(Nov. 13, 2013) The Ukrainian Ministry of Revenue and Duties recently passed guidelines that provide the Ministry with the legitimate grounds to use computer polygraphs in its work. (Ministry of Revenue and Duties, Decree No. 329 of August 8, 2013 on the Use of Polygraphs in the Ministry of Revenue and Duties of Ukraine and Its Territorial Offices [in Ukrainian], Verkhovna Rada [Ukraine’s parliament] website.)
The Ministry of Revenue and Duties of Ukraine, which is the main government agency responsible for tax collection and tax law enforcement, and its staff will be allowed to conduct psychophysiological tests with the use of a polygraph in order to “prevent and detect corruption and other unlawful activities of employees, protect employees from unlawful acts related to their professional duties, and prevent false allegations and accusations.” (Id. Ch. 1, art. 3). The main purpose of such testing, according to the Decree, is to obtain credible information that otherwise cannot be obtained. (Id.)
Polygraphs can be used only in certain categories of cases as provided by the Decree. First, psychophysiological interviews with the use of a polygraph may be conducted during ongoing investigations within the Ministry and its territorial offices to narrow the range of suspects and to define whether the individuals in question were involved in the offense. Also, a computer polygraph may be used to ensure the credibility of the candidates who apply for work at the Ministry. Mainly, the test will be used to define whether such candidates are suicidal or have an alcohol or drug addiction or a criminal background and to identify their motives in general for taking office in the tax agency. (Id. Ch. 3, art. 1.)
The test results will not create any legal consequences and will not have probative value. According to the Decree, the results of a polygraph evaluation cannot be grounds for taking any administrative and managerial decisions and will only be used as information of an approximate nature during internal investigations within the Ministry and its administration, to create a plan for further checks of candidates. (Id. Ch., art. 5.) In addition, participation in a polygraph evaluation will be voluntary. (Id. Ch. 2, art. 1.)
Ukrainian experts believe that the use of this device may address psychological factors that influence one’s behavior in corruption cases, and an official might abstain from taking a bribe if he knew that he could be subject to polygraph screening. (Natalia Nepriakhina, Examination with Trembling Hands [in Russian], KOMMERSANT UKRAINE, No. 175 (1878) (Oct. 29, 2013).)
In Ukraine, the law recognizes the results of polygraph evaluations as indirect evidence. At present there are no standards for certification of polygraphs and the results of physiological testing with the use of a polygraph may be questioned in court. (Id.) Judges who refuse to accept the results of “lie detector” tests argue that direct references to application of the polygraph are absent from the current rules of criminal procedure. (Oleg Nazarov, Common Problems and Stereotypes of the Practice of Psychological Examination with the Use of Polygraph (“Lie Detector”) [in Russian], EXPERT-NAZAROV.COM (last visited Nov. 12, 2013).)
Prepared by Svitlana Vodyanyk, Contract Foreign Law Specialist, under the supervision of Peter Roudik, Director of Legal Research.