Aleksandr Motlyah, Vitalii Shapovalov. Questions of Legal Regulation and Practice of Polygraph Application in Ukraine
Aleksandr Motlyah, Vitalii Shapovalov. Questions of Legal Regulation and Practice of Polygraph Application in Ukraine // APA Magazine. — 2017. — №50,6. — P. 66–74.
Aleksandr Motlyah
doctor of Law, professor, honored jurist of Ukraine,
Ukrainian National Academy of Internal Affairs,
Kiev, Ukraine
Vitalii Shapovalov
polygraph expert, psychologist,
chairman of Ukrainian Polygraph Collegium,
Kiev, Ukraine
Current aspects of legislative basis for using polygraph in Ukraine are analyzed. Practical issues related to qualified training of Ukrainian polygraph examiners, as well as to the activities of public organizations which coordinate and implement methodical processes of applying polygraph in Ukraine are considered.
Key words: polygraph, polygraph examiner, legal regulation, normative legal acts, polygraph practice, public organizations.
History of active polygraph use in Ukraine, in various fields, stretches back more than 20 years. In 1997 Ukrainian diaspora in the United States handed over ten “Axciton” devices supplied with software to Ministry of Internal Affairs (MIA) of Ukraine. The following year, the Ministry made the first attempts to use polygraph in the operative investigation work of Ukrainian law enforcement agencies. Lack of appropriate training and experience in the country forced the law enforcement agencies to seek help from foreign specialists. In 1998, a group of employees of law enforcement agencies attended courses for polygraph examiners at Main department of Internal Affairs of the Krasnodar Territory (Russian Federation). In 1999, five officers from National Academy of Internal Affairs of Ukraine and Lviv Law Institute of MIA of Ukraine studied for two months at the Academy of Forensic Psychophysiology in Largo, Florida, US. After training, polygraph examiners of the National Academy of Internal Affairs of Ukraine repeatedly provided assistance to Ministry of Internal Affairs in carrying out expert psychophysiological studies of subjects suspected of committing crimes. These events served as a starting point for the development of schools, directions and methodology for polygraph use both in law enforcement agencies and in commercial structures.
Over the past 10 years polygraph in Ukraine has become increasingly popular in commercial structures, including banks, insurance companies, agricultural holdings, IT companies, large trading networks, other private and state-owned Ukrainian enterprises.
During polygraph implementation in Ukraine, number of various acts, ordinances and instructions was issued to regulate its application legally. Let us consider the main ones.
1) Order #1dsk of January 26, 2000 of the Main department for fighting organized crime of MIA introduces use of polygraph by human resources department and operative search units fighting organized crime.
2) MIA order No. 743 of August 28, 2001 [1] “On conducting an experiment on use of computer polygraphs by law enforcement agencies” introduces polygraph to law enforcement agencies of Ukraine lifting the restrictions on using the device in operative search. Later on its basis, the Concept for implementation of computer technologies using polygraph into system of the MIA of Ukraine was developed.
3) Act No. 743 of August 28, 2001 was followed by the next order in MIA system of “On further development of the Service of Psychological Support for operative activities of law enforcement agencies of Ukraine” No. 842 of July 28, 2004 [2], registered by Ministry of Justice of Ukraine on October 27, 2004, No. 1365/9964.
4) The above-mentioned ordinances were followed by “Instruction on procedure for using polygraphs (computerized devices for recording psychophysiological reactions of a person)” No. 1373/9972 [3], which greatly expanded possibilities of using polygraph in criminal proceedings in Ukraine. Later, decision of MIA Collegium of Ukraine of July 25, 2008, No. 17 km/1 “Programs for counteracting crimes against the person in 2008-2012” [4] was approved, where clause 4.23 provided for systematic use of polygraph and the results of its work by law enforcement agencies aimed at effective detection of crimes against life and health of the person. Unfortunately, this process stalled because of the political situation in our country.
5) It should also be noted that as of November 1, 2010 National Classifier of Ukraine DK 003: 2010 “Classifier of occupations”, approved by order of State Consumer Committee No. 327 of July 20, 2010, came into effect. In this classifier, under the code 2144.2, a new occupation “Polygraph Expert” was introduced.
6) Another important departmental legal act is order No. 329 of Ministry of Incomes and Fees of Ukraine of August 2, 2013 “On using polygraphs in the activities of Ministry of Incomes and Fees of Ukraine and its territorial bodies” [5], registered by Ministry of Justice of Ukraine on October 11, No. 1748/24280. This order is aimed at improving efficiency of Ministry of Incomes and Fees, preventing and identifying corruption and other offenses, supporting operative activities effectively, as well as improving work with personnel. Based on this order, “Guidelines for using computer polygraphs in work of the Ministry” have been developed.
7) One more crucial order was issued by Ministry of Defense and Armed Forces of Ukraine “On approval of the Instruction on procedure for organizing and conducting polygraph survey of personnel in Ministry of Defense and Armed Forces of Ukraine” [6] No. 164 of April 14, 2015, aimed at improving quality of work with personnel during admission to (renewal of) contract military service, appointment (transfer) of officers by the Minister of Defense of Ukraine, appointment of Ukrainian citizens into civil service or to positions in departments of Ministry of Defense and General Staff of the Ukrainian Armed Forces; as well as at prevention and detection of corruption and other offenses. To accompany this order, instruction “On procedure for organizing and conducting polygraph survey of personnel in Ministry of Defense and Armed Forces of Ukraine” was developed; it was registered as No. 477/26922 by Ministry of Justice of Ukraine on April 29, 2015.
8) Polygraph was also mentioned in Law of Ukraine “On National Police” [7], which came into effect on November 7, 2015. In particular, Part 2 of Art. 50 of this Law defines constitutional requirements for the procedure of polygraph testing for citizens who have expressed a desire to enter service in National Police.
9) On July 27, 2015, Ministry of Justice of Ukraine issued Order No. 1350/5 “On introduction of amendments to the Order No. 53/5 of Ministry of Justice of Ukraine of October 8, 1998” [8], which modified methodological recommendations on preparation and appointment of forensic examinations and expert studies. By this order Ministry of Justice supplemented Section VI “Psychological Expertise” with a new paragraph 6.8: “In order to obtain tentative information, surveys can be conducted using special technical means – computer polygraph.” That is, results obtained using polygraph can be officially used in criminal, civil, administrative, economic and other proceedings, or on request of interested individuals (or legal entities). In connection with the above-mentioned order, number of psychological examinations with the use of polygraph performed both by state and private experts, increased significantly.
10) Initiative group of Ukrainian Polygraph Collegium together with scientists from National Academy of Internal Affairs, MIA of Ukraine developed draft of the Law of Ukraine No. 4094 “On protection of rights of the individuals undergoing polygraph survey (examination)” and submitted it to the Parliament of Ukraine. The main goal of this act was to regulate use of polygraph in the country. Unfortunately, this legal act did not find proper support during discussions in the Parliament Committees and other relevant expert institutions and was rejected with the possibility of revision.
11) In connection with the adoption of law No.794-VIII “On State Bureau of Investigation” of November 12, 2015, Cabinet of Ministers of Ukraine entrusted Ministry of Health to create an interdepartmental working group to develop procedure for organizing and conducting a survey of individuals using polygraph at State Bureau of Investigation. (Order of Ministry of Health of Ukraine № 3.12.-10/12/320-16/ 8288 of April 4, 2016). This group included representatives from Ukrainian Polygraph Collegium. As a result, in the spring of this year Cabinet of Ministers of Ukraine approved procedure developed by the interdepartmental working group.
According to this document, a polygraph study is conducted to obtain tentative information about candidates as to: concealment or distortion of personal data, certain facts of the biography; alcohol or drug abuse; presence of debts or financial obligations. Other topics the procedure also provides for checking on a polygraph are: violations of the law, prior criminal proceedings, involvement in criminal organizations, participation in prohibited public associations, residence permit or citizenship of another country, disclosure of confidential information.
As for the practical side of polygraph use in Ukraine, the following should be noted:
1) Due to fundamental changes in the political life of Ukrainian society, aggravation of political and economic relations with the Russian Federation, anti-terrorist operation in the Donbass, fight against corruption and many other internal and external social processes, use of polygraph in various state institutions and law enforcement agencies is gaining momentum. There is significant increase in number of polygraph examiners in departments of Ministry of Internal Affairs, Security Service of Ukraine (SSU), polygraph examiners also appeared in Ministry of Defense, National Anti-Corruption Bureau, State Border Guard Service of Ukraine, etc.
2) Obviously, increased demand for specialists in polygraph application area raised the issue of qualified training of the personnel. In Ukraine today, the only educational license for training specialists in polygraph testing is available at Academy of SSU, and its primary goal is to meet the needs of operative services of this agency. Still there are private training courses for polygraph testing in our country. Representatives of these courses or schools, as they are called, are committed to different methodological approaches.
3) It should be noted that many polygraph examiners currently working in law enforcement agencies were trained by different private schools. Therefore, there can be significant differences in methodological arsenal and conceptual apparatus used, which inevitably leads to various collisions between polygraph specialists themselves and customers of their services.
4) Such situation partly caused creation of public organizations of polygraph examiners aimed at uniting specialists in the area and developing uniform standards of practice. Yet disagreements of professional nature remained. At the moment, there are two active public organizations in Ukraine: All-Ukrainian Polygraph Association and Ukrainian Polygraph Collegium.
– All-Ukrainian Polygraph Association was registered on November 21, 2014 and for the most part consists of polygraph examiners, who were trained according to original techniques of Ukrainian specialists, as well as on the basis of methodical approach of Russian scientist Valery Varlamov.
– Ukrainian Polygraph Collegium is the first established in Ukraine public organization in the area, which has been operating since October 7, 2013 to the present day. It brings together civilian (private) polygraph examiners from commercial companies, banks and polygraph experts from various domestic military and law enforcement agencies, such as Kiev research institute of forensic examinations, Ministry of Defense, State Fiscal Service, Ministry of Internal Affairs, National Police, National Guard, National Academy of Internal Affairs of MIA of Ukraine and other.
When conducting polygraph tests, members of Ukrainian Polygraph Collegium follow practice standards of the American Polygraph Association (APA) and use valid, scientifically validated testing techniques, which, according to the results of meta-analysis carried out by special APA committee, were recommended as main techniques for conducting polygraph tests.
Since 2013 Ukrainian Polygraph Collegium regularly holds international scientific-practical conferences and seminars devoted to current issues of polygraph application. Polygraph examiners and scientists from USA, Canada, Poland, Slovenia, Azerbaijan, Kazakhstan, Belarus and other countries were invited to participate in these events. Members of the Collegium regularly attend professional development courses, among them seminars of Chuck Slabsky, Nate Gordon, Greg Adams, Donald Krapohl, and 50th Annual APA seminar in Chicago.
Over the past few years, members of the Collegium have prepared number of scientific publications, books, monographs devoted to polygraph and assessment of information reliability, also two issues of “Current problems of theory and practice of using polygraph”, journal established by Coordinating Council of the Collegium, were published.
As we have shown, practice of using polygraph is actively developing in Ukraine both in legislative and scientific area. Authors of this article hope that cooperation and fair competition between public professional organizations, polygraph specialists at state agencies, commercial companies specializing in polygraph tests, will help methodological development and pledge compliance with high ethical and professional standards.
References:
- On conducting an experiment on use of computer polygraphs by law enforcement agencies: Order of MIA No. 743 of 28 August, 2001.
- On further development of the Service of Psychological Support for operative activities of law enforcement agencies of Ukraine: Order of MIA No. 842 of July 28, 2004.
- On procedure for using polygraphs (computerized devices for recording psychophysiological reactions of a person): Instruction of MIA No. 1373/9972 of October 27, 2004
- On announcement of the decision of Collegium of Ministry of Internal Affairs: Order of MIA № 370 of June 31, 2008 Programs for counteracting crimes against life and health of the person in 2008-2012: approved by decision of MIA Collegium No. 17km/1 of July 25, 2008.
- On using polygraphs in the activities of Ministry of Incomes and Fees of Ukraine and its territorial bodies: Order of Ministry of Incomes and Fees of Ukraine № 329 of August 02, 2013.
- On approval of the Instruction on procedure for organizing and conducting polygraph survey of personnel in Ministry of Defense and Armed Forces of Ukraine: Order of Ministry of Defense of Ukraine № 164 of April 14, 2015.
- On National Police: Law of Ukraine № 580-VШ of June 2, 2015.
- On introduction of amendments to the Order No. 53/5 of the Ministry of Justice of Ukraine of October 8, 1998: Order of Ministry of Justice of Ukraine No. 1350/5 of June 27, 2015.