Civil society organizations urge the parliament to improve the draft law on the reform of the Security Service of Ukraine as soon as possible, eliminating the risks of excessive interference of the service in all spheres of society, in the activities of independent state institutions and businesses, threats of gross violations of human rights, as well as strengthening transparency and accountability of the SBU’s performance.
This January, the Verkhovna Rada of Ukraine voted on the draft law No. 3196-D concerning the reform of the Security Service of Ukraine in the first reading which marked the beginning of the transformation of the country’s main security service. Already in the first days of June, this draft will be considered by the Committee on National Security, Defense and Intelligence before the second reading. However, the latest published version of the draft law by the head of the parliament’s working group on the SBU reform, Mariana Bezugla, contains many risks, the non-elimination of which will result in the reform’s failure and Ukraine’s distancing from implementing the best euro-atlantic practices and further integration with NATO.
The cornerstone of the SBU reform is to deprive the body of the functions of pre-trial investigation. This proposal has now been implemented in the draft law and deserves support, but to fully deprive the service of investigation, the Parliament must also adopt amendments to the Criminal Procedure Code. Unfortunately, such amendments to the Code are not considered by the Rada, which may indicate intentions to actually let the SBU maintain that very function.
Most of the concerns regard the proposed changes to the SBU’s counterintelligence activity. In the latest version, the legislator allows the service to carry out a full range of activities to track and monitor a person, leaving the risks of unjustified interference in privacy. Judicial control is only formal in nature, and according to the draft law, materials of such activities are allowed to be used in any court proceedings. This approach does not envisage even half of the guarantees that are defined by the Criminal Procedure Code in the case of carrying out similar secret investigative actions.
In addition, the service gets the right to receive a large amount of information about citizens and businesses out-of-court, including those with restricted access, and to receive such information from telecommunications providers and operators.
The service also is granted new powers that carry risks of interference in the work of state institutions, businesses, and pressure on citizens and should be immediately eliminated:
- the right of the SBU to participate in inspections of persons applying for positions of responsibility and positions of exceptional responsibility in state bodies. The limits of such inspections are not defined, but in combination with other norms, this allows the SBU to dictate the selection commissions of state bodies which candidates should be rejected. Such powers contain significant corruption risks;
- the right of the SBU to send employees to any state bodies and even private enterprises. Such powers will result in the actual control by the service over any state bodies and institutions which turns the SBU into a super-agency;
- the service remains a body that will continue to fight organized crime and will have the appropriate authority. The latter is purely a law enforcement function which the special service, on the contrary, loses during the reform. But the granting of these powers is an actual attempt to preserve the functionality of the infamous “K” Department;”
- the service’s authority to give individuals and legal entities official warnings carries risks of interference in the activity of such persons and pressure;
- The SBU is granted the right to introduce equipment for removing information from communication channels which turns the service into a monopolist in this area and allows it to control the activity of independent law enforcement agencies.
MPs propose to grant the SBU the implementation of anti-corruption activities against its own employees, although numerous journalistic investigations have proved the unjustified incomes of many of them, suspicions about their participation in dubious schemes, however there was no response to it from the SBU itself. The draft law also contains some unjustified restrictions that actually undermine the effectiveness of democratic public oversight over the service’s activity.
The current text of the draft law does not oblige the SBU to comply with the provisions of the Law of Ukraine “On Access to Public Information,” in particular when classifying public information as information with restricted access (using a three-part test). This allows the SBU to classify any information about its activity at its own discretion and violates the public’s right to access public information. The draft law neither envisages channels of communication for SBU employees on possible facts of committing corruption offenses if the information is formally and illegally classified as a state secret. As a result, if the relevant draft law is adopted, corruption risks in the activity of the SBU will increase, in particular, the risks of participation of the SBU leadership in grand political corruption.
Given this, civil society organizations urge MPs to immediately correct these shortcomings and ensure the adoption of a real reform of the SBU and not its imitation.
Anti-Corruption Action Centre
Center for Civil Liberties
All-Ukrainian Association “Automaidan”
Anti-Corruption Research and Education Center in Ukraine (ACREC)
Transparency International Ukraine
Institute of Legislative Ideas
Center for Economic Strategy
Public Control Platform
ZMINA Human Rights Center