Imposition of disciplinary actions against the employees of Pre-trial detention centres (Germany, Poland, Ukraine)

Introduction

Relevance of the research topic: Imposition of disciplinary actions against employees of pre- trial detention centres, first of all, makes it possible to prevent and stop violations of the rights of temporarily detained persons by the staff of pre-trial detention centres.

Statistics and analytical data on this practice are explicitly enshrined in law, which gives some guarantees to the staff of pre-trial detention centres regarding justified application of disciplinary actions in general.

Imposition of disciplinary actions against the staff of pre-trial detention centres depends on a number of factors, enshrined in legislation and is different in three countries under study because of different legal and regulatory frameworks.

A comprehensive analysis of research, conducted by European and Ukrainian scientists, shows that the practice of imposition of disciplinary actions against employees of pre-trial detention centres is debatable.

As of 2021, Ukrainian legislation contains norms on the imposition of disciplinary actions against employees of pre-trial detention centres, but the study of the practice itself has not been carried out separately. Moreover, there is no legislative organ in Ukraine responsible for the imposition of disciplinary actions against employees of pre- trial detention centres. However, there are some problems in the practice of imposition of disciplinary actions against the employees of pre- trial detention centres in other countries as well.

The object of the study is social relations that shaped up in the process of imposition of disciplinary actions against employees of pre- trial detention centres.

The subject of the study is the practice of imposition of disciplinary actions against the employees of pre-trial detention centres and the conditions of its statutory regulation.

The purpose of this study is the comprehensive analysis of the practice of imposition of disciplinary actions against the employees of pre- trial detention centres in Germany, Poland and Ukraine. Having identified the main statutory provisions on the subject, we have considered this practice and determined whether it is effective to impose disciplinary actions against the employees of pre-trial detention centres.

Thus, the main objectives of the study include: to study the issue of awareness of employees of pre-trial detention centres of the imposition of disciplinary actions; to determine the effectiveness of the laws and regulations on the practical application of disciplinary actions against the employees of pre-trial detention centres; to analyse statistical and analytical information on the application of disciplinary actions against the employees of pre-trial detention centres.

Literature Review

The imposition of disciplinary actions against employees of pre-trial detention centres is regulated by a number of laws and regulations that determine the factors in relation to which analytical and statistical research on this issue is carried out.

This article analyses scientific research of the imposition of disciplinary actions against employees of pre-trial detention centres in Germany, Poland and Ukraine. Thus, it should be noted that in Germany the results of the practice are annually summarized in a report containing disciplinary statistics, which includes the imposition of disciplinary actions against employees of pre-trial detention centres. In addition, we have investigated theoretical research on this issue, which made it possible to investigate the main legal framework regulating disciplinary actions against employees of pre- trial detention centres – the Federal Disciplinary Act of Germany (Federal Ministry of Justice and Consumer Protection of Germany, 2001; Federal Ministry of the Interior, Building and Community of Germany, 2020, 2021).

The basis of the study of imposition of disciplinary actions against employees of pre- trial detention centres was the Information report as of 2020 on the inspection results of detainees’ security, based on which we were able to conduct a comprehensive study of regulation and imposition of disciplinary actions against employees of pre-trial detention centres (Supreme Audit Office of Poland, 2020).

Within the framework of the study, we have analysed the activities of the State Penitentiary Service of Ukraine (PRO (The Effective Regulation Platform), 2021) and the basic laws and regulations that should comprehensively regulate this issue, including the Constitution of Ukraine (The Constitution of Ukraine, 2020), the Criminal Procedure Code of Ukraine (The Code of Criminal Procedure № 4651-VI, 2022), the Laws of Ukraine “On Prosecution” (Law № 1697-VII, 2021), “On Pre-trial Detention” (Law № 3352-XII, 2021), “On Civil Service” (Law № 889-VIII, 2022), “On the High Council of Justice” (Law № 1798-VIII, 2021), Internal regulations of pretrial detention centres of the State Criminal-Executive Service of Ukraine (Order № 1769/5, 2021). We also took into account the Response by the Government of Ukraine to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment during its special visit to Ukraine from 4 to 13 August 2020 (Council of Europe, 2020). That is, each of the above-cited sources helped to reveal in parts the factors influencing the formation of the practice of imposition of disciplinary actions against employees of pre-trial detention centres.

Global peculiarities of incarceration and imprisonment were analysed in the article in order to reveal the problems of imposition of disciplinary actions against employees of pre- trial detention centres. In addition, the study took into account the differences between disciplinary and professional authority (Betriebsdialog, n. d.; Thailand Institute of Justice, 2021) and international standards for practical application of disciplinary actions against employees of pre- trial detention centres, which contained the analysis of this practice in Germany, Poland and Ukraine (Organization for Security and Co- Operation in Europe, 2018).

Methods and Materials

Comprehensive study of imposition of disciplinary actions against employees of pre- trial detention centres in Germany, Poland and Ukraine showed that these countries regulate and impose disciplinary actions in different ways, which is directly reflected in the statistical and analytical data, which provide an opportunity to better assess the importance of this issue.

The study is based on the in-depth analysis of the national legislative framework of Germany, Poland and Ukraine, which reflects a certain balance between the imposition of disciplinary actions against employees of pre-trial detention centres and all possible norms focusing on statutory regulation of disciplinary actions against the employees of pre-trial detention centres. Despite some similarities in the imposition of disciplinary actions against employees of pre-trial detention centres in Germany, Poland and Ukraine, the level of their regulation and effectiveness, reflected in statistical and analytical data, varies considerably.

This analysis was formed on the basis of the relevant official reports, Internet resources of the studied countries and current legal and regulatory framework, so it conforms fully to the comprehensive assessment of the imposition of disciplinary actions against employees of pre- trial detention centres in general.

The study used the methods of sociological analysis for generalization of the international practice in the imposition of disciplinary actions against employees of pre-trial detention centres, as well as for the analysis of empirical, statistical and analytical information, which further made it possible to compare the imposition of disciplinary actions against employees of pre- trial detention centres on the example of Germany, Poland, Ukraine.

Systemic-structural approach and comparative method allowed to study the statutory regulation of imposition of disciplinary actions against employees of pre-trial detention centres and to compare statistical and analytical data.

Logical-semantic and Aristotelian methods of research were used in the study of the effectiveness of legal regulation of the imposition of disciplinary actions against employees of pre-trial detention centres. Based on them, we offered definitions within the scope of the study. The dialectical method was used in considering the problems of research and in determining the main directions in the development of regulation of disciplinary actions against employees of pre-trial detention centres.

The theoretical background of the study were the scientific works of Ukrainian and foreign scientists, the legal framework of foreign countries, statistical and analytical information on this issue.

Results

The imposition of disciplinary actions against employees of pre-trial detention centres is a topical issue. Therefore, we have investigated how the general provisions on the regulation of disciplinary actions against employees of pre- trial detention centres affect the statistics of annual reports, as well as determined their regulatory scope, analysed analytical data on this issue on the example of Germany, Poland and Ukraine.

Thus, in Germany, while the responsibilities of the civil service are set out in the civil service laws of the federal and state governments, the disciplinary law regulates the consequences of misconduct in office and the procedure for their application. The Federal Disciplinary Act refers to federal civil agents, including employees of pre-trial detention centres (Federal Ministry of Justice and Consumer Protection of Germany, 2001).

As soon as any civil servant violates his/her duties, he/she commits an offence, for which disciplinary actions may be imposed. If there is actual evidence of such an offense, the superior, responsible for a particular employee, performing his or her duties in a pre-trial detention centre, is required to initiate disciplinary proceedings and clear up the matter. Upon completion of the disciplinary inquiry, he/she must decide whether the disciplinary proceedings are terminated or whether some disciplinary actions should be taken.

The Federal Disciplinary Act of Germany provides for five types of disciplinary actions, depending on the offense severity, committed by an employee of a pre-trial detention centre: written reprimand; penalty; downgrading or redundancy; official salary downgrade; pension cuts by means of the so-called disciplinary order (Federal Ministry of Justice and Consumer Protection of Germany, 2001).

Notwithstanding the strictness of the law on the imposition of disciplinary penalties and disciplinary actions against the employees of pre- trial detention centres, a disciplinary order that is usually passed as an administrative act may be contested by means of legal remedies, a lawsuit and, under certain conditions, through an appeal to court and retrial.

A manager who is subject to disciplinary liability for other employees is called a superior. The disciplinary manager cares about the development of the individual employee and is responsible for labour matters and industrial law. This includes employee performance review, employee recognition, salary issues, approval of vacation request letters or employment applications, dismissals, warnings, measures, taken in accordance with labour legislation and other contract agreements. One manager should carry out disciplinary management of one employee (Betriebsdialog, n. d).

That is, if the employer judges it expedient to downgrade the employee, dismiss him/her from the civil service or cut his/her pension, he cannot take these measures on his own. To do this, he must submit the so-called disciplinary act on such a penalty to the administrative court of competent jurisdiction. His decision can be challenged in a judicial procedure, and, under certain conditions, the case can be reviewed. Provisions of State disciplinary laws are partly different.

Depending on the circumstances of the individual case, it may become necessary to prohibit further performance of official duties to the employee of a pre-trial detention centre, who is subject to disciplinary actions until the final completion of disciplinary proceedings. The employees of pre-trial detention centres can be subjected to disciplinary proceedings, temporary ban to conduct official business and even temporary discharge according to both disciplinary legislation (Disciplinary Law) and general legislation on civil service.

Temporary discharge can be applied primarily if, after predictive appraisal of the case, disciplinary proceedings are likely to result into dismissal from the civil service. In this case, the part of a monthly salary not exceeding 50% may also be held back depending on financial circumstances.

Thus, having a complete understanding of how the imposition of disciplinary actions is regulated, we can talk about analytical and statistical data on this issue. In 2020, 766 cases of misconduct in office were heard, including the cases concerning the employees of pre-trial detention centres. However, it should be noted that this includes cases, the hearing of which continued for several years and lasted until 2020. The average time for legal proceedings was 13 months, and in the case of a lawsuit 30 months.

The number of investigated disciplinary infractions by the employees of pre-trial detention centres in 2020 increased compared to the previous years. To understand what it’s in reference to, we need to analyse the following data.

Thus, civil servants on probation or the ones, suspended from work, may in certain cases avoid disciplinary actions. For example, if a civil servant committed misconduct in office during probation or suspension, it is necessary to determine whether the civil servant is dismissed in accordance with the provisions of the legislation on civil service.

The employer makes a decision on dismissal due to the seriousness of the offense, but he/she can also give a reprimand, issue a warning, lay a complaint according to § 6 of the Federal Disciplinary Act of Germany. They are not a means of disciplinary actions, but punishment for misconduct exceeding the disciplinary threshold for violating a disciplinary action is not provided by the Federal Disciplinary Act of Germany (Federal Ministry of Justice and Consumer Protection of Germany, 2001).

In 686 cases, there was enough convincing evidence for the announcement of suspicion of misconduct in office to the employees of pre-trial detention centres, where substantiated disciplinary proceedings were instituted under § 17 of the Federal Disciplinary Act of Germany (Federal Ministry of Justice and Consumer Protection of Germany, 2001).

According to § 13 of the Federal Disciplinary Act of Germany, the decision to impose a disciplinary sanction is made on the basis of a mandatory hearing of the case. The disciplinary action depends on the gravity of the offence, personal qualities of the civil servant and the degree of confidence in the civil servant- employee of the pre-trial detention centre (Federal Ministry of Justice and Consumer Protection of Germany, 2001).

In 2020, disciplinary sanctions were imposed in 336 proceedings, 35 of them by a court decision (Federal Ministry of the Interior, Building and Community of Germany, 2021).

Thus, based on the analysis of the imposition of disciplinary actions against employees of pre- trial detention centres, it can be said that in comparison with previous years, the following situation can be traced (see Figure 1).

Figure 1. Dynamics of finalized proceedings and penalties for 2017-2020 There is no separate statistics on the imposition of disciplinary actions against employees of pre- trial detention centres in Germany, but we have found some statistics and analytical data including the regulation of this issue in relation to the employees of pre-trial detention centres (Federal Ministry of the Interior, Building and Community of Germany, 2020).

Having analysed the imposition of disciplinary actions in practice in Germany, we propose to compare it with the existing practice in Poland.

Violation of labour discipline is an act committed by a civil servant (an employee of a pre-trial detention centre) intentionally or unintentionally, smearing the good name of the service or excess of power or dereliction of duty, arising from the provision of the law or orders and instructions, issued by superior agencies. Violations of labour discipline by the employees of pre-trial detention centres include, in particular: dereliction of duties, improper execution of duties or misfeasance, inhuman treatment that assaults dignity of people, deprived of their liberty, misconduct in office or malfeasance in office, defined in legal provisions, abuse of official position by a private person for financial or personal gain (Legislationline, 2001; Supreme Audit Office of Poland, 2020).

From January 1, 2017, to September 30, 2019, the penitentiary service monitored the work of employees of pre-trial detention centres (PRO (The Effective Regulation Platform), 2021). The dynamics can be seen in Figure 2.

Figure 2. Dynamics of disciplinary proceedings against employees of pre-trial detention centres for 2017- 2019.

The dynamics shown in Figure 2 demonstrates that in total 1277 disciplinary proceedings were initiated against civil servants, 137 of which were related to the violation of personal security of prisoners (58 in 2017, 44 in 2018 and 35 in 2019).

Thus, there is an upward trend in the imposition of disciplinary actions in Poland – a decrease in disciplinary proceedings against employees of pre-trial detention centres from 2017 to 2019.

In Ukraine, imposition of disciplinary actions also has a number of features. First of all, the legislation of Ukraine, namely the Law of Ukraine “On Pre-trial Detention”, Article 21 defines that the staff of pretrial detention facilities includes non-management employees and superiors of the State Penitentiary Service of Ukraine and members of the Military Law-Enforcement Service in the Armed Forces of Ukraine, as well as persons working in these institutions under employment agreements. Employees of pre-trial detention centres within the powers granted by the Law of Ukraine “On Pre-trial Detention” and other laws and regulations shall independently make decisions and bear disciplinary or criminal liability for their illegal conduct or the crime of omission, including for dereliction of duty or improper execution of duties provided by this Law and other normative legal acts, as well as for violations of detainees’ rights (Law № 3352-XII, 2021).

In addition, in accordance with Article 130 of the Criminal Procedure Code of Ukraine, the State, paying the damages, caused by the prosecutor or the investigators (employees of pre-trial detention centres), applies the right of recourse to these persons in case of establishing in their actions the elements of the criminal offence by the guilty verdict of the court, which became res judicata, or violation of discipline, regardless of the expiration of the statute of limitations of the crime and the effect of disciplinary action (The Code of Criminal Procedure № 4651-VI, 2022).

Thus, imposition of disciplinary actions against the investigator (employees of pre-trial detention centres) proceeds as can be seen on Figure 3:

Figure 3. The process of bringing an employee of a pre-trial detention centre to disciplinary responsibility

According to Art. 147 of the Labour Code for violation of labour discipline, only reprimand and dismissal can be imposed on an employee, including employees of pre-trial detention centres (Law № 322-VIII, 2021).

Legislation, statutes, and regulations on labour discipline may provide other disciplinary sanctions for other categories of employees. For example, in the civil service system according to Art. 66 of the Law of Ukraine “On Civil Service”, apart from reprimand and dismissal, such disciplinary actions as administrative admonition and notice of misbehaviour may also be applied to civil servants (Law № 889-VIII, 2022).

An important factor in the application of disciplinary actions is that the imposition of disciplinary penalty is the employer’s right, not an obligation. Art. 152 of the Labour Code states that the employer has the right to submit the issue of violation of labour discipline for consideration by the labour collective or its body instead of imposing disciplinary action (Law № 322-VIII, 2021).

It should be added that in Ukraine there is such a body as the Disciplinary Chamber of the High Council of Justice, which is regulated by the Law of Ukraine on the High Council of Justice, responsible for imposing disciplinary actions against judges, but its responsibilities do not include regulating the imposition of disciplinary actions against employees of pre-trial detention centres, thought it appropriate (Law № 1798- VIII, 2021).

Thus, based on the study, we suggest considering Table 1 and analysing the type of punishments that can be applied to employees of pre-trial detention centres, when they are brought to disciplinary responsibility in accordance with current legislation, as these factors allow to create a clear and comprehensive practice of imposition of disciplinary actions against employees of pre-trial detention centres.

Table 1.
Type of disciplinary action depending on the country.

Thus, examining the practice of the imposition of disciplinary actions against employees of pre- trial detention centres in Germany, Poland and Ukraine, it can be noted that despite the fact that each country has clearly defined legislation governing disciplinary liability, including employees of pre-trial detention centres, the analysis of statistics in these countries differs. Thus, according to the results of the study, Germany and Ukraine refer the analysis of the imposition of disciplinary actions against employees of pre-trial detention centres more to the general statistics (i.e. does not allocate clear and separate statistics on this problem), while Poland pays much more attention to this issue. In Ukraine, there is a need to extend the authority of the Disciplinary Chamber of the High Council of Justice, which could practice imposition of disciplinary actions not only against the judges (as it is now), but also against the employees of pre-trial detention centres. In Poland, the in- depth study of activity and compliance with legal and regulatory framework regarding the employees of pre-trial detention centres is carried out, including detailed analysis of statistical data on the number of disciplinary actions, imposed against the employees of pre-trial detention centres, and the frequency of their use. Accordingly, efforts are currently under way to improve the efficiency of the employees of pre- trial detention centres that could help reduce statistics on the disciplinary measures taken against them. However, it should be added that Polish legal framework is not so developed in terms of regulation of disciplinary liability (Legislationline, 2001; Supreme Audit Office of Poland, 2020).

Thus, there is a need to develop statutory regulation of the imposition of disciplinary actions against employees of pre-trial detention centres in Germany and Ukraine, and to monitor the statistics on this issue. Thus, in Ukraine there is a need to identify a body that could oversee the practice of imposition of disciplinary actions against employees of pre-trial detention centres. The study found that in Poland there is a need to improve the legal regulation of disciplinary liability of employees of pre-trial detention centres, which will make it possible to improve statistics on this issue. Thus, in accordance with the findings, they will further identify how effective the legislation is and how effective the work of employees of pre-trial detention centres is in general and improve their work through the analysis of statistics on the imposition of disciplinary actions against employees of pre- trial detention centres.

Discussion

The study of the practice of imposition of disciplinary actions against employees of pre- trial detention centres presented contradictory results. Countries like Germany and Ukraine include the analysis of imposition of disciplinary actions against employees of pre-trial detention centres into general statistics and do not separate them into separate practices, while Poland, on the contrary, provides a detailed review of statistics on the imposition of disciplinary actions against employees of pre-trial detention centres, but does not have a developed legal and regulatory framework for regulating this issue (Legislationline, 2001; Supreme Audit Office of Poland, 2020).

Having reviewed the studies of foreign and Ukrainian scientists, we can agree with allegations that imposition of disciplinary actions against employees of pre-trial detention centres requires constant legislative changes, as the regulation of this issue in the world is constantly changing.

For example, Lutsenko (2017) conducted a study of the judicial practice of bringing civil servants, including employees of pre-trial detention centres, to disciplinary responsibility for disciplinable offenses on the example of a number of countries, including Ukraine and Poland. Lozovoy (2020) in determining the theoretical aspect of disciplinary responsibility, also took into account the practice of bringing the employees of pre-trial detention centres to disciplinary responsibility.

Coyle and Fair (2018) wrote a book on general theoretical and practical provisions relating to the imposition of disciplinary actions against employees of pre-trial detention centres, where they considered working peculiarities of these employees and identified the appropriate disciplinary sanctions.

Crystal (2019) has been researching the imposition of disciplinary actions against civil servants (including the employees of pre-trial detention centres) and bringing them to professional responsibility for many years.

Hayes et al., (2021) have investigated the disciplinary power that oversees the imposition of disciplinary actions against civil servants (including the employees of pre-trial detention centres) and the management of such staff during clarification of the circumstances, which, in fact, influence the determination of the degree of disciplinary responsibility that will be applied to the employee.

The application of disciplinary actions has been studied by such scholars as Marciano and Medema (2018), who considered this issue based on the analysis of legislation and practical experience of foreign countries.

Zhuravel (2021) studying the imposition of disciplinary actions, dwelled on the peculiarities of appeal procedures against decisions on the imposition of disciplinary actions against the employees of pre-trial detention centres.

Koval (2019) in his monograph also covers bringing the employees of pre-trial detention centres to disciplinary responsibility, as well as the conduct of criminal intelligence and surveillance operations.

Conclusion

The study of imposition of disciplinary actions against the employees of pre-trial detention centres is undoubtedly of great importance for each country and for society as a whole. The problem of bringing the employees of pre-trial detention centres to disciplinary responsibility encourages the researchers and scientists not only to theoretically consider this topic, but also to provide their recommendations for improving the practical significance of this study.

Based on the generalization of the practice of imposition of disciplinary actions against the employees of pre-trial detention centres in Germany, Poland and Ukraine, we have considered legal regulations of bringing the employees of pre-trial detention centres to disciplinary responsibility and assessed their effectiveness.

Having analysed the practice of imposition of disciplinary actions against the employees of pre- trial detention centres in Germany, Poland and Ukraine, it should be noted that for Germany and Ukraine there is a need to clearly distinguish statistics on this issue from the general practice. In Ukraine, there is a need to extend the authority of the Disciplinary Chamber of the High Council of Justice in terms of investigating the practice of bringing the employees of pre-trial detention centres to disciplinary responsibility. In Poland, there is a need to improve the legal regulation of the imposition of disciplinary actions against the employees of pre-trial detention centres, which will provide the opportunity for the improvement of statistics on this issue. Thus, compliance with such recommendations will show how effective the legislation is and how effective the work of employees of pre-trial detention centres is in general and will help to improve their work through the analysis of statistics on the imposition of disciplinary actions against employees of pre-trial detention centres (Legislationline, 2001).

The results, obtained during the study, can be used in research work, law-making and human rights activities and in the educational process. For example, research activities provide an opportunity to further continue the theoretical search for the purpose of improving the practice of bringing the employees of pre-trial detention centres to disciplinary responsibility. The results obtained should be used in law-making, as we formulated the proposals to improve in reality the regulation of bringing the employees of pre-trial detention centres to disciplinary responsibility in Poland. Application of the suggestions put forward in law enforcement activities, will make it possible to improve the practice of imposition of disciplinary actions against the employees of pre-trial detention centres and increase its efficiency. Equally important can be the use of this study in the educational process, as the research results can be used in classes at law schools, specialist educational establishments and other educational institutions to study disciplines that involve the questions of the imposition of disciplinary actions against the employees of pre-trial detention centres.