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So what will “New SBU” be?

12.02.2021
Victoria Mozgova, an expert from Ukrainian Institute of the Future, Doctor of Law, senior researcher

Last week VRU adopted in the first reading the bill “On amending the Law of Ukraine “On the Security Service of Ukraine“ concerning the improvement for the organizational and legal grounds of activity of the Security Service of Ukraine” No. 3196-d of 26.10.2020. On one hand, it is presented that its provisions provide for increased efficiency and high-quality transformation of the secret service, minimization of abuse in its activities. Furthermore, it is stated that the bill takes into account the recommendations of our international partners. However, on the other hand, we hear a lot of critical remarks concerning the bill (both from the state and civil sector) in terms of gross and wide-scale violations of human rights and destruction of the security system of the state. Let us try to figure it out, examining the individual blocks of questions about how the “New SBU” is imagined, starting with the crucial aspect – the personnel.

What will be the personnel policy of the “new SBU”?

If you ask any of us to provide the epithets to the phrase “special service that provides the state security”, one of them would probably be “professionalism”. Meanwhile, when you get acquainted with the principles of activity of the suggested “new SBU” (Art. 6), they lack the principle of professionalism. In their turn, the candidates for the position of the Head of SBU are not required to have the experience of working in SBU or holding other leading positions in state authorities. In other words, the practice existing since 1992 is preserved.

The provisions of Article 46 of the bill essentially create the basis for the upcoming destruction of the system of professional training for personnel of SBU in Ukraine on the basis of higher education institutions, which since 1990s, being in the close contact with the practice, provide not only fundamental legal education, but also special training necessary for work in the special service (on the basics of state security, counterintelligence and operative investigation, tactical special and operational tactical training etc). The legislator preferred such kind of preparation of personnel for the special service as retraining “for a reduced period of study”.

The legislator’s approach to the staff reduction calls for remarks. The bill suggests to reduce the number of SBU employees by 10 thousand (from the actual 27 to 17 thousand) by the end of 2023 (meaning less than in three years). Although the most surprising in this situation is not the well-known state practice of treating the personnel as consumables, but the fact that the position of SBU in this issue changed so much in a month.

Thus, on the eve of the vote in the early December, which did not take place, the inadmissibility of the suggested staff number of 17 000 full-time positions and the temps of reduction was reasonably (on the grounds of security) proved in the critical letter of SBU No. 16/5767 of 01.12.2020 on the bill No. 3196-d. The letter defended the position that the numbers of personnel could only be reduced to 20 000 positions in 6 years (by 2027). However, currently the official site of the SBU does not have the criticism of that question, it notes that the number of the “new SBU” after the adoption of the bill will be 17 000 positions “in the peaceful time”. It is only unclear, which role is played in the reduction by the current special period. In any case, such quick change of the state positions is somewhat alarming concerning the apolitical nature of such matters. The light on this issue could be shed by publishing a part of the real operatives of the SBU from the 27 000 persons, but this is a “mystery behind the seven seals”.

As for the wages for the employees of the “new SBU”, according to the calculations of MSED of VRU (opinions for the bill 3196-d) “given only the monthly allowance for the years of service and allowances for particularly important tasks … and not taking into account other surcharges and allowances, the amount of salaries/wages would constitute between 20 and 150 subsistence minimums for employable persons, which in 2020 would constitute UAH 42 040 and 315 300, accordingly”.

Because of that the suggested changes to Article 52-1 of the Law of Ukraine “On prevention of Corruption” draw particular attention: after they come into force the access to the information concerning the financial control (including the declarations) of all SBU officials, including the management, would be closed. The bill excludes only those who work under the employment contract. At the same time, the current edition of that norm already contains all the necessary security restrictions for the persons directly involved in operative search, counterintelligence or intelligence activity.

A positive aspect in the personnel policy still exists in the form of the provision that before being employed in the SBU the person must undergo a medical examination, professional and psychological selection, counterintelligence interviewing and psychophysiological examination using a polygraph (Art. 29). However, from the position of human rights, in the ХХІ century the fact that the grounds for the dismissal of SBU officers who were awarded special titles lack such grounds as “voluntary dismissal” is questionable, but there is one curious set of grounds: due to “systematic non-compliance with the terms by the Security Service of Ukraine – at the request of the employee” (Art. 36).

Does the “New SBU” officially open the doors for the politics?

Although the principles of activity of the SBU include the political neutrality and independence (Art. 6), the bill, for reasons that can only be guessed, introduces serious changes to the work of the SBU Board – a strategically important collegial advisory body that “defines the ways to perform the tasks assigned to SBU, takes the decisions on the main directions and the problems of operational and service activities, as well as the work with personnel”. They concern the fact that the current Law “On SBU” since 1992 (since it was adopted) has the provision, according to which the People’s Deputies of Ukraine are not accepted to the Board of SBU, and the participation of its members in the parties, movements and other civil associations that have the political aims, is stopped (Art. 14). The suggested bill fully eliminates those provisions, which erases the guarantees of the political neutrality and independence of the special service stated in the bill.

Also, in the context of the mechanisms for political pressure, the following provisions can be called a pearl of the rule-making: “The maximum number of SBU within the total number may be established by the President of Ukraine taking into account the needs of the security environment and the suggestions of the Board of SBU…” (Art. 8).

Does the bill No. 3196-d take into account the key propositions of the international partners, and to what extent?

For example, in the letter of 17.09.2020 the International Advisory Group consisting of the representatives of EU, NATO and USA (hereafter – the International Advisory Group) expressed several positions concerning the previous edition of the bill on the reform of SBU, which did not lose their relevance, in particular, it was advised:

– to gradually transform the SBU into a purely counterintelligence body that does not have law enforcement functions (limiting the law-enforcement powers during the transition period);

– to gradually limit the role of SBU in combating the economical crimes, organized crime, smuggling and corruption;

– to provide legislatively that the observance of human rights and freedoms of citizens should be among the top principles of the SBU activity;

– to improve the parliamentary control etc.

Let us examine each of those blocks of questions, starting with the human rights.

Observance of human rights. The problem of the presence of the risks of gross violations of human rights in the bill is quite thoroughly covered in the letter of the Ministry of Justice. I would provide only one excerpt from it: “Analyzing the provisions of the Bill in a systemic connection with the current legislation – the Code of Criminal Procedure of Ukraine (hereafter - CCP) and the Law of Ukraine “On the operative investigation activities” (hereafter – the Law on OIA) that directly regulate the issues of carrying out the covert investigation (search) activities, it is possible to come to a conclusion that most of the powers of SBU that provide the intrusion in the private and family life of a person would be exercised outside of CCP and the Law on OIA and would not provide for a proper judicial review of their lawfulness” (letter No. 53069/17579-4-20/11.2.2 of 28.11.2020).

In its turn, analyzing the previous edition of the bill, OSCE notes: “Given the risks that the powers of SBU may violate the human rights, the main basis must satisfy the principle of legal certainty. It means that the law must be characterized by proper accessibility, it must be clear and predictable, meaning that it must be precisely formulated for the persons to be able to correct their conduct. This also has significance for the prevention of arbitrariness in its use” (see OSCE opinion of 13.10. 2020 No.: GEN-UKR/380/2020 [AlC] concerning the bill on amending the Law of Ukraine “On the Security Service of Ukraine”).

Unfortunately, it cannot be said that the updated version of the bill properly included the provided recommendations. The basic terms, around which the activities of the “new SBU” are realized, have an extremely broad and ambiguous definition (interpretation) both in the bill itself, and in the current legislation: “state security”, “threats and risks to the state security”, “national interests”, “terrorist act”, “intelligence and subversion activity” etc. One of the principles of the rule of law is violated in such way – the grounds for the restriction of human rights must be interpreted narrowly and due to real and identified risks to national security.

Furthermore, it is necessary to point out the high risks of violation of the following human rights.

The right to freedom of thought and speech, to freely express one’s views and beliefs, as well as the risks of influence on the political processes.

Amendments to the Law “On Television and Radio” provide that one of the grounds to revoke the license for broadcasting is “a submission by SBU concerning the license-holder’s separatist, terrorist, subversive or intelligence and subversive actions, or other actions aimed at violation of inviolability of the state border of Ukraine, against the basics of the national security, peace, security of humanity and international legal order”. At the same time, the commission of such actions is not required to be established previously by a court, in particular, within criminal proceedings.

An unacceptable interference in the election process is presented by the suggested amendments to Articles 216, 230, 231 of the Electoral Code of Ukraine, which provide that organization of a party cannot be a subject of the election process if the SBU sends a submission to CEC, concerning that organization, or a party in general, committing separatist, terrorist, subversive or intelligence and subversive actions, or other actions aimed at violation of inviolability of the state border of Ukraine, against the basics of the national security, peace, security of humanity and international legal order (para. 9 subpara. 2 of the Final and Transitional Provisions). As a result of the SBU sending such submission the territorial election commission must refuse to register the candidates for deputies from the relevant party, or cancel their registration. The problem here also lies in the fact that it is not the issue of proving the elements of a criminal offense, but the general assessment of the activity of a politician or a party according to the criteria set by the “new SBU”.

Also, the bill provides the SBU with the right to conduct the special informational operations – “the complex of actions and decisions with the use of mass media and internet network, directed at the change of social and political relations” (Art. 11, para. 9 subpara. 13 of the Final and Transitional Provisions). Given that the counterintelligence activity of the SBU is carried out on the territory of Ukraine, it is necessary to have a clear definition of the functions (tasks) of such operations concerning the population of Ukraine in the law. Otherwise, the legal uncertainty in this issue would create serious risks of uncontrolled and irresponsible influence of SBU on the public conscience and political processes in the state.

Among others, the powers of the “new SBU” include carrying out the measures directed at prevention and termination of activity … of associations on the territory of Ukraine whose activity creates the threats to state and national security”. The above-mentioned, due to wide interpretation of such threats in the bill, may lead to abuse against the political opposition or the associations that peacefully defend their beliefs or demands to the government elected by them.

In addition to the above, an important guarantee of observance of lawfulness in the activity of the “new SBU” is also absent – the bill does not provide the legislative requirement concerning the state registration of the regulations of SBU on the issues affecting human rights, freedoms and legitimate interests (in compliance with the secrecy regime). Currently this is done on the basis of a bylaw – a decree by the President of Ukraine of 1999 (No. 767/99), However, without providing for this in the law, one should not expect this practice to be maintained.

The right to protection and abuse of consent. The project provides (utilizing the general non-specific phrases: “for carrying out the tasks assigned to SBU” or “to perform the functions within the competence”) that SBU has the right to receive on the free basis, with the consent of the individuals and/or enterprises, institutions and organizations of non-state form of ownership, direct access to physical media belonging to them (Art. 13); to question the persons with their consent, including questioning without disclosing the real aim of such measure, to receive the documents from them, copy those documents (Art. 11); enter the premises and the land plots of the individuals with the consent of their owners or proprietors, including doing so without disclosing the affiliation with the SBU and the real aim of such events (Art. 11). First, the above-mentioned powers may only be used in the framework of counterintelligence activities, and the information received cannot be used in the criminal proceedings. This must be clearly provided in the law. However, the bill, on the contrary, also notes: “the information obtained or created by the SBU in the result of the counterintelligence measures cannot be used for performing the tasks of the criminal proceedings concerning the offenses that are outside the jurisdiction of the SBU (Art. 15). Meaning that there is no prohibition for the SBU to use the information obtained in such a manner for the criminal proceedings.

It should be explained now, that during the use of the counterintelligence information the data on who, when and how obtained the information is not disclosed, and it is impossible to confirm the originality of the copies of the documents added to it, in terms of criminal procedural law.

Second, the absence of limitation of cases where the SBU can obtain the information with the consent of the persons may lead to the abuse of such consent, since not every person can say no to armed officers of the special service or law-enforcement bodies. The problem of consent of the person concerning whom the intrusive methods are used was also highlighted by the international organizations, in particular, OSCE (see OSCE opinions concerning the bill on amending the Law of Ukraine “On the Security Service of Ukraine” of 13.10. 2020 No.: GEN-UKR/380/2020 [AlC]).

Counterintelligence activity. Expressing that the main activity of the SBU is counterintelligence and that the bill improves its efficiency, the legislator did not provide the sufficient guarantees against the groundless restriction of human rights in the process of carrying it out. In particular, SCU (letter No. 3348/0/2-20 of 14.12.2020) noted concerning the amendments to the Law “On Counterintelligence Activity”, that according to the suggested Article 8-3, the court has to examine a petition on providing the permission for carrying out counterintelligence activities no later than 6 hours from the moment of its receipt, and the only ground for refusal to grant the permission is the violation of the territorial jurisdiction. In such circumstances the court will not have the possibility to deliver a lawful and reasonable decision.

Concerning the economics and corruption. If approached from the formal point of view, the bill No. 3196-d really suggests the amendments disbanding the SBU anti-corruption units (C) and economic crime units (EC). It was attempted to present this to us as the main achievement of the bill, and up to 2-3 pages of the bill are given to those changes from the 107 pages.

If one is to acquaint oneself with the entire contents of the bill, it could be seen that the legislator, while limiting some ways for abuse in this area, creates the new ones, under the guise of counterintelligence activity. Thus, the bill suggests the following amendments to the Law “On Counterintelligence Activities” (para. 9 subpara. 13 of the Final and Transitional Provisions): “In carrying out counterintelligence activities SBU can secretly move across the state border and customs border of Ukraine: SBU officers and the persons involved in the confidential cooperation; items, including the ones seized or limited in civil turnover on the territory of Ukraine, in particular the samples of products or substances”. It is difficult to refrain from a few questions here: “How does it all concern the essence and the aim of counterintelligence activity (activity within the state)?”, “Doesn’t this open the “green corridor” for smuggling out any “interesting persons”?”, “The samples of which products and substances seized or limited in civil turnover have to be brought abroad in secret?”, “How will this “secret” crossing of the border of Ukraine remain secret during the crossing of the border of another country and who awaits us with all that “baggage?”, “Do we also plan to cross the foreign borders secretly?”.

It is also seen that the elements of pressure on the business, about the removal of which we are assured, gained the new form in the bill. Thus, against the background of the liquidation of Economic Crimes Units, the legislator provides the SBU with the new power – to freely, within five work days, “receive, according to the established procedure, the information from the law-enforcement bodies and other state authorities, military formations, local governments, enterprises, institutions, organizations” regardless of the form of ownership (Art.13). Meanwhile, the subject of information is not specified, and one of the concepts of the “great” project provides the administrative responsibility in the form of a fine for non-provision or untimely provision of information after the SBU’s request. Also, that provision of the bill contains the risks of violating the articles 31, 32, 64 of the Constitution of Ukraine.

The law-enforcement and other expanded powers. Instead of taking into account the recommendations concerning the reduction of the law-enforcement powers of the SBU, the bill expanded them. In general, the entire scale of the powers of the “new SBU” will be significantly increased in the way that eliminates the action of existing restricting mechanisms and counterbalances in the activity of that body. In the end we would deal with the high risks of abuse and concentration of excessive, uncontrolled power in the hands of the special service and concomitant negative effects on the democratic and political processes in the state.

In particular, the “new SBU” will have the power to enter unobstructed and without the court order into the premises, on the territories and land plots “in emergency cases, connected… with direct pursuit of persons” (Art. 11). However, the bill does not clarify which pursuit is implied. The current Law “On SBU” allows to do this currently only in the cases and under the procedure provided by CCP.

The powers were greatly expanded concerning the use of physical coercion (force), special means and guns (articles. 20, 21, 22). Essentially, the bill copies the relevant provisions from the Law “On National Police” and expands them, including the following: the use of devices for firing cartridges, equipped with rubber or similar in properties non-lethal shells, as well as the use of armored vehicles and other special (specialized) vehicles for repulsion of a group attack. The previous bill No. 3196 and the current Law “On the National Police” contain the important clarification: “repulsion of a group attack that threatens the human life or health”.

The powers of the “new SBU” are separately expanded concerning the use of guns, and the definition of an armed person is provided.

In general, the issue of use of physical coercion (force), special means and guns by the “new SBU” requires additional separate examination, reasoning and clear definition of which exactly functions (powers) of the special service would include it, because according to the international recommendations, the special services should not be provided with powers that duplicate the powers of other law-enforcement bodies.

By the way, the law enforcement powers include drawing up protocols on administrative offences – the bill does not provide the cancellation of those powers even in its concept.

The powers of the SBU for pre-trial investigation are promised by the bill to be essentially terminated since 1 January 2024 (para. 6 of the Final and Transitional Provisions). At the same time, several organizational and operational problems are known now, which obstruct the process, and the high-quality solving of which (with our ability to create reforms) in the provided time period is almost impossible and does not seem to be the real intent of the legislator. We will see it soon…

Control over the activity of SBU by the parliament and society. Without going into detail, any real control is not mentioned in the bill. Only its illusion is created, in particular, because according to Art. 15 of the bill, individual (not specified which exactly) pieces of information, obtained or created during the operative investigation activities of the SBU (this constitutes almost all the information) are published in any way only under the decision of the Head of SBU and in the manner and scale established by him.

In general, that information is not provided and is not published if “there are reasonable grounds to believe that its provision or publication will create a real or potential threats for the state security of Ukraine, human life or health”. In addition, “The head of SBU, his deputies or authorized leaders can refuse to provide information on SBU and its operational and service activity and/or publish it, if he reasonably believes that such provision or publication creates threats to their own security …”.

It can be seen that such approach does not correspond to the current legislation and violates the human right to information.

In particular, it should be said that we are assured that according to the bill, there is a clear distinction between the competence of SBU and other state authorities. Unfortunately, the analysis of the bill shows the opposite: in some cases there were violations of functional balance in the system of state authorities, apparent duplication of powers and risks of unsanctioned interference in the work of another state authority, including Foreign Intelligence Service, Armed Forces of Ukraine and Law-Enforcement Bodies. In particular, the bill provides:

– the creation of structures of SBU cover abroad (Art. 1), conducting the reconnaissance activities with the aim of obtaining the information in the interests of counterintelligence (Art.11) However, the counterintelligence activities must be carried out on the territory of Ukraine (including the diplomatic institutions of Ukraine abroad). The provided powers belong to FIS. As for the right to carry out intelligence activities, it should be noted that the process of duplicating the powers in the work of those special services and, accordingly, unjustified spending of budget costs (taxes of the citizens) was started by the legislator in the new Law “On Intelligence” (of 17.09.2020 No. 912-IX), which should e rectified;

– the powers of the SBU “to carry out the verification of the persons… in connection with their involvement in the confidential cooperation or the use of their assistance as overt and covert freelancers, however, the bill lacks the clear provisions stating which exactly “agents” would be verified by SBU and on what grounds (Art. 11);

– unobstructed access of SBU, with the aim of counterintelligence provision (meaning essentially anything) and carrying out OIA, “to the territory and service premises of the state authorities, military command bodies, local governments, enterprises, institutions and organizations, to the objects of AFU and other military formations”, including FIS, military administration bodies, AFU objects etc. (Art. 11). The above-mentioned violates the security balance between the state authorities, especially concerning FIS and AFU, as well as contradicts the new Law “On Intelligence” and the current Article 7 of the Law “On Counterintelligence Activities”, which provide exceptional cases when SBU is authorized for such actions;

– the powers of the SBU regarding the introduction of equipment necessary to carry out the actions for obtaining the information from transport telecommunication networkscarrying out technical regulation in the area of special technical means for gathering the information from the communication channels and other technical means of covert information collecting and control over their turnover (para. 11, para. 16 pt.1 of Art. 11). Those powers are formulated in such a way that they concern the activity of SBU related to the functioning of all bodies of pre-trial investigation and operational units. Accordingly, for example, only the officers of SBU would be able to wiretap other officers of SBU for the purposes of criminal proceedings;

– the right of SBU to carry out special operations on the temporarily occupied territory, in the areas of hostilities and safe areas bordering those districts (Art. 24). Meanwhile, as noted by the Ministry of Defense of Ukraine (Letter No. 220/7277 of 01.12.2020) the nature of the operations is not specified (counter-terrorist operations, counterintelligence or others). The uncertainty in this issue leads to the conflict of powers between SBU and AFU, since on the level of the law the term “special operation” is used only in the Law “On Defense”, and the organization and conduct of such operations belongs to the competence of the Special Operation Forces of AFU. In general, the Ministry of Defense warns about many conceptual shortcomings of the bill, connected, in particular, to expansion of the functions of SBU and interference “in the areas of responsibility of other state authorities”;

– In 2020 VRU adopted the new Law “On intelligence”which authorizes the SBU to perform intelligence activities, namely: operational units of the Main Department of SBU that carry out the counterintelligence activities, according to that Law, can carry out intelligence activities with the aim of receiving the information in the interests of counterintelligence (pt. 3 of Art. 4). It is seen that intelligence and counterintelligence should be separated, otherwise the question of the duplication of powers arises, as well as the issues of unreasonable spending of budget costs (citizen taxes), the risks of abuse. Therefore, it is considered necessary to correct this situation;

– amendments to the Law “On the National Security of Ukraine”, providing the new definition of terms “defense forces” and “security forces”, removes the law enforcement and intelligence bodies from the definition of “defense forces”, which contradicts the Constitution of Ukraine.

In general, the list of shortcomings of the bill 3196-d (including those that directly contradict the Constitution) can be continued indefinitely. They are so significant in scale that rectifying them does not seem possible, since in the first place it is necessary to change the very concept of the bill, and this should be a new bill. The minor concessions made by the legislator for the international partners concerning taking into account their recommendations constitute “a drop in the ocean”. A good slogan of liquidation of SBU anti-corruption units (C) and economical crimes units (EC) covers other, much more serious things that do not meet the principles of the rule of law.

In the end it should be highlighted, that the bill does not provide for the declared high-quality transformation of SBU and there is no trace of observance of the strategic course for Ukraine’s full membership in the EU and in the North Atlantic Treaty Organization, laid down in the Constitution of Ukraine (paragraph five of the preamble, para. 5 pt. 1 of Art. 85, pt. 3 of Art. 102 of the Constitution of Ukraine), which naturally requires bringing the work of special services closer to the standards of these international organizations.

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