explanation is composed, that confirms or not confirms involvement/non-involvement of militia officers from the corresponding militia agency/establishment to such fact. In most cases the Prosecutors Office receives the conclusion with acquittal of militia actions, by which Prosecutors Office refuses to prosecute a criminal proceeding. At the same time the administration of militia convicts militia officers who had at least some relation to this fact, using means of disciplinary punishment (even dismissal of militia officers!). The duty shift officers, responsible officers from administration, officers, who detained and arrest the victim are punished. This list may be longer or shorter depending on each particular case. Such reaction of militias administration is an indirect proof of those violations, which militia officers permit in case of the death of a person.
As a result, we get the technology according to that an investigation of deaths in militia are being investigated by militia itself, that is inconsistent with the requirements of international obligations, which Ukraine ratified and where its clearly stated that crimes committed by police officers should be investigated by independent agency. Just logically its impossible to investigate facts involving police officials effectively by hands of other police officers.
What to do? We propose to address to experience of developed democracies, for example, United Kingdom. Of course, the British system of police service differs from Ukrainian one, because the first one is decentralized and multilevel. Thus, according to the statistic data of the Independent Advisory Panel on Deaths in Custody (created in interaction of the Ministry of Justice, the Home Office and the Ministry of Health) in 2010 at police custody 3 (!) persons died, in 2009 16, in 2008 18. We may take into account arguments that at British police its possible to detain person maximum for 36 hours and at our detention centers 10 days, that financial support in Great Britain is better etc. But it may take few minutes for person to die, if he/she is deprived of medical care and/or is suffered from unlawful violence. Its necessary to emphasize, that according to the Police and Criminal Evidence Act (an analogue of our Code for Criminal Procedure) police ids responsible for well-being of person, released from police custody in the course of following 24 hours (!). It means that if person left police office and died during 24 hours this fact would be considered as death in police custody and would have relevant consequences.
And now something about the investigation of such facts. Above mentioned Independent Advisory Panel on Deaths in Custody is mostly analytic centre which works on the general prevention of such cases. Special body for investigation deaths and serious injuries in custody created Independent Police Complaints Commission dealing with the most serious complaints and accusations of police misconduct and considers appeals in cases when complainants arent satisfied with results of police investigation. In addition all deaths in police custody, infliction of physical injuries by police officers, cases of race discrimination and corruption are also at the Commissions jurisdiction. The Commission is completely independent and makes its decisions absolutely independently of the police, government and complainants. The Head of the Commission is accountable to the Home Secretary but operationally is independent. The Commission consists of experts of different qualifications: lawyers, former police officers, doctors, HR-specialists etc.
The legislative base for the IPCCs functions is set out in Part 2 of the Police Reform Act. Those that relate to its guardianship powers include:
the IPCCs call-in powers for any allegation of police misconduct
its inspection powers
the ability to produce statutory guidance
the ability to make recommendations and give advice on police complaints arrangements and other matters of police practice from lessons it learns during its work
the obligation to produce reports including annual reports - for the Home Secretary when required
the ability to write other reports, as it sees fit, for the purpose of making recommendations, giving advice and drawing attention to particular issues
the ability to monitor the system by calling for information from police authorities and forces
the right of entry onto - and inspections of - police premises
appointing organisations as gateways for complainants into the system

All the mentioned above is only small review of investigative mechanisms, which will allow to make police complaints consideration much more credible and independent. Of course such system has plenty of defects, but it has the core thing it tends to increase public confidence and reassuring of the citizen that his complaint would be properly treated and results are credible.
Ukraine is not United Kingdom, but it also needs police complaints procedures reforming, among the most serious is the DEATH IN CUSTODY and started by the President of Ukraine reforming of the criminal justice system must reach this vitally important area. And we still hoping for the best and follow implementations and watch them.