In the winter of 2021, the Verkhovna Rada finally voted for the creation of a new body — the Bureau of Economic Security. On March 25 of the same year, the Law of Ukraine “On Bureau of Economic Security of Ukraine” of 28.01.2021 came into force. It is this institution that will now investigate economic crimes. We wrote more about the scope of the body’s competence here.
Of course, any institution needs a strong leader. The head of the BES, in addition to professionalism, must possess many other characteristics: integrity, independence, unblemished reputation, and so on.
So, how to find a worthy leader who meets all the specified criteria? The answer is — to conduct the most transparent and objective competition.
We at TI Ukraine analyzed the regulatory and legal procedures for appointing the Director of the Bureau of Economic Security of Ukraine and the approved documentation of the selection commission which is to conduct the competition for the position of the institution’s head. Based on the results of this analysis, we identified the following potential risks associated with the appointment of the BES Director:
- Non-transparent selection of members to the BES selection commission.
On April 28, the Committee on Finance, Tax, and Customs Policy selected two candidates for the BES selection commission — lawyer Halyna Shevchenko and auditor Liudmyla Rubanenko. At the beginning of the meeting, the chair of the committee stated that he would support them. Most of the candidates did not appear at the special meeting and were not listened to; they were not even invited.
Moreover, the MPs voted for Halyna Shevchenko, although the candidate was not present at the meeting. When asked why she was not invited, Hetmantsev, the chair of the committee, said that “the documents that she had submitted were enough for him.” Shevchenko is a lawyer, her candidacy was put forward by the Ukrainian National Bar Association. Nothing more is known about Halyna.
MP Olena Shkrum warned that it was wrong to vote for anyone without hearing the candidate: “High professional and moral qualities, as well as an impeccable reputation, are very difficult to determine without communicating with a person if we have never seen or spoken to them.” This was also stated by the candidate for a member of the selection commission, general director of the UNGO “Taxpayers Association of Ukraine,” Liudmyla Herasymenko. It was she who accused the MPs of opacity and closeness and noted that “those people who are put forward didn’t even say a word.”
Whether the BES head will be an independent leader depends on the impartiality and professionalism of the commission members. If the members of the commission are elected at random, this may indicate that the procedure for selecting members of the commission is only a formality.
- Incomplete composition of the BES selection commission.
Article 15, part 3 of the Law of Ukraine “On BES” states that the full composition of the commission must consist of 9 people. Now, the commission consists of 8 members because the Verkhovna Rada did not approve a candidate from the Committee on Law Enforcement to the commission. This does not contradict the law because the selection commission is considered authorized if its composition consists of at least 6 approved persons.
At the same time, despite the legality of such a composition of the selection commission, its understaffing can be a potential risk for the functioning of the checks and balances system in the context of the appointment of the BES Director because de facto the representation from the single legislative body of Ukraine is incomplete.
- Non-engagement of international experts in the competition process.
The composition of the commission for the appointment of the BES director is formed only from representatives of the national authorities:
- 3 — from the Cabinet of Ministers of Ukraine, whose composition is directly represented by a certain political force;
- 2 — from the Verkhovna Rada of Ukraine, where most MPs are also representatives of a single political force;
- 3 — from the National Defense and Security Council of Ukraine, which is headed by the President.
That is, in fact, there is no specific opposition among the members of the selection commission that could block the passage of a politically biased candidate to the final of the competition. The function of such an opposition could be solved by engaging international experts in competitive selection.
- Number of finalists in the competition.
Based on the results of the interview, the selection commission conducts a selection of three candidates at its meeting to present to the Prime Minister of Ukraine for consideration. Then Denys Shmyhal will determine who will be the elected candidate subject to appointment by the Cabinet of Ministers of Ukraine.
The risk of offering three candidates at once is that there are no selection criteria among them, and this creates space for manipulation and the election of a more “convenient” candidate. To minimize potential manipulation and choose a more honest candidate, only one person should be selected from among the applicants, rather than three.
- The opportunity for employees of the State Fiscal Service and the tax police to head the BES.
By adopting the law on the creation of the Bureau, the MPs did not support the amendment which would prohibit former employees of the tax police from working in the newly created body, in particular, to head the institution. Now, the media claim that the Parliament considers the current head of the State Fiscal Service to be the leading candidate for the position of the BES head.
The risk here is that, in fact, the body can simply change its name, but its “content” will remain the same and will work according to the “old schemes.” If there were an impartial selection commission, there would be nothing to be afraid of; if there were any manifestations of dishonesty or questionable reputation of the employees of the bodies that are in the process of dissolution, they simply would not reach the final. However, the process of selecting members of the selection commission and its composition causes uncertainty about its independence.
- General postponement of the BES launch.
If to take, in general, the risks of the procedure for creating the BES, and not just the election of the body’s head, then there is a very likely threat that the Bureau will start functioning much later than in September, as stipulated by the law.
Now, the process of election of the director is taking place, and after this stage of establishing the BES, it is still necessary to take measures to create the Bureau, namely: a competition for the election of employees, the announcement of tender procurement, and much more. Such delays may indicate that the authorities are in no hurry to create a body that will investigate violations in the economic sphere.
Bottom line, the draft law No. 3959-1 on amendments to the administrative and criminal legislation on the introduction of the BES activity, which defines the Bureau’s jurisdiction and powers in criminal proceedings, has not yet been adopted. It passed only the first reading, and it is not known when and in what version it will be adopted completely as a law.
Will the BES be able to get a worthy leader with such high risks associated with biased selection? Is it possible to launch an institution starting with such a competition?
It is worth remembering that ensuring a transparent, independent, politically impartial selection of candidates for the position of the BES head is the key to effective work of the body in the future. Time will tell whether we will be heard and how the selection process will take place. We plan to closely monitor the competition and inform you of every detail.