Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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Vol.39 N° 69
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
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Vol. 39, Nº 69 (Julio - Diciembre) 2021, 164-181
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
The police competence to ensure the
rights and freedoms of citizens in
modern society
DOI: https://doi.org/10.46398/cuestpol.3969.09
Andrii Kubaienko *
Ivan Okhrimenko **
Olena Kryzhanovska ***
Iryna Kislitsyna ****
Maksym Hryshchenko *****
Abstract
The aim of the study is to form a systematic approach to
understanding and resolving a set of tasks of police activities
that guarantee the rights and freedoms of citizens in modern
society. It was concluded that the most typical negligence in this
area includes violations of the rights and freedoms of citizens
such as the installation of administrative actions against them without any
sign of the crime, incorrect characterization of administrative infractions,
the violation of the procedural order of administrative detention, cases of
unjustied detention without preparation of reports, as well as exceeding
the legal deadlines for administrative detention. Particular attention was
paid to the set of means of appeal in proceedings concerning administrative
oences, which may be referred to as the institution of the protection of
citizens’ rights and freedoms. Common European approaches to the
legal regulation of policing and the inuence of European Union law and
decisions of the European Court of Human Rights on the guarantee of
human rights and freedoms in policing were analyzed.
* Candidate in Law, Associate Professor, Associate Professor of the Department of Judicial, Law
Enforcement Authorities and Advocacy, National University “Odessa Law Academy”, Odessa, Ukraine.
ORCID ID: https://orcid.org/0000-0002-6648-9764. Email: vz070779@gmail.com
** Doctor in Law, Professor, Professor of the Department of Legal Psychology, National Academy
of Internal Aairs, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-8813-5107. Email:
ivango07@ukr.net
*** Candidate in Law, Associate Professor, Lecturer of the Department of Police Administrative Activity,
Odessa State University of Internal Aairs, Odessa, Ukraine. ORCID ID: https://orcid.org/0000-
0002-3423-6682. Email: kuganovska82@ukr.net
**** Candidate in Law, Associate Professor of the Department of Judicial, Law Enforcement Authorities
and Advocacy, National University “Odessa Law Academy”, Odessa, Ukraine. ORCID ID: https://orcid.
org/0000-0002-7215-0791. Email: kislitsina.ira@gmail.com
***** Candidate in Law, Senior Research Fellow, Leading Inspector of the Nemyshlyany District
Department of the Probation Center Branch of the State Institution in the Kharkiv Region, Kharkiv,
Ukraine. ORCID ID: https://orcid.org/0000-0002-6516-671Х. Email: maxik_top@ukr.net
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Keywords: administrative law; human rights; rule of law; police;
protection of citizens’ rights.
Competencia de la policía para garantizar los derechos
y libertades de los ciudadanos en la sociedad moderna
Resumen
El objetivo del estudio es formar un enfoque sistemático para comprender
y resolver un conjunto de tareas de las actividades policiales que garantizan
los derechos y libertades de los ciudadanos en la sociedad moderna. Se
concluyó que las negligencias más típicas en esta área incluyen violaciones
a los derechos y libertades de los ciudadanos como la instauración de
acciones administrativas contra ellos sin ningún signo del delito, tipicación
incorrecta de las infracciones administrativas, la violación del orden
procesal de detención administrativa, casos de detención injusticada sin
elaboración de informes, así como por sobrepasar los plazos legales de
detención administrativa. Se prestó especial atención al conjunto de medios
de apelación en los procedimientos sobre infracciones administrativas,
que pueden denominarse la institución de la protección de los derechos y
libertades de los ciudadanos. Se analizaron los enfoques europeos comunes
a la regulación jurídica de la actividad policial y la inuencia de la legislación
de la Unión Europea y las decisiones del Tribunal Europeo de Derechos
Humanos sobre la garantía de los derechos humanos y las libertades en las
actividades policiales.
Palabras clave: derecho administrativo; derechos humanos; imperio
de la ley; policía; protección de los derechos de los
ciudadanos.
Introduction
Ensuring human rights and freedoms is a complex task of the state and
all its agencies, the content of the public authorities and administration
activities, which requires signicant nancial, material, organizational,
legal, scientic, and human resources. This necessitates the scientic
development not only of a general model of ensuring human rights and
freedoms but also of modifying the activities of individual state structures.
Therefore, special attention should be paid to the police activities, vested
with broad opportunities and powers in the public sphere. Without
maintaining the rights and freedoms of citizens, the activities of public
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Hryshchenko
The police competence to ensure the rights and freedoms of citizens in modern society
authorities and administration, in general, and the police, in particular, do
not have any practical signicance.
To date, the main legal documents dening the rights and freedoms have
been adopted, the relevant standards, which are mainly universal, have
been established. However, the compliance with the relevant principles and
norms, in particular in law enforcement police activities, is partially reduced
in almost all countries owing to some contradictions arising in the process
of practical implementation. Thus, the application of legal norms is a legal
practice. The validity of the legal decisions is checked by practice through
the law requirements; therefore, the law, and ultimately, the practice are
the criteria for the correctness of law enforcement acts.
Administrative and legal regulation of ensuring the citizens’ rights and
freedoms in the police activities are associated with many entities, each of
which has its own competence. It must be established that the activities of
all subjects involved in the mechanism of ensuring the citizens’ rights and
freedoms in the police administrative activities are important and the law
enforcement process demonstrates their eciency. The current problems
of ensuring and maintaining the citizens’ rights and freedoms in police
activities are related to the law enforcement activities of the National Police.
An important problem of police activities in modern society is the
trust of citizens, as well as their involvement in the eld of public order
and safety. Despite the fact that this problem has been the subject of
scientic analysis, current realities and challenges make us re-evaluate the
possibilities of police activities in terms of ensuring the citizens’ rights and
freedoms to formulate proposals concerning the improvement of its legal
and organizational foundations on this basis.
1. Theoretical framework
The analysis of scientic publications shows that a signicant
contribution to the development of the theory of administrative and legal
mechanism for ensuring the citizens’ rights and freedoms, determining
the police competence to ensure the rights and freedoms of citizens in
administrative, jurisdictional and permit-based registration activities
was presented by Dodin (1985), Gorbunova (2017),), Martynenko (2019),
Shoptenko (2017).
The police aspect of ensuring the citizens’ rights and freedoms and the
legal regulation of police activities to ensure the rights and freedoms of
citizens are also presented in the works of such scholars as Aleksandrov,
Okhrimenko and Drozd (2017); Bondarenko and Yesimov (2019);
Bondarenko (2020); Dorosh and Ivasechko (2017); Fedorenko (2020);
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Kryvolapchuk (2020); Okhrimenko (2020); Shmidt-Assmann (2009);
Shvets (2020); Yatsenko (2015).
The analysis of foreign scientic research, such as Birzu (2017); Breetzke,
Polaschek and Curtis-Ham (2019); Bufkin (2004); Hoggett (2019); Jones et
al. (2011); Mack (1969); Mendel et al. (2017); Schoeman (2002); Zeigler-
Hill (2017) established that signicant changes in modern approaches
to police activities necessitate further research on the outlined issues,
especially in the content of the police competence to ensure the citizens’
rights and freedoms in major areas of professional activity.
Thus, the aim of the study is to form a systematic approach to
understanding and solving a set of tasks of the police activities to ensure
the rights and freedoms of citizens in modern society. The objectives of the
research are to assess the state of modern police activities to ensure the
rights and freedoms of citizens, as well as to identify areas for improvement.
2. Methodology
The methodological basis of the study was the involvement of systematic
and activity approaches, which allowed determining the state of the
administrative and legal protection of the citizens’ rights and freedoms in
the police activities, identifying patterns and relationships of its structural
elements, as well as outlining the direction of administrative rules and
institutions to achieve the expected results.
The methods of comparative jurisprudence (during the analysis of
administrative and legal bases of law enforcement activity of various
subjects in the eld of ensuring rights and freedoms of citizens), the
content analysis of documents, publications of scientists on this subject,
formal and logical (for studying legislative and departmental regulations),
structural and functional methods, as well as the elements of sociological,
historical and axiological methods of cognition were used in the work.
These methods allowed identifying the directions and limits of the study,
as well as provided an opportunity to expose the problem, to develop the
doctrine of administrative and legal rights and freedoms of citizens in the
police activities.
The information base of the study consisted of administrative materials
of police agencies, court decisions, statistical information, and the results of
opinion polls, in particular,
- the assessment of the Ukrainian National Police through a public
opinion poll in Kyiv and the regions of Ukraine, conducted from
November to December 2018 by Kharkiv Institute for Social Research
under the scope of a joint project with the Kharkiv Human Rights
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Hryshchenko
The police competence to ensure the rights and freedoms of citizens in modern society
Group “Fight against Tortures, Abusive Treatment, and Lawlessness
in Ukraine”, supported by the European Union (the total sample size
accounted for 19500 respondents) (Summary of the National Report,
2019);
- the report on human rights in the activities of the Ukrainian National
Police (Martynenko, 2019).
3. Results and discussion
The analysis of the current problems of ensuring the citizens’ rights and
freedoms suggests that some of them are conditioned by purely objective
circumstances. Thus, in particular, normative legal documents in this area
outline the ideal model of the citizens’ behavior, as well as the standards
of administrative activity of authorized state bodies (including the police).
Instead, the actual situation happens in a dierent way, specically
when a particular law enforcer has to operate in unfavorable social and
organizational conditions. Such a situation certainly reduces the quality of
ensuring the rights and freedoms of citizens to some extent. In this regard,
it should be noted that even the most important laws often remain a “dead
letter” if there is no mechanism to enforce them.
There is also a problem of a subjective nature, specically when
ineective protection of the rights and freedoms is directly related to the
poor performance of public authorities and administration (Aleksandrov
et al., 2017; Kryvolapchuk, 2020). It concerns also the situations when
ocials do not use the full range of organizational and legal means to
ensure the rights and freedoms of citizens for subjective reasons. This
problem undermines citizens’ condence in state institutions, and reduces
the eciency of law enforcement activities signicantly (Fig. 1).
Figure 1. The eciency of the police in acting on the cases
53,8
54,9
53,5
21,2
15,5
19,1
19,0
16,2
20,2
7,3
10,5
8,7
0,0 10,0 20,0 30,0 40,0 50,0 60,0
The offenders held to
account
The charges brought
The offenders found
%
Completed Not completed Under investigation Do not know
Own elaboration.
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To reduce such cases, it is necessary to improve the law enforcement
process, the quality of the qualication subjects that implement relevant
regulations, especially in cases where it concerns the rights and freedoms
of citizens (Report of the Head of the National Police of Ukraine, 2020).
The bodies of the National Police of Ukraine implement law enforcement
activities in a wide range of issues, each of which is directly related to
ensuring the rights and freedoms of citizens. One of the most meaningful
areas of police work is its administrative and jurisdictional activities, which
ensure the solution of a range of tasks related to the application of measures
of administrative inuence, as well as the protection and defense of human
and civil rights and freedoms. However, the administrative-jurisdictional
activity cannot exist in isolation from other spheres of administrative
work of the police. Moreover, it is logically interconnected with it, while
performing a protective function in the respective mechanism.
Examining the content of administrative and jurisdictional activities
of the police, it should be noted that its structure includes proceedings
on administrative oenses, the application of the various measures of
administrative coercion, and the complaints of citizens. These are the main
administrative proceedings that determine the quality of the considered
activity of the National Police. Thus, there is no doubt that one of the largest
and most meaningful administrative proceedings in the police activities is
administrative oenses.
Performing the set tasks of law enforcement activity, The National
Police agencies implement the main functions: administrative, criminal-
intelligence, criminally-remedial, executive, preventive, and security. Their
legal forms of implementation are conditioned by their immediate purpose,
specied in regulations. Analyzing certain administrative and legal norms,
one should take account of the regulation of applying administrative
penalties and measures to ensure the proceedings on administrative
oenses. However, in our opinion, the potential of statutory and regulatory
provisions of ensuring the citizens’ rights and freedoms are yet to be fully
implemented. The law enforcement practice of the police, in the process
of which the relevant norms are implemented today, is far from optimal
and requires corrective changes to ensure the protection of the rights and
freedoms of both participants in administrative proceedings and other
persons who are under the law directly or indirectly.
Thus, in particular, according to a survey conducted in November-
December, 2018 by Kharkiv Institute for Social Research under the scope
of a joint project with the Kharkiv Human Rights Group “Fight against
Tortures, Abusive Treatment, and Lawlessness in Ukraine”, supported
by the European Union, according to a specially designed sample (a
sample included 878 respondents), using the method of personal (face-
to-face) interviews, it was found that police ocers violated the rights of
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Andrii Kubaienko, Ivan Okhrimenko, Olena Kryzhanovska, Iryna Kislitsyna y Maksym
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The police competence to ensure the rights and freedoms of citizens in modern society
4.6% respondents and their relatives or did not perform their work well
enough during 2018. It should also be noted that 1.7% of the respondents
(326 respondents in a separate sample) stated that they had been victims
of beatings, suering, or tortures by the police ocers. At the same time,
90.7% of persons, who suered violations of their rights or the rights of
their relatives by the police or who noted that the police did not perform
well enough, did not le formal complaints. The main reason for this
behavior is the opinion that it will be a waste of time (51.4%) (Summary of
the National Report, 2019).
According to the report on human rights in the activities of the National
Police of Ukraine for 2019 (Martynenko, 2019), the number of complaints
of violations of the citizens’ rights and freedoms by police and detection of
such violations during targeted activities accounted for 18995. Specically,
14992 of them were not conrmed, 735 – partially conrmed, and 2093 –
conrmed.
The analysis of ocial statistics (Martynenko, 2019) suggests that
police ocers engage in violation of the citizens’ rights and freedoms. In
particular, the most typical neglects in this area include such violations
of the citizens’ rights and freedoms as instituting administrative action
against them without any signs of the oense. There are cases of violation
of procedural order of administrative detention, drawing up protocols
and issuing rulings on administrative oenses without specifying all the
necessary information, in addition, there are cases when the procedural
rights and obligations of the parties to the proceedings on an administrative
oense are not explained, etc.
In addition, signicant violations of the citizens’ rights during
proceedings on administrative oenses may also include incorrect
classication of administrative oenses, the violation of the procedural
order of administrative detention, cases of unjustied detention without
drawing up reports, and exceeding the statutory terms of administrative
detention. There are cases of quite a formal exercise of powers by police
ocers to prove the guilt of persons subjected to administrative liability, to
clarify the circumstances that are fundamentally important for resolving a
particular case. It is also noteworthy that the police often do not question
witnesses, victims, or conduct medical examinations in a designated order
(Fig. 2) (Report of the Head of the National Police of Ukraine, 2020).
All these facts mentioned objectively necessitate the need to improve the
legal and organizational foundation of the administrative and jurisdictional
activities of the police; in addition, the criteria for assessing its eciency
should be changed. In the context of reforming the law enforcement system
on the way to European integration, there is a need to include the provisions
that would provide citizens with additional guarantees to protect their
rights, freedoms and legitimate interests in proceedings on administrative
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oenses in administrative legislation, and to require ocials to grant the
necessary procedural rights to all the participants of these proceedings.
Figure 2. The respondents’ opinion on the need to report on the
oense to the police
34%
26%
23%
10%
2%
5%
Always
In most cases
Depending on the situation
Only if it concerns me and my
close people
Never
Difficult to answer
Own elaboration.
Modern legislation embraces not only the material and procedural
means and grounds for the application of administrative coercion measures
of but it also denes the means of protection that is the institution of
appeal. It should be noted that the set of appeals means in proceedings on
administrative oenses can be called an institution for the protection of the
citizens’ rights and freedoms.
The main laws and regulations, maintaining proceedings on citizens’
complaints in the National Police agencies, have a number of shortcomings
that need to be corrected. Thus, there is a need to review the provisions on
the term for ling a complaint against the actions or inaction of a police
ocer. It results from the fact that after a considerable period of time, it will
be very dicult for the ocials, conducting the inspection, to investigate
all the circumstances of the misconduct and make a sound decision. In
addition, faster ling of a complaint will facilitate faster response to illegal
actions or decisions, their termination and restoration of rights, freedoms
or legitimate interests (Fig. 3) (Report of the Head of the National Police of
Ukraine, 2020).
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The police competence to ensure the rights and freedoms of citizens in modern society
Figure 3. The respondents’ opinion on the need to report on the
oense to the police
33%
27%
21%
7%
14%
Completely dissatisfied
Rather dissatisfied
Rather satisfied
Completely satisfied
Difficult to answer
Own elaboration.
The laws and regulations, maintaining proceedings on citizens’
complaints in the National Police agencies establish quite clearly the main
stages of work with citizens’ appeals in general and with complaints in
particular, however, there are often cases of formal appeals to certain areas
of work. The citizens do not have their legal needs, set out in the complaint,
satised for subjective reasons. There are still cases when the complaint
is considered by a police ocial, whose action (inaction) is actually being
appealed. This state of aairs reduces the law enforcement power of the
legal framework that regulates proceedings on complaints and does not
help protect the citizens’ rights and freedoms.
It should be noted that one of the priorities facing the national law
enforcement system today is the implementation of positive experience
in ensuring the citizens’ rights and freedoms by the police. This requires
attention to the peculiarities of the functioning of the foreign police
agencies, which have already reformed the legal regulation of their activities
taking into account the requirements of the case law of the European Court
of Human Rights, which helped increase the eciency of ensuring the
citizens’ rights by the police.
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The main task of European Union law is the protection of human rights,
which is conrmed by a constituent act binding on all member states – the
Charter of Fundamental Rights of the European Union of 7 December 2000
(European Union Charter of Fundamental Rights, 2000). In addition to the
rights that become classic in science and practice, this document species
in detail a number of human rights that are directly related to the activities
of the police agencies. Among them, in particular, is the prohibition
of tortures (Art. 4); the respect for private and family life (Art. 6), the
protection of personal data (Art. 7); the right of access to documents (Art.
42), a number of rights in the eld of justice that are partially exercised in
administrative proceedings (the right to an eective appeal and access to
an impartial trial (Art. 47), the presumption of innocence and the right to a
defense) (Art. 48), the principles of proportionality in determining crimes
and punishments (Art. 49), etc.
Today, the European legislative body is concerned about ensuring the
rights and freedoms of citizens in police activities, as evidenced by the
cooperation of the police of the European Union member states within the
Schengen Information System, Europol, and other structures (Dorosh and
Ivasechko, 2017).
The Convention on the Establishment of Europol of 26 July 1995
addresses the issue of ensuring the rights of citizens within the activities of
this supranational body: the protection of personal data (Art. 14), access to
personal information stored in the Europol information system (Art. 19),
the person’s right to correct one’s personal information stored in the system
(Art. 20), etc. (Reshenie, 2009).
European Union law contains general rules concerning the protection
of the citizens’ rights in the activities of public authorities and relevant acts
concerning the protection of citizens’ rights in the process of interaction
between the police authorities of the member states. Nevertheless, the
amount of normative material in the eld of ensuring the citizens’ rights in
the police activities at the level of European Union law is insignicant, as
the competence on these issues remains at the national level (Bondarenko
and Yesimov, 2019).
The situation is dierent in terms of the law of the Council of Europe,
which, owing to the binding jurisdiction of the European Court of Human
Rights (ECtHR), made it possible to apply international legal obligations
under the national legal system even in the eld of police activities.
In addition to the case law of the ECtHR, which is one of the factors
changing the national legal system in matters of ensuring the citizens’ rights
in the police activities, there is also the law of the Council of Europe, which
concerns the protection of human rights in police activities. Moreover, it
applies not only to the police activities of European countries but it is also
important for Ukraine as a member of the Council of Europe.
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Despite its recommendatory nature, the European Code of Police
Ethics, developed by the Committee of Ministers of the Council of Europe,
is a very substantial act of the Council of Europe. The act establishes the
general principles of the police activities and ensuring the citizens’ rights.
This act denes the concept of the police activities (para. 1); the principle
of legitimacy in the police activities (para. 2-6); the place of the police in
the structure of public authorities (para. 7-11); the organizational bases of
police activities, including training of personnel, the rights of police ocers
(para. 12-34); the guidelines for police activities related to searches, arrests,
investigations (para. 35-58); the control over police actions (para. 59-63);
the international legal cooperation of police bodies (para. 64-66) (European
Code of Police Ethics. Recommendation, 2001).
It should be noted that the case law of the European Court of Human
Rights is extremely important for the regulation of ensuring the citizens’
rights and freedoms in the activities of the European Union police. The
text of the Convention underwent some changes concerning case law.
Thus, the interpretation of Art. 6 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms by the European
Court of Human Rights made it possible to apply the requirements of a
fair trial, which were initially used only in judicial proceedings, to the
activities of police bodies. The application of the principles of justice in the
administrative and law enforcement activities of the police uses modern
trends in law-making of any member state of the European Union that
allows ensuring the fundamental rights and freedoms of citizens in the
activities of the police.
Certain administrative proceedings (in particular, the proceedings on
administrative oenses) came to be considered by the European Court of
Human Rights as criminal rather than administrative proceedings that led
to the need to implement special judicial grants of the rights for persons
involved in these proceedings. The European Court of Human Rights
recognized conscation of a driver’s license as an administrative penalty;
administrative penalties in the form of forfeits and nes imposed on
citizens in the eld of tax legislation; administrative penalties applied by the
bodies responsible for enforcing the sentences of people deprived of their
liberty; administrative sanctions imposed by customs authorities in terms
of proceedings on oenses in the customs sphere as the administrative
proceedings of national legal systems. The jurisdiction of the European
Court of Human Rights (Case of “Gradinger v. Austria”, 1995) shows that
administrative proceedings (the proceedings on administrative oenses,
the certain types of licensing activities of the European countries’ police
agencies) are types of court proceedings, applying the requirements of
the Art. 6 of the Convention on the Protection of Human Rights and
Fundamental Freedoms of 1950, therefore, they concern the basic rights
and freedoms of citizens.
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Concerning the autonomy and lateral interpretation of the Convention on
the Protection of Human Rights and Fundamental Freedoms, the European
Commission of Human Rights enabled the European Court of Human
Rights to impose the liabilities for applying judicial procedural guarantees
of human rights in administrative proceedings on the European Council
member states. The specic examples can be found in the legislative acts
regulating the interrelationships among the administration and citizens.
For instance, familiarization with the duties of the French administration in
terms of interaction with citizens denes clear signs of applying procedural
mechanisms of the judiciary in the administrative law, in particular, the
requirements of the transparency of the administrative proceedings, which
simulate the analogic principle of the judiciary, the publicity principle.
It can be stated that the citizens’ right to correct the information
concerning them is the right of defense. The French legislature created
the requirements for the data interchange among the administration and
citizens within the administrative proceedings that is a copy of the judicial
adversarial principle. The other examples of the French administrative
proceedings also indicate that at the present stage of the administrative law
development, following the principles of the foreign judiciary systems is a
common phenomenon aimed at increasing the guarantees of citizens’ rights
in the activities of police bodies.
Germany has a similar experience. The criteria for performing public
administration form “normative guidelines of public administrative
activity”, aimed at the correctness of the denition that goes beyond
legitimacy: equality, responsibility, eciency, transparency, acceptability,
etc. They are the guarantees of the rationality of the public administration
activity. Regarding the development history, they are enriched by the idea of
law and the experience of general considerations of justice and practicality,
which the practice of substantiation of other legal systems denes more
clearly (Shmidt-Assmann, 2009).
Therefore, having implemented the requirements of the case law of
the European Court of Human Rights for applying the basic jurisdictional
principles within the administration activities into the administrative and
legal regulation of the police activities, the legislation of some European
countries contributed to the increase in the level of the citizens’ rights in
the police activities.
We cannot but agree with the professor Ye. Dodin (1985) that the
administrative and jurisdictional activities are an integral part of the
administrative activity of the internal aairs agencies and, correspondingly,
they have the same features. Besides, administrative and jurisdictional
activities have some peculiarities dening them as a separate kind of
administrative activity.
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If one classies jurisdictional activity of the National Police of Ukraine
by such criteria as character, peculiarities, and the complexity grade of
the questions of fact of administrative oenses and the complexity of the
jurisdictional procedure related to it (that is its volume and borders), the
idea of O. Gorbunova (2017) should be taken into consideration to classify
the administrative and jurisdictional proceedings in the National Police of
Ukraine in the following way: a) general (complete) proceeding; b) summary
(speedy) proceeding; c) complex (expanded) proceeding; d) proceedings
of the authorities of the second instance (i. e. a higher-ranking ocial,
in comparison to the employee who considered the materials of the
administrative case initially).
The proceedings on the citizens’ complaints are one of the major ways of
protecting the citizens’ rights, freedoms, and legal interests from any illegal
actions by police ocers. The basis for initiating such proceedings is ling
a complaint of the rights violation and the requirement to restore them and
punish the guilty employees to the head of the police agency or unit.
We cannot but agree with S. Shoptenko (2017) on the relevance of
setting the standards concerning the fact that a complaint of the ocials’
actions or inaction violating the rights or freedoms of citizens, or limiting
their realization, can be led to the agency or a high-ranking ocial within
a month from the date of their commission. At the same time, it is necessary
to enshrine the right of the head of the police body to extend this period if
there are signicant reasons for missing it.
Besides, the provisions on responding to the complaint need to be
supplemented. The law provides that a written or oral response is sent to a
person (at his/her request). However, the person’s preference for the form
of the response is not specied anywhere. In eect, a written response is
usually provided for written complaints, and an oral response – for oral
complaints if the complaint does not require lengthy detailed consideration.
In the latter case, the response can be given in both forms. Such an order
should be enshrined in law. In addition, it is necessary to determine the
procedure for responding to the electronic complaint and its form.
To remedy the situation, in our opinion, it is necessary to create
public commissions to deal with citizens’ complaints. These commissions
could work with citizens’ requests challenging the actions or inaction of
police ocials. The human rights activists could also be engaged in such
commissions, as well as various civil society institutions that are interested
in the relevant work. This approach will eliminate corporate solidarity in
dealing with complaints; improve the quality of work with citizens’ requests.
All this will help protect the rights and freedoms of citizens in the eld of
police activities, it will also increase the responsibility of police ocials, in
addition, it can contribute to the level of legitimacy and discipline in the
system of the National Police of Ukraine.
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O. Yatsenko’s (2015) remark about the imperfection of providing
administrative services by police units, which arises on the basis of
numerous gaps and legal conicts in the legislation, is relevant. Thus,
according to Art. 178 of the Civil Code of Ukraine, weapons and other items
covered by the authorization system are classied as objects restricted in
civil circulation. Instead, according to para.13, part 2, Art. 2 of the Law of
Ukraine “On Administrative Services” of 06 September 2012, its eect does
not extend to the relationship of rights acquisition in respect of the objects
restricted in civil circulation.
Therefore, the shortcomings of the current regulations lead to the
ambiguity in the rearms circulation that is a prerequisite for violations in
this area and results in the increased rates of crimes with the use of weapons.
In addition to the analyzed shortcomings, a number of questions about
the legitimacy of the establishment of the list of documents required for
providing these services, deadlines for re-registration of weapons, related
costs, etc. by the departmental regulations of the Ministry of Internal
Aairs of Ukraine. It is important to note that Ukraine remains the only
European country where the issue of the rearms purchase, possession,
employment, and the control of rearms circulation is not regulated by law.
This fact is a signicant shortcoming in the sphere of legal regulation of the
authorization system, which leads to a violation of the rights and freedoms
of citizens in the registration and permitting activities.
The development of legal regulation of police activities in terms of
ensuring human and civil rights and freedoms in the European Union is a
natural consequence of the competition of divergent interests of the state and
civil society, expressed in the formation of a complex system, the elements
of which along with state legal law act, supplement, correct, and sometimes
actually replace its forms of non-state social law (primarily, customary,
corporate and municipal law). The European legislation included the
requirements of the case law of the European Court of Human Rights on
applying basic principles of justice within the administration activities in
the administrative and legal regulation of police activities, which helped
to increase the protection of citizens’ rights in the police activities. The
interaction between the European Court of Human Rights and national
judicial jurisdictions is conditioned by the essence of the process and its
values developed by the historical development of the right to a fair trial,
which, in turn, has not been granted by the European Convention on Human
Rights, but has originated in national jurisdictions in an evolutionary way
long before the adoption of the Convention. To date, it is enshrined as a
universally recognized principle of international law, while remaining the
national law at the law enforcement level.
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The police competence to ensure the rights and freedoms of citizens in modern society
Conclusions
The conducted analysis states that the administrative and jurisdictional
activity of the police is performed by means of the material and procedural
forms established by the law. Ensuring the rights of citizens by the police
is carried out through the use of various methods. These methods relate
to the quality of the administrative activities of the police, therefore, their
improvement directly aects the eciency of the administrative and
jurisdictional activity of the police in the eld of ensuring and protecting
the rights of citizens.
The activities of the police, which are carried out in the administrative
and legal sphere, are grounded on certain basic requirements that do not
allow going beyond the established limits. The basic regulations also largely
determine the quality of the public authorities’ work that ensures the
citizens’ rights and freedoms. Such basic prescriptions are the principles
of legal regulation, which determine the eciency of the administrative
and jurisdictional activities of the police in the eld of ensuring the rights
and freedoms of citizens. Thus, the administrative activity of the police is
based on principles, each of which plays its role in its organization and in
ensuring the rights and freedoms of citizens. Improving the eciency of the
administrative activities of the police is possible through the comprehensive
implementation of these principles, which in the future will be reected in
positive results in the eld of protection of the citizens’ rights and freedoms.
On the basis of the results obtained, it should be noted that the national
administrative legislation in the eld of arms tracking and private
detective work is not established rmly that does not allow using the
power of the National Police completely to ensure the rights and freedoms
of citizens in these areas of public relations. The analysis of the foreign
practice of administrative and legal regulation of this area gives grounds to
argue that there is a need to enshrine such areas of human rights advocacy
of the police as control over compliance with the authorization system
and security activities, as well as the formation of appropriate functional,
organizational, personnel and nancial basics of exercising such powers.
It should be noted that improving the eciency of the police activities in
the eld of ensuring the citizens’ rights and freedoms is possible through the
improvement of legislation and, in particular, through the implementation
of the case law of the European Court of Human Rights.
The development of police interaction with public associations and other
civil society institutions can be a promising way to improve the protection
of citizens’ rights and freedoms in the police activities. The highest
priority should be the rejection of the established quantitative indicators
in the work of the police. We should stop chasing the number of reports
on administrative oenses, the number of detained for various oenses,
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comparing the available indicators with the same period last year, etc. New
criteria for the police evaluation are needed. It should be emphasized that
such an approach generally contributes to the falsication of reporting, the
substitution of facts, misleading both the country’s leadership and citizens
about the real level of law enforcement.
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Esta revista fue editada en formato digital y publicada
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