August 17, 2020
The Ministry of Internal Affairs of Ukraine, in accordance with the Procedure for Public Consultations on the Formation and Implementation of State Policy, approved by the Resolution of the Cabinet of Ministers of Ukraine of November 03, 2010 No. 996, conducted electronic consultations with the public on the draft order of the Ministry of Internal Affairs of Ukraine “On Approval of the Procedure for Safeguarding objects of security police bodies on a contractual basis” (hereinafter referred to as the project), which was published on July 01, 2020 on the official website of the Ministry of Internal Affairs: here .
Information on proposals received during electronic public consultations and on the results of their consideration is given in the table.
|
Nos. |
Offer Information |
Author of the proposal |
Offer Consideration Information |
| 1. | According to the content of numerous regulatory acts, the legal construction of the “order of provision” (civil servants of various state institutions, participants of the Revolution of Dignity of Housing: employees of the relevant categories by means of personal protection in accordance with working conditions; persons with disabilities, etc., provides mainly the procedure for the implementation by legal entities of public law obligations obligations for the provision of material goods (goods, services) to their recipients in accordance with legislative or regulatory acts adopted on their basis, including with the definition of specific types and the amount of material goods, the terms of provision, the cost of determining the type of liability of the obligated legal entity regarding the completeness of the fulfillment of the public-public obligation. There are no such signs in the specified “Order”. Instead, the actual content of the absolute majority of the text of the Procedure is a departmental and legally underdeveloped instruction to a certain official on the procedure for concluding contracts for the protection of objects. | All-Ukrainian Association of Organizations of Employers of the Security Industry “Federation of Security Professionals” | Not taken into account. The Resolution of the Cabinet of Ministers of Ukraine dated November 21, 2018 No. 975 “On Approval of Categories of Objects of State Form of Ownership and Spheres of State Regulation Subject to Protection by Security Police Bodies on a Contractual Basis” (hereinafter referred to as Resolution of the Cabinet of Ministers of Ukraine No. 975) approved categories of objects of state form of ownership and spheres of state regulations that are subject to protection by security police bodies on a contractual basis. In accordance with the second paragraph 3 of the Resolution of the Cabinet of Ministers of Ukraine No. 975, a draft order of the Ministry of Internal Affairs “On approval of the Procedure for ensuring the protection of objects by police bodies of protection on a contractual basis” has been developed (hereinafter - the draft order). The name of the draft order corresponds to its content, since it establishes the procedure for actions and interaction between the security police and the customer during the organization of ensuring the protection of objects of the state form of ownership and spheres of state regulation that are subject to protection by the authorities of the security police on the contractual basis approved by the Resolution of the Cabinet of Ministers No. 975, in particular: - defined the types of protection that are carried out by the security police; - the basis for the provision of security services is determined; - the sequence of actions for the customer is established, which he must take from the conclusion of the contract for the provision of services on security; - a set of organizational measures carried out by the provider of security services related to the conclusion and accompaniment of the relevant contract has been established; - grounds for termination of the provision of protection of objects by security police bodies. It should be noted that the draft order was carried out in compliance with the normative design techniques and normative legal acts of Ukraine regulating the issues of normative activity, in particular: the Law of Ukraine “On the Principles of State Regulatory Policy in the Field of Economic Activity”, Provisions on State Registration of Regulatory Acts of Ministries, other executive bodies approved by the Resolution of the Cabinet of Ministers of Ukraine dated December 28, 1992 No. 731, Procedure for submitting regulatory acts for state registration to the justice bodies and conducting their state registration approved by the order of the Ministry of Justice of Ukraine dated April 12, 2005 No. 34/5. |
| 2. | Comparative content of paragraph 19 of Article 23 of the Law of Ukraine “On the National Police”, the Resolution of the Cabinet of Ministers of Ukraine “On approval of categories of objects of state form of ownership and spheres of state regulation that are subject to protection by security police bodies on a contractual basis” dated November 21, 2018 No. 975 and “Order”, in our opinion book, certifies the consistent exit of the developers of the “Order” beyond the scope and competence of legal regulation. Instead, the Cabinet of Ministers of Ukraine during the edition of November 21, 2018 No. 975 went beyond its competence, namely: In terms of regulating the organization of protection of objects of state property defined by the third part of Article 13 of the Law of Ukraine “On the Management of Objects of State Property” according to the list of authorized parties to legal relations that determine the basis Organization of the protection of objects: “3. Requirements for the organization for the implementation of measures for the protection of objects of state property are determined jointly by the relevant subjects of management and the National Police”: as well as by the scope of legal regulation regarding the “sphere of state regulation”. | All-Ukrainian Association of Organizations of Employers of the Security Industry “Federation of Security Professionals” | Not taken into account. According to paragraph 9 of the Regulation on the Ministry of Internal Affairs of Ukraine, approved by the Resolution of the Cabinet of Ministers of Ukraine dated October 28, 2015 No. 878 (hereinafter referred to as the Regulation), the Ministry of Internal Affairs of Ukraine (hereinafter referred to as the Ministry of Internal Affairs) within the powers provided by law, on the basis of and in implementation of the Constitution and laws of Ukraine, acts of the President of Ukraine and Decisions of the Verkhovna Rada of Ukraine, adopted in accordance with the Constitution and laws of Ukraine, acts of the Cabinet of Ministers of Ukraine, issues orders, carries out organization and control over their implementation. Similar powers of the Ministry of Internal Affairs are enshrined in part one of Article 15 of the Law of Ukraine “On Central Executive Authorities”. At the same time, according to the first subparagraph of paragraph 3 of the Regulation, one of the main tasks of the Ministry of Internal Affairs is to ensure the formation of state policy in the field of protection of human rights and freedoms, interests of society and the state, combating crime, ensuring public security and order, as well as the provision of police services. In accordance with paragraph 4 of the Regulations of the Ministry of Internal Affairs, in accordance with the tasks assigned to it, summarizes the practice of applying legislation on issues falling within its competence, develops proposals for its improvement and, in the prescribed manner, submits them to the Cabinet of Ministers of Ukraine; develops draft laws and other regulatory acts on issues within his competence. The first part of Article 4 of the Law of Ukraine “On Security Activities” establishes that the state regulatory bodies in the field of security activities are the Cabinet of Ministers of Ukraine, as well as the central executive body in the sphere of security activities. So, the Ministry of Internal Affairs developed a draft order within the limits of its powers and in compliance with the requirements of paragraph 3 of the CMU Resolution No. 975. |
| 3. | The reference in paragraph 12 of the “Procedure” to the compliance of the procedure for concluding contracts for protection on the terms of public procurement of the specified services objectively negates the “Order” itself in any form of its expression. | All-Ukrainian Association of Organizations of Employers of the Security Industry “Federation of Security Professionals” | Not taken into account. The Law of Ukraine “On Public Procurement” defines the legal and economic basis for the procurement of goods, works and services to meet the needs of the state, territorial communities and amalgamated territorial communities. In accordance with paragraph 12 of the draft order, in the case of the procurement procedure for the provision of security services, the provision of protection of objects by security police bodies on a contractual basis is carried out in accordance with the legislation of Ukraine. It should be noted that this paragraph of the draft order emphasizes the unconditional compliance with the requirements of the legislation of Ukraine after the completion of the relevant procurement procedure. |
| 4. | The conditions for the implementation of the Resolution of the Cabinet of Ministers of Ukraine dated November 21, 2018 No. 975, in addition to the approval of the Ministry of Internal Affairs of the appropriate “Procedure”, are also the approval of the joint “Methods of price formation for services provided by security police bodies” with the Ministry of Economy. Such a regulatory act, even at the project stage, has not yet been drawn up. The introduction of the procedure of “obligations outside market conditions in the absence of a normatively mandatory pricing methodology for the specified “services” has signs of violation provided for in paragraph four of the second part of Article 15 “Anti-competitive actions of authorities, local self-government bodies, bodies of administrative and economic management and control of the Law of Ukraine “On protection of economic competition.” | All-Ukrainian Association of Organizations of Employers of the Security Industry “Federation of Security Professionals” | Not taken into account. According to paragraph 3 of the third paragraph of the Resolution of the Cabinet of Ministers of Ukraine No. 975, the Ministry of Internal Affairs together with the Ministry of Economic Development and Trade (today the Ministry of Economic Development, Trade and Agriculture of Ukraine) should approve the methodology for pricing services provided by the security police. Today, the development of this technique continues. In this regard, the formation of prices for security services for all facilities, the list and composition of items for calculating the cost of services provided by the security police is carried out in accordance with the requirements of the legislation of Ukraine on pricing, accounting and tax accounting, taking into account the principles of self-sufficiency defined by state and sectoral regulations, technical and economic calculations, estimates, taking into account the prices of material resources and services in the planned period. The cost of expenses for security services is determined in accordance with Regulation (Standard) of Accounting 16 “Expenses”, approved by the Order of the Ministry of Finance of Ukraine of December 31, 1999 No. 318. Payment of monetary support and social guarantees of police officers, norms of uniform, special equipment, special products, etc. are regulated by legal acts of Ukraine. In particular, during the calculation of the price of security services, the following are taken into account: monetary support of police officers according to the Resolution of the Cabinet of Ministers of Ukraine of November 11, 2015 No. 988 “On monetary support of police officers of the National Police”; wages for employees of free hire; expenses for a single social contribution in accordance with the Law of Ukraine “On collection and accounting for a single contribution to compulsory state social insurance”; the amount of wear and tear of tangible property and other costs associated with the provision of security services; taxes, fees and other mandatory payments, provided for by the legislation of Ukraine. Taking into account the above, the formation of prices for security services is carried out exclusively on the basis of the norms of the legislation of Ukraine. |
| 5. | Outside the scope of the “Procedure”, but as an improper basis for its preparation, they are forced to indicate that 17 of the 18 “categories” of objects included in the Resolution of the Cabinet of Ministers of Ukraine of November 21, 2018 No. 975, in addition to the last, objects of the State Material Reserve, on the organization of their protection, have, respectively: other than that provided for by the specified Resolution of the Criminal Procedure The MU is a subject composition authorized to make decisions on the organization of protection of objects of the corresponding “categories”. | All-Ukrainian Association of Organizations of Employers of the Security Industry “Federation of Security Professionals” | Not taken into account. In the note to the list of Categories of objects of state form of ownership and spheres of state regulation that are subject to protection by police bodies on a contractual basis approved by the Resolution of the Cabinet of Ministers of Ukraine No. 975, there is a clarification stating that objects protected by departmental (special, specialized, military by the decision of the management of the body, enterprises, institutions, organizations under the responsibility of such objects, can be protected by the decision of the management of the body, enterprise, institution, organization, established and operating in accordance with the legislation of Ukraine (strengthen) security police bodies on a contractual basis (except enterprises, institutions, organizations that are under the management of the State Reserve) as an additional reinforcement of objects already protected by departmental security units or military formations. It should be noted that the protection of objects by the security police is carried out in accordance with the requirements of regulatory legal acts of Ukraine, in particular: Instructions on the organization of official activities of security police bodies during the implementation of measures for the physical protection of objects approved by the order of the Ministry of Internal Affairs of July 07, 2017 No. 577, Instructions for the technical operation of security devices and organization of work of centralized surveillance points in bodies, units of the security police, approved by the order of the Ministry of Internal Affairs of June 23, 2017 No. 533, defining the principles of organization and implementation of measures in accordance with the specified type of protection. Please note that the comments to the draft order set out in the appeal mainly appeal to the CMU Resolution No. 975, at the same time no specific comments or proposals to the draft order are given. In view of the foregoing, we believe that the approval of the order is necessary for the normative determination of the procedure between security police bodies and customers under the control of objects belonging to the categories approved by the Resolution of the Cabinet of Ministers No. 975 regarding the provision of protection on a contractual basis. |
Based on the results of electronic consultations with the public, it was decided to refuse to take into account the submitted proposals and comments on the project.
