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What is wrong with the bill on SBU?

08.02.2021
Yevgeniy Zakharov

On 28 January Verkhovna Rada in the brief procedure within 17 minutes approved by 285 votes in the first reading the bill No.3196-d “On amending the Law of Ukraine “On Security Service of Ukraine” concerning the improvement of the organizational and legal framework of the Security Service of Ukraine” that amends 36 laws and introduces a new edition of the Law on SBU.

The votes in favor were given by 200 deputies from the “Sluha Narodu” (Servant of the People) party (2 abstained, 7 did not vote), 22 deputies from “Europeyska Solidarnist” (European Solidarity) party, 17 deputies from “Golos” (Voice) party, 19 deputies from “Opozitsiyna platforma za zhittya” (Opposition Platform for Life) party (13 did not vote), 17 members of the deputy group “Dovira” (Trust) (2 did not vote), 6 non-party deputies (2 did not vote), 4 members of the deputy group “Za Maybutnye party” (For the Future) (1 voted against, 3 abstained, 6 did not vote). In “Batkivschina” party (Fatherland) 1 deputy voted against the bill, 8 abstained, 7 did not vote.

What should be the reform of the SBU?

According to our observations, in 2014-2020 SBU was the biggest violator of human rights among all state authorities. It seems that the Service received carte blanche for any means of protection of territorial integrity and state sovereignty of Ukraine. SBU employees performed unlawful searches, unlawful arrests, kidnappings, forced disappearances, detention in illegal places of detention without a court decision, tortures and other kinds of ill-treatment, blocking of Internet, illegal interception of telecommunications, uncontrolled excessive wiretapping of the phones, uncontrolled surveillance and various forms of pressure on the citizens, they participated in illegal extraditions тand expulsion of asylum seekers, excessively classified the information. Furthermore, SBU constantly abused its powers, emerging, like a Jack-in-the-box, in the situations where it should not be at all. For example, the internet is full of stories about SBU’s intervention in business and its protection racket of the corruption schemes. About 30% of the criminal proceedings led by SBU each year did not belong to its jurisdiction under Article 216 of the Code of Criminal Procedure. All this leads to high expectations of changes in the special service, which must turn it into a modern civilized institution.

The consensus of Ukrainian and international experts has long been created concerning the reform of the SBU: that centaur that combines the functions of the classic special service and a law enforcement body does not have the right to exist in the country that claimed that it sought to become a member of the EU and join NATO. SBU should be deprived of the law-enforcement functions, it is necessary to ensure that it provides and observes the human rights, as well as introduce the mechanisms of efficient parliamentary and extra-parliamentary control over its activity, the need for such control is significant.

Therefore the bill that liquidated the SBU Office for Combating Corruption and Organized Crime and for Combating the Economic Crime, and planned to transfer the functions of the pre-trial investigation of SBU to the State Bureau of Investigations by January 2026, meanwhile gradually reducing the number of SBU and performing its partial demilitarization, was a widely endorsed and long expected reform.

…And it turned out as always

In reality, if one is to read bill No. 2396-d carefully, those liquidated departments would be reincarnated in the form of functional divisions of the SBU that would implement the powers of the SBU in the field of counterintelligence activities, and they will be carrying out counterintelligence provision in the area of combating the organized crime (amendments to Article 10 of the Law “On the counterintelligence activity”) and in the context of the economical potential. Therefore, they will continue to “shake” the business, protect the smuggling etc, however, in much more comfortable conditions, since the counterintelligence activity is, by its nature, more closed than the law enforcement. SBI in its current state with the maximum number of 1600 people, cannot deal with the investigation of the crimes even under their own jurisdiction, and is simply unable to perform the function of the investigation of crimes instead of SBU. Therefore the norms on the transfer of pre-trial investigations to SBI are seemingly illusionary.

Under the bill No. 3196-d SBU receives incredible powers that had been out of the question before, now it would have much wider capabilities of control over the state authorities, it would terrorize the business, public organizations and any persons, remaining even more uncontrolled and enjoying even greater impunity than now. It should be noted at that stage that many norms of the bill No. 3196-d are not worded clearly, they are vague and allow for various interpretations, which leaves the possibilities for the abuse. The bill does not meet the requirements of the European Court of Human Rights concerning the quality of the laws that limit the human rights and fundamental freedoms: they must be clear, accessible and predictable.

Thus, the amendments to Article 1 of the Law “On the National Security of Ukraine” provide the following definition: “national security of Ukraine is the state of protection of the state sovereignty, territorial integrity, independence, constitutional order and public administration system, the population, political, economic, defense, informational, as well as scientific and technical potential, which in conditions of activity of the actual threats of the non-military nature provides the existence of sovereignty of Ukrainian state and its capability of performing its functions”. A question emerges at once: is “which” related to the “potential” or “the state of protection”? – it could be understood both ways. However, no matter how one is to interpret this, that definition is an evaluative judgment, according to which anything not related to military threats can be attributed to state security, meaning that the competence of the SBU may include any issue concerning the threats of a non-military nature. However, the competence of the SBU in a democratic country must be clearly defined.

In general, it is wrong to consider the amendments to the laws on the national security and SBU in package, since it effects the scale of competence of SBU due to obvious conflict of interests.

Under Article 1 of the bill on SBU “the threats to national security are the phenomena, tendencies and factors that make it impossible or difficult, or may make it impossible or difficult to protect the state sovereignty, territorial integrity and democratic constitutional order and other national interests from the real and potential threats of the non-military nature. The actual threats to the national security of Ukraine are defined by the Strategy of the National Security of Ukraine”. Once again a “rubber” definition, evaluative judgment that can fit anything. The vagueness of this definition leaves a great space for the discretion of the employees of SBU to decide what is a threat to the national security. Such limitless space for the interpretation concerning the national security and the threats to it creates ample opportunities for abuse.

Let us provide another “rubber” definition. In the amendments to the Law on the counterintelligence activity the reconnaissance activities are replaced with reconnaissance and subversive activities defined in the following way: “reconnaissance and subversive activities are the activities carried out by foreign states and their structures, as well as organizations, individual groups and individuals, directed at reconnaissance (obtaining the information that can be used for the creation or implementation of threats to national security and/or increasing the risks to the national security, as well as the creation of conditions necessary for obtaining such information) and/or subversive activities (influence on the social relations that poses or may pose a threat to the national security and/or increases the risks to the national security)”. Under such definition, any exchange of information with foreigners, even if such information does not concern the state, or a successful import of any product, may be interpreted by SBU as subversive activities.

New powers of SBU

So what can SBU do under the bill No. 3196? Its powers were greatly increased in the areas where it is acting now, and they covered the new areas of activities.

Thus, SBU will be able to significantly interfere in the election process. No later than 45 days before the election it can file a petition to CEC concerning a party’s organization or a party itself carrying out “separatist, terrorist, subversive or reconnaissance and subversive activities or other actions directed at violation of territorial integrity of Ukraine, against the norms of the national security, peace, security of the humanity and international order”. This petition entails a denial of registration for the deputy candidates. It can be challenged in the court. However, it is a gross violation of the voting rights. The petition of the SBU should be directed to the court, and not to CEC, and the denial to register a party could be carried out on the basis of the court decision.

In Article 6 of the Law “On Television and Radio” the list of appeals, for the proclamation of which the use of television and radio organizations is not allowed, includes the appeals of the “propaganda of terrorism, separatism, subversive or reconnaissance and subversive activities or other actions aimed at violation of integrity of the territorial border of Ukraine, against the foundations of the national security, peace, security of humanity and international legal order”. Given how vaguely the definition of “reconnaissance and subversive activities” is worded, one can state that the changes significantly threaten the enjoyment of the freedom of expression. Even more, the National Council will now be able to revoke the license of a broadcaster after the application of SBU: the list of grounds for the revocation of a license (pt.2 of Article 37 of that Law) was supplemented by the following subparagraph: d) the application by the Security Service of Ukraine concerning the license holder-performing the separatist, terrorist, subversive or reconnaissance and subversive activities or other actions aimed at violation of integrity of the territorial border of Ukraine, against the foundations of the national security, peace, security of humanity and international legal order. Such application by the Security Service of Ukraine can be challenged in the court”. This interference of SBU in the enjoyment of the freedom of expression cannot be considered proportional and is a violation of that freedom. As a minimum, there should be an application to the court, and the revocation of license according to the court decision that entered into force.

SBU receives legal access to the bank secret. Before the amendments, the banks had the duty to disclose the bank secret to the prosecution bodies of Ukraine, State Bureau of Investigation and National Anti-Corruption Bureau of Ukraine in the cases concerning the identification of unjustified assets, Now SBU is also in the list.

SBU received the right to monitor the observance of contracts concluded in the framework of private-public partnership. A representative of the SBU is also included in the tender commission regarding the concession of a state-owned object.

Under the amendments to Article 2 of the Law “On the State Control over the international transfer of military and dual use goods” the activity of the SBU would be removed from the scope of that Law: “international transfers of the technical means, weapons, ammunition, military and special vehicles that are directly or indirectly used by the Security Service of Ukraine to carry out its operational and service activities or for its organization or provision”.

As you know, personnel decide everything. A representative of the Central Office of SBU, from the functional subdivision that carries out counterintelligence provision of the state authorities, will now be a member of the Commission on senior civil service. The tender commission in the regional state bodies includes a representative of the relevant regional bodies of the SBU. “During the compilation of the general rating of the candidates the commission or tender commission takes into account the findings of the inspection carried out by the Security Service of Ukraine”. Furthermore, “According to the results of the findings of the Security Service of Ukrainethe commission or tender commission can make a decision to revoke a candidate from the tender. If the negative findings of the Security Service of Ukraine are not taken into account by the tender commission, the Head of the commission or the tender commission must provide the motivated explanation to the Security Service of Ukraine on the reasons for such disregard”. The findings of the Security Service of Ukraine can be challenged in court.

The prosecutors also became fully dependant on the SBU. “Appointment of the prosecutors to the administrative positions…, except the position of the Prosecutor General, is carried out taking into account the findings of the inspection by the Security Service of Ukraine provided by the Law of Ukraine “On Counterintelligence Activities” (except the prosecutors from the Special Anti-corruption Prosecutor’s Office).

Actually, appointment to a position in the public service was still subject to mandatory special scrutiny conducted by the SBU, however, it had mostly formal nature. Now that process is legalized, regulated, and the influence of the SBU on the appointment became more significant. Now none of the candidates to the positions of the public service of the “A” and “B” categories will de facto be able to hold the positions they are applying for without the agreement of the SBU.

Other violations of human rights

Articles 18-21 of the bill on SBU tell about the right of the SBU officials to detain the individuals and use various means of coercion in the process. At the same time the representatives of the SBU are not burdened by the need to introduce themselves, unlike the policemen and the members of the National Guard, and are not obliged to notify the Center for Free Legal Aid about the arrests or ensure the right of the detained persons to notify their relatives about the detention. That means that the detention defined by the bill on SBU deprives the detained person of the right to access to the legal defense guaranteed by Article 59 of the Constitution, and it does not contain the guarantees against the violations of the right to freedom or the guarantees against tortures and ill-treatment. With the provision of such powers to SBU the guarantees of Article 29 of the Constitution could be forgotten.

The bill No.3196-d separates the counterintelligence and operative investigation activities, now the counterintelligence activities cannot serve as grounds for operative investigation activities (OIA). This is more than compensated by a significant expansion of the powers of counterintelligence subdivisions and separate definition of counterintelligence measures. At the same time, many new powers violate the human rights enshrined in the Constitution and international standards, in particular, the following powers:

«– to question the persons, including the questioning without disclosing the real aim of such measures  and with the use of technical means of registration of human reaction, obtain documents from them, copy those documents;

to carry out, in the procedure approved by the legislation of Ukraine, the controlled (under operative control) movement of people and/or controlled (under operative control) movement of objects across the state and customs border of Ukraine;  ”

enter the premises and land plots of the individuals with the consent of their owners or proprietors, including the entry without disclosing the affiliation with the Security Service of Ukraine and the real aim of such measures;

carry out the restrictions of access to the defined (identified) informational resources (services) with the aim of prevention of a terrorist act or carrying out the reconnaissance and subversive activities harmful to Ukraine, counteraction of the special informational operations against Ukraine, directed at undermining of the constitutional order, violation of sovereignty and territorial integrity of Ukraine, worsening of social and political or economic situation, those used for the organization, preparation, commission, funding, contribution or covering of unsanctioned interference in the activities of the objects of the critical informational infrastructure, with the use of the technical means that are installed by the operators, providers of telecommunications and other entities;

demand, collect and study, on the grounds defined by the law, the documents and information that characterize the activity of the enterprises, institutions, organizations, as well as the way of life of individuals, sources and scale of their income, to prevent and stop the reconnaissance, subversion, terrorism and other kinds of unlawful encroachment on the state security of Ukraine; obtain from the operators and providers of telecommunications the technological information and other kinds of information concerning the functioning of the networks, including those with limited access, in the conditions defined by the proprietor of that information and the subdivision of the Security Service of Ukraine authorized to implement the operational and technical measures; participate in the verification of the source of the investments in order to prevent the process of concluding and implementation of the contracts that can adversely affect the security, integrity, stability and continuous functioning of the objects of crucial infrastructure, by the operators (owners) of the objects of crucial infrastructure, or the attempts to use the objects of crucial infrastructure in funding of the terrorism or reconnaissance and subversion;

solely to terminate the reconnaissance, subversion, terrorism and other kinds of unlawful encroachment on the state security of Ukraine, as well as during the prosecution of persons suspected of such activity, at any time enter without the obstructions and remain on the territory and in the premises of state authorities and their structural subdivisions, local governments, enterprises, institutions and organizations, regardless of the form of ownership, and on the territory of guarded military objects, – under the defined procedure”.

As a minimum, a permission of a court is needed to carry out such measures, however, it is not mentioned. However, for example, the provision of information to SBU by non-government legal entities and individuals has to be carried out on the grounds of Articles 31 and 32 of the Constitution only according to the court decisions.

The counterintelligence measures that are performed under the court decisions provide for the surveillance over a person and location, audio and video control over the person and location, obtaining the information from the telecommunications and electronic informational networks, covert searches, covert control over the correspondence etc. It should be noted that under the Law on the operative investigation activities, the OIA that violate the human rights are possible only under a court permission in the cases where a serious or particularly serious crime is being prepared or committed, and if the information cannot be obtained in another way. Counterintelligence measures are performed “solely with the aim of prevention, timely identification and termination of reconnaissance, subversion, terrorism and other kinds of encroachment on the territorial security of Ukraine, obtaining of the information in the interests of the state security of Ukraine”, meaning that the grounds are limitless, and the court is only required to provide the permission to carry them out “urgently, but no later than six hours” from the moment of reception of the petition “with the participation of the person who filed the petition”. The judge can only refuse to provide the permission in the case of violation of territorial jurisdiction. I believe, such procedure of reception of the permission is nothing but mockery of a judge.

In the amendments to Article 15 of the Law “On Combating the Terrorism” the officials involved in an anti-terrorist operation received the right “to provide direct access to stationary and mobile systems and devices of radio control, audio, video and audio/video surveillance, automated informational and reference systems, accounts, registers, banks or data bases, documents and other material media that belong or are used by the state authorities, local governments, military formations created according to the law, state enterprises, institutions, organizations and/or those that belong to the individuals and non-state legal entities” on the territory where such operation takes place. It is interesting, is there at least one European special service with such powers? It is only possible to seriously discuss the legality of such powers in Ukraine on the condition of martial law or state of emergency and the use of Article 64 of the Constitution.

SBU can now legally use the information or other personal data about a person, which is contained in the Unified State Demographic Register. The bill 3196-d prohibits to provide the person with the information about who receives his or her personal data, in the case of its provision under the requests of the bodies performing operative investigation or counterintelligence activity and combating the terrorism.

But the representatives of SBU whose personal data constitute a state secret “due to their direct performance of operative and investigative or counterintelligence activities, as well as the data about the persons applying for such positions and the persons who stopped the activities”, are subject to financial control in the way that makes it impossible to disclose the affiliation of such persons with SBU, the same concerns their relatives. Therefore the information about the income of the SBU officials is classified.

The information on the SBU expenses is also closed. The following norm was added to Article 1 of the Law of Ukraine “On the openness of use of public funds”: “According to this Law, the information on the use of state funds, which is a public information with the access restricted according to the law, is not to be disclosed”. According to Article 8 of the Law “On the State Secret” the information concerning the funding for the intelligence measures, counterintelligence and operative investigation activities is classified; in particular, under Articles 4.5.1 and 4.5.2. of the “Collection of Information Constituting a State Secret”, the information about “financing for the provision with special and main means, weapons and military vehicles” is a secret. Thus, the financial control over the activity of the SBU, carried out by the Accounting Chamber, is transferred to the area of protection of state secret, meaning that it is now closed for the public.

Negative influence on the security sector

Bill No.3196-d has another significant shortcoming: it provides SBU with the powers that belong to other security bodies, creating the duplication of the competencies and causing rivalry of those bodies, and provides SBU with privileges comparing to other security bodies.

:Let us provide the relevant examples.

Thus, in the definition of the cover structure in the Article 1 of the bill of SBU that structure can be located on the territory of Ukraine and abroad, while the counterintelligence activity is only carried out on the territory of Ukraine and diplomatic institutions abroad. It is the authority of the Foreign Intelligence Service to create cover structures abroad.

Amendments to Article 24 of the Law “On Telecommunications” provide that “Technical means for gathering the information from the communication channels and other technical means of covert obtaining of information, installed for the performance of operative investigation or counterintelligence measures by the relevant bodies, should correspond to the standards and technical regulations developed by the authorized state authority”. SBU is that body, and the changes mean that the technical means have to only be installed by SBU. This corresponds to part 1, para. 11 and para.16 of Article 11 of the bill on SBU, from which it follows that the SBU monopolizes the manufacture and use of technical means for gathering the information from the communication channels. Meaning that there is a hidden desire in those norms to provide the gathering of information from the communication channels only in SBU and serve all other operative units in this way, as it was before.

The subdivisions of SBU that will carry out counterintelligence provision in the area of combating the organized crime receive access to the centralized banks of MIA and National Police. Those subdivisions also “interact on a free basis with the informational and reference services of the Prosecutor Generals Office of Ukraine, National Anti-Corruption Bureau of Ukraine, State Bureau of Investigations of Ukraine, Antimonopoly Committee of Ukraine, State Property Fund of Ukraine, Accounting Chamber of Ukraine, State Judicial Administration of Ukraine, central executive bodies, local governments, banks, financial and other bodies and institutions, they use the financial and analytical resources (registers, data bases) that are created by the above-mentioned subjects”. Such a one-sided advantage in the access to data bases would hardly be liked by other law-enforcement bodies that are not inclined to give each other access to the information they possess.

Pt. 2 of Article 24 of the bill on SBU provides for the SBU special operations on the temporarily occupied territory or the area of hostilities, without defining the type of operations. This creates rivalry between the SBU and the Armed Forces of Ukraine, since the term “special operation” is only used in the Law “On Defense” and belongs to the competence of Special Operations forces of the Armed Forces of Ukraine.

Other examples can be provided.

Control over the SBU activity

The amendments to Article 10 of the same Law on the national security clearly define the conditions to join the temporary advisory bodies – public councils at the Central Office of the SBU for the civil control over the activity of SBU. The members of those councils “undergo mandatory testing provided by paragraph 10 of the first part of Article 11 of the Law of Ukraine “On Security Service of Ukraine”, and counterintelligence interviewing”. Paragraph 10 of part.1 of Article 11 says about “verification of persons in connection with their appointment to responsible and especially responsible positions in the state authorities, positions in the Security Services of Ukraine, involvement in the confidential partnership or the use of their assistance as both overt and covert freelancers, arrangement of access to the state secret». According to the amendments to pt. 1 of the Law “On Counterintelligence Activities”, “counterintelligence interviewing is the interviewing of a person (including interviews with the use of a polygraph) on the subject of his or her contacts with the representatives (members) of the special services of foreign countries and their structures, terrorist organizations, transnational criminal formations”. Meaning that only the “specially verified personnel”, as they said in USSR, would be allowed to participate in the public control. How many confidential informants or covert freelancers of the SBU would be among the members of the civil councils is a rhetorical question, I will leave the answer to the reader. It is clear that with such selection of the members of civil councils that mechanism of public control will only be decorative. By the way, it is not clear why there was a need to add this norm to Article 10 of the Law on national security, if it is provided by para. 5 of Article 66 of the bill on SBU.

What other mechanisms of public control are provided? The norm “The supervision over the observance of laws during the counterintelligence activity is carried out by the Prosecutor General, acting Prosecutor General or the deputies of the Prosecutor General, authorized by his or her order” was removed from Article 7 of the Law “On Counterintelligence Activities”, meaning that the counterintelligence activity is left without prosecutorial supervision. According to pt.  1 of Article 67 of the Law on SBU in the new edition The supervision over the covert and other investigation and search activities of the functional units of the Central Office and regional bodies of the Security Service of Ukraine is carried out by the Prosecutor General and the prosecutors authorized by him according to the procedure defined by the law, but pt. 2 of the same Article proclaims that “During the implementation of the prosecutorial supervision measures the authorized prosecutors are not provided with the documents on the methods, powers and means of operative investigation or counterintelligence activities of the Security Service of Ukraine and its implementation of the intelligence measures, planning, organization, financing and material and technical provision of the operative and investigative or counterintelligence measures”. What kind of control would that be? If you add that the prosecutors could not be appointed to the position without the agreement of the SBU (according to the amendments to the Article 39 of the Law “On the prosecutor’s office”), it becomes clear that the prosecutorial supervision over the activities of the SBU has been nullified. Frankly speaking, it had been similarly unnoticeable before.

It is hard to say anything about the presidential control over the activities of SBU. In that part the Law on the SBU is essentially unchanged. The control is performed by the officials specially appointed by the President. The powers of those officials are defined by the Provision that is approved by the President of Ukraine. We have not seen either the Provision or the signs of activity of those officials, and, probably, would not see, because the bill on the SBU does not clarify this in any way.

The only innovation in the issue of control concerns the annual written report on the activity of SBU, which according to the current legislation is submitted by the Head of SBU to the Verkhovna Rada and the President. The bill clarifies that the report has to be approved no later than on 1 April and within 3 days provided to the President, however, the bill does not provide any sanctions for failure to submit the report. Within 3 days from the day of submission of the yearly report to the President the SBU “publishes the information on the directions and main results of its activity in the reporting period, as well as the state of integrity of the employees and officials of the Security Service of Ukraine (“the White Book”)” Within a month from the day of approval the profile parliamentary committee on the issues of national security, defense and intelligence holds the committee hearing on which it listens to the Head of the SBU and approves reasonable findings. The Head of the SBU may be dismissed “after the petition by the President of Ukraine in case if Verkhovna Rada of Ukraine finds the work of the Head of the Security Service of Ukraine unsatisfactory after the results of his or her annual report on the activity of the Security Service of Ukraine with provision of clear causes and grounds for such decision (if the Head was holding that position for no less than a year)”.

In my opinion, the mechanisms of control over the activity of the SBU provided by the bill No. 3196-d are poor and insufficient, and require a significant improvement.

Conclusions

The bill on SBU and changes to 36 laws hastily approved in the first reading expanded the scope of activities and powers of the SBU. If the bill 3196-d is approved in general, SBU will control the appointment of the state officials of the categories “A” and “B”, prosecutors, it will significantly influence the activities of the state authorities and the business by various means, rudely interfere in the election process and the activities of the broadcasting companies. The extremely vaguely worded definitions of some of the main terms leave a great space for abuse. The new powers of SBU grossly violate human rights, in particular, the right to freedom and personal inviolability, the right to privacy, property rights etc. At the same time the actions that SBU was performing unlawfully become lawful: blocking of Internet, interception of telecommunications etc. Many powers of the SBU duplicate the powers of the National Security and Defense Council, Foreign Intelligence Service, Armed Forces, SBI, MIA and National Police, creating rivalry of the security bodies. At the same time SBU remains uncontrolled and with impunity, even the existing poor mechanisms of control over its activities are nullified, and the data on the SBU expenses and the income of all its employees, including the Head of the SBU, constitute closed information.

Essentially the bill No.3196-d legalizes its transformation into the Soviet KGB under the applause of the people who congratulate us with the long-awaited reform of the special service. Have the deputies of the Parliament read what they voted for?

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