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Міжнародна науково-практична конференція 18.06.20 - СЕКЦІЯ №5
Special means are suppressive measures established in p.1 art 106 of CEC of Ukraine.
Thus, scientists interpret special means as the list of special tools, distinctly determined in normative legal acts of Ukraine, aimed at overcoming counteractions of people serving a sentence in correctional and educational colonies, in the cases established in law [2, p. 21]. Such an approach is based on the analysis results of the system –forming features that make up the content of «special means» term. Scientists interpret «means» as something serving an instrument in any action, affair [1, p. 215], «special» means intended for something; having specific purpose [1, p. 621].
As it is ascertained in the course of the given research, the list of special means applied by SCES personnel to imprisoned convicts is determined by normative legal acts of Ministry of Justice of Ukraine by analogy and on the basis of the resolution of Cabinet of Ministers of Ukraine of December 20, 2017, №1024, that approved the List of special means applied by military men of the National Guard when performing official tasks, which, given requirements of legitimacy principle, enshrined in p.2 art.19 and p.14 art.92 of the Constitution of Ukraine, cannot be considered the right approach in the law-enforcement body practice.
So, it should be admitted that nowadays in Ukraine after approving the resolution of Cabinet of Ministry of Ukraine of December 20, 2017, №1024 [7] and cancelling in connection with it the previous resolution of Cabinet of Ministers of February 27, 1991, №49 «On approving the Rules of applying special means for protecting public order» [3], a legal gap arose in practice, namely: if the content of the previous resolution of Cabinet of Ministers of Ukraine of 2017 is interpreted literally, only the National Guard of Ukraine has the right to apply special means.
However, nowadays our state has more than 20 law-enforcement bodies, that have the right to apply suppressive measures according to the status determined for them in law (National police; SSU; National anti-corruption agency of Ukraine (NACA); State Investigation Agency (SIA); others).
Proceeding from this, it is necessary to change and supplement the title and content of the resolution of the Cabinet of Ministers of December 20, 2017, № 1024, entitling in the following way – «On approving the list and Rules of applying special means by law-enforcement bodies of Ukraine» and also to make changes to its text and supplements, changing the word-combination «military men of the National Guard» into «law-enforcement bodies of Ukraine».
With such an approach and taking into consideration that, according to the requirements of Law of Ukraine «On state protection of court and law-enforcement bodies officials» [4] and Law of Ukraine «On State criminal executive service of Ukraine» [5], SCES personnel belong to the list of law-enforcement bodies, one of legal guarantees and ways of realizing in practice these people’ right to apply physical force, special means, a straitjacket and weapon to imprisoned convicts, established in art.106 of CEC of Ukraine will be formed.
The list of such special means, as it follows from the resolution of the Cabinet of Ministers of December 20, 2017, №1024 [7], includes: 1) rubber and plastic clubs; 2) electroshock devices of contact and contact-remote action; 3) mobility restriction means (chains, nets for binding, etc.); 40 means and devices of restricted access to a certain territory (protective barriers, turnstiles); 5) means of forced stopping transport; 6) service dogs and service horses; 7) means of acoustic and microwave influence; 8) special marking and painting means; 9) devices, grenades and ammunition of light and sound action; 10) means equipped with rubber or similar non-lethal projectiles; 11) mean equipped with tear gas and irritating drugs; 12) devices for shooting special means, indicated in p.8-11 of this list; 13) devices, grenades, ammunition and small-scale blasting devices for destroying obstacles and forced unlocking rooms; 14) means equipped with safe smoke-forming devices; 15) water cannons, armoured vehicles without regular weapons and other special transport means.
Comparing this List with the special means mentioned in art.106 of CEC of Ukraine, and with those applied in criminal executive activity of bodies and PEI personnel, the following discrepancies can be detected:
1. When guarding correctional and educational colonies, also when conducting searches, supervision and other regime measures by SCES personnel, service dogs are widely used, which, apart from this, perform the function of preventing the offences (as a way of intimidation), that are the grounds for applying suppressive measures to imprisoned convicts.
Thus, in 2015 1 thousand 671 service dogs were used in the sphere of punishment execution of Ukraine while their regular number was 1.712 (incompleteness made up 2, 4%) [6, p. 8].
For all that, during the same year service dogs were used in PEI and IIW: performing tasks in guards protecting these institutions (the perimeter blocked by service dogs was 54 thousand 560,8 meters long or 46% of the total perimeter length of all PEI and IIW); protecting some production objects, storehouses with explosive materials; in oncoming, mixed and planned motor-car guards when convicts were removed; conducting general search in the place of life imprisonment; vehicle inspection through check-points; for searching drugs or their analogues during convicts’ luggage, personal articles and rooms inspection.
As a result, in 2015 in PEI and IIW 0,5 litre of alcohol, 150 litres of homemade beer, 80 mobile phones and other forbidden things were confiscated with the help of service dogs [6, p. 8]. 
Besides, in 2015 service dogs helped to arrest 2 convicts who escaped from Sofiia correctional colony No.55 in Zaporizhia region, to uncover 1 murder and expose 2 personal thefts [6, p. 9].
So, service dogs can be classified as special means applied to imprisoned convicts in cases indicated in p.1 art.106 of CEC of Ukraine, making corresponding changes in this Code.
2. According to the requirements of art.105 of CEC and art.6 of Law of Ukraine «On State criminal executive service of Ukraine» for maintaining law and order in correctional and educational colonies special militarized subdivisions of SCES of Ukraine are involved, the provisions and order of their usage are regulated by corresponding normative legal acts of Ministry of Justice of Ukraine, including closed (confidential) ones, which contradicts the requirements of p.14 art.92 of the Constitution of Ukraine, because such an activity must be regulated exclusively by laws.
In this connection Law of Ukraine «On State criminal executive service of Ukraine» should be supplemented with art.19-1 «The order of involving other militarized formations of State criminal executive service of Ukraine in maintaining law and order in colonies» of the following content:
«In cases determined in art.105 of Criminal executive code of Ukraine, for ensuring the regime of particular conditions in correctional and educational colonies forces and measures of special militarized formations of State criminal executive service of Ukraine can be used, the provisions about them are approved by the Cabinet of Ministries of Ukraine.
Applying suppressive measures to imprisoned convicts by the personnel of the indicated subdivisions, established in art. 106 of Criminal executive code of Ukraine, must be realized only on the basis of law and bear personal character of influence of an offender. 
The responsibility for determining this or that suppressive measure and the results of its application are imposed on a particular person of the personnel of State criminal executive service of Ukraine, who is involved in this activity in colonies».
As practice affirms, ensuring law and order in colonies, special militarized subdivisions of SCES of Ukraine arm themselves according to the List approved by Ministry of Justice of Ukraine of December 20, 2017, No.1024 [7], so in this case changes also should be made in CEC of Ukraine. 
Activity results of the mentioned subdivisions of SCES of Ukraine are an additional argument in this connection.
On 01.12.2016 actual number of the personnel of territorial (inter-regional) militarized formations of SCEC of Ukraine made up 156 people, though 196 were needed (incompleteness – 21%) [8, p. 31].
For all that, involving these people in taking special measures, 8 inspections and searches (4 general and 4 spot checks) of residential and industrial area, convicts’ personal belongings, other people and their things, vehicles on the territory of SCES objects were carried out, during which a) 110 gram of drugs; b) 9 litres of alcohol; c) 64 prickly-cutting objects; d) 504 units of forbidden items [8, p. 32].
Besides, the indicated subdivisions of SCES of Ukraine once applied special means and physical force to imprisoned convicts and people taken into custody.
In 2015 the personnel of these militarized formations twice took part in search for convicts who escaped from custody [8, p. 32].
The analysis conducted gives all grounds to ascertain the fact, that the activity of special militarized formations, ensuring particular conditions of regime in correctional and educational colonies, should be regulated at legislative level, including introduction of changes and supplements to art. 106 of CEC of Ukraine, namely: part 1 of this article of the Code should be supplemented with the expression «and also the personnel of other militarized formations of bodies and punishment execution institutions, who is involved in ensuring law and order for introducing the regime of particular conditions in colonies» and say it in the following wording:
«Physical force, special means, a straitjacket, service dogs and other suppressive measures established in law, including weapon, are applied to imprisoned people, if they offer physical resistance to colony personnel, and also to personnel of other militarized formations of bodies and punishment execution institutions, involved in ensuring law and order for introducing the regime of particular conditions on colonies, deliberately don’t comply with its requirements, show riots, take part in mass uprisings, seizure of hostages or commit other violent actions, escape from custody in order to stop illegal actions, and preventing infliction of damage to surrounding or self-injury by these people».
3. As it follows from the content of art.105 and p.6 art.106 of CEC of Ukraine, the officials of the National police of Ukraine are involved in ensuring law and order in correctional and educational colonies in established cases.
But the List of special means they have the right to apply to imprisoned convicts is determined nowadays not on the grounds of above-mentioned resolution of the Cabinet of Ministers of Ukraine of December 20, 2017, №1024, and on the ground of departmental normative legal acts of Ministry of Internal Affairs of Ukraine, which cannot be admitted as lawful activity taking p.14 art.92 of the Constitution of Ukraine into consideration.
So, in all cases analyzed in this work the key problem is, that the Cabinet of Ministers abolishing «old» Rules of applying special means by law-enforcement bodies [3], in new Rules granted the right for such an activity to military men of the National Guard of Ukraine, withdrawing other law-enforcement officers activity from the field of legal regulation, especially those involved in ensuring the regime of particular conditions in colonies.
For eliminating this gap it is necessary to supplement p.1art.106 of CEC of Ukraine with the sentence of the following content:
«The list of special means applied to imprisoned convicts is determined by the Cabinet of Ministries of Ukraine, and the Rules of their application – by this Code, and also other laws regulating law-enforcement body activity».
As far as the Rules of applying special means are concerned, they are also approved by the resolution of the Cabinet of Ministries of Ukraine of December 20, 2017, No.1024 [7], which contain wider content of the provisions determined in art.106 of CEC of Ukraine. 
In this connection it is worthwhile mentioning, that p.2 of this Rules, defining legal grounds of such activity, especially for military men of the National Guard of Ukraine, its developers didn’t say a word about art.106 of CEC, taking into consideration, that these people are involved in ensuring the regime of particular conditions in correctional and educational colonies in the cases, established in law (art.105 of the given Code).
Undoubtedly, the indicated legal gap should also be removed, supplementing p.2 of the Rules with the following word-combination at the end of the sentence «and also art.106 of the Criminal executive code of Ukraine».

References:
1. Velykyj tlumachnyj slovnyk ukrayinskoyi movy / upor. T.V.Kovalova. Kharkiv: Folio, 2005. 767 s.
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3. Pravyla zastosuvannya specialnykh zasobiv pry okhoroni gromadskogo poryadku: zatverdzheni postanovoyu Rady Ministriv URSR vid 27 lyutogo 1991 r. №49. URL: https://zakon.rada.gov. ua/laws/show/49-91-%D0%BF. 
4. Pro derzhavnyj zakhyst pracivnykiv sudu i pravookhoronnykh organiv: Zakon Ukrayiny vid 23.12.1993 r. Vidomosti Verkhovnoyi Rady Ukrayiny. 1994 r. №11. S. 50.
5. Pro Derzhavnu kryminalno-vykonavchu sluzhbu Ukrayiny Zakon Ukrayiny vid 23 chervnya 2005r. Oficijnyj visnyk Ukrayiny. 2005. № 30. S. 4—10.
6. Pro diyalnist pidrozdiliv okhorony, naglyadu i bezpeky kryminalno-vykonavchykh ustanov u 2015 roci: Inform. byuleten. Kyyiv: DPtS Ukrayiny, 2016. Kn. 2. 20 s.
7. Pro zatverdzhennya pereliku ta Pravyl zastosuvannya specialnykh zasobiv vijskovosluzhbovcyamy Nacionalnoyi gvardiyi pid chas vykonannya sluzhbovykh zavdan: postanova Kabinetu Ministriv Ukrayiny vid 20 grudnya 2017 r. № 1024. Oficijnyj visnyk Ukrayiny. 2018. №3. S. 117.
8. Pro stan pravoporyadku, izolyaciyi ta naglyadu, diyalnist pidrozdiliv okhorony, pozhezhnoyi bezpeky ta voyenizovanykh formuvan Derzhavnoyi kryminalno-vykonavchoyi sluzhby Ukrayiny u 2016 roci: Inform. byulet. Kyyiv: Departament DKVS Ministerstva yustyciyi Ukrayiny, 2017. 34 s. 
 

Last Updated (Thursday, 28 May 2020 11:32)

 

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