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22.05.2004 | Evhen Zakharov and Irina Rapp

Security Bodies in Ukraine. Legal Foundation of Their Activity and Forms of Oversight (Jan.1997 REPORT)

   

1. INTRODUCTION

Ukraine became an autonomous state only five years ago, when the USSRdisintegrated as a result of the August putch. The young state had tobuild all the state mechanism, including security bodies, from thescratch. The Ukrainian KGB was disbanded, and the Ukrainian SecurityService (USS in what follows) was organized.

One should bear in mind that Ukraine was a sort of testing groundwhere the KGB tried new methods of struggle with dissidents. Thefirst secret murders (perhaps on political ground) of Alla Gorskaya,Vladimir Ivasiuk, Nikolay Zvarych were committed in Ukraine, heredrugs were put during searches in order to frame the victims, herethe political enemies of the regime were framed for rape,hooliganism, resistance to police officers, keeping drugs, etc. Itwas in Ukraine where the repressions were especially cruel. UkrainianKGB-men set records in their disciplines: the first woman (OlgaGeyko) was condemned to a term in a concentration camp for theparticipation in Helsinki movement, the first woman-pensioner(75-year-old Oksana Meshko) was condemned according to Article 187’of CC of Ukrainian Socialist Republic, i.e. for spreading slanderinginformation denigrating the Soviet Social System, Raisa Rudenko wasthe first woman condemned for her attempts to get released herhusband, a political convict. During the perestroyka, up to theAugust putch, the KGB continued to persecute public organizations andtheir members supporting the idea of national liberation.

However, the accusation that the KGB is a criminal organization wasnot proven at court, KGB-men guilty of political repressions were notsacked, a new special service built on the principles accepted incivilized states was not created. The weakness of the democraticminority in the Parliament and the weakness of the civil society,lack of mechanisms of efficient control over special service led tothe fact that the USS was organized mainly from the KGB personnel,the laws on security bodies give them significant opportunities forarbitrary actions while the security bodies remain practically closedstructures about whose activity the society knows next to nothing;the results of the state control over the activities of securitybodies are also unknown, and it looks that the state control ispractically non-existent.

The present report makes an attempt at some primary analysis of thelaws on security bodies and on the forms of control over theiractivity. We are going to consider the main statements of theUkrainian Law ’On the Security Service of Ukraine’ as well asthe composition of security bodies in Ukraine.Appendix gives the data on civil officers mentioned inthis report.

2. COMPOSITION OF SECURITY BODIES IN UKRAINE

There are the following security bodies (after the name of theorganization we give the address and name of the chiefs; besidethe operating, we mention the abolished structures):

The Security Service of Ukraine

Address: 33 Vladimirskaya St., Kiev, 252034, tel. 291-93-61;

Chairman - Radchenko Vladimir Ivanovich.

State Committee of Ukraine on state secrets (according to Article 3of the Ukrainian Law ’On state secrets’, this is a special centralbody of the executive power in the sphere of protection of statesecrets)

Address: 16 Lipskaya St., GSP, Kiev, 252601, tel. 293-84-63;

Chairman - Mysnik Pavel Alekseyevich.

State Committee on defence of the state frontier of Ukraine

Address: 26 Vladimirskaya St., Kiev, 252034, tel. 212-87-77;

Chairman - Bannykh Viktor Ivanovich.

State Custom Committee of Ukraine

Address: 4-A Politekhnicheskiy Byst., Kiev, 252055, tel. 446-92-41;

Chairman - Derkach Leonid.

State Guard Directorate (up to the end of 1996 it was a separate bodywhose activity was regulated by the special law; in the end ofDecember 1996 the State Guard Directorate was subordinated to theUSS, about which the Law ’On the security service of Ukraine’ waschanged, but the changes have not been published; so, for the timebeing, we shall not give any data on this directorate).

State Committee on Protection of state secrets in the press and othermass media (was created in 1992; according to Article 30 of the Law’On state secrets’ this committee exercised control on how the lawson protection state secrets were obeyed in the press and other massmedia; in November 1994 the Ministry of Press and Information wascreated and M.I.Onufriychuk, the chairman of the committee, wasappointed the minister while the committee was reorganized intoDirectorate on Protection state secrets in the press and other massmedia; in July 1996 this ministry was merged with the Ministry ofCulture, and this directorate was incorporated in the new ministry,however it lost the former importance: now it has only threecollaborators).

State Service on technical protection of information (it was createdin 1992 and then it was incorporated into the above-mentionedCommittee on Protection of state secrets; in one of reference booksthis committee is named: State Committee on state secrets andtechnical protection of information).

One must also relate to special services the Council of NationalSecurity and Defence of Ukraine, which holds a special status.According to Article 107 of the Ukrainian Constitution, this is acoordinating body in charge of national security and defence, workingunder the President of Ukraine. The Council’s duty is to coordinateand to control the activity of the executive bodies in nationalsecurity and defence. The President of Ukraine is the Chairman ofthis Council, and he picks its personnel. The Prime Minister ofUkraine, the Ministers of Defence, Internal Affairs, Foreign Affairs,the Chairman of the USS are members of the Council by their position.Chairman of the Supreme Soviet of Ukraine may participate in the workof the council. The decisions of the Council become operable byPresidential Edicts. The competence and functions of the Councilshould be determined by the law, but this law has not been adoptedyet.

To reach the Council is possible via the Presidential Administration,11 Bankovaya St., Kiev 252220; Gorbulin Vladimir Pavlovich, Secretaryof the Council, tel. 291-58-06, reception office - tel. 291-60-27.

In our opinion, the law enforcing bodies of the Ministry of InternalAffairs must be regarded as security bodies. They have the rights tocarry out search and investigation operations equal to the rights ofthe USS. With respect to the violation of human rights the militia andthe procurator’s office (especially its investigation branch) are asdangerous as security bodies. By their function some security bodiesand militia double each other (for example, there are the Directorateof the struggle with the organized crime in the Ministry of InternalAffairs - MIA - and the Directorate of the struggle with corruptionin the USS). In the course of time the bodies of MIA and theprocurator’s office blend more and more with the criminal world.Thus, according to V.Durdinets, the Vice-Prime Minister, more than4000 violations of law were found out in law enforcing system in1995, 1430 civil officers were charged with criminal responsibility,but only 62 cases were investigated by the Procurator’s office.Yu.Kravchenko, the Minister of Internal Affairs, said that 419officers of militia were condemned in 1995, among them 35 officers ofinvestigation bodies were condemned for taking bribes.

That is why the legal acts that regulate the activity of the MIA andthe Procurator’s office should be compared to the laws on securitybodies. In this context one should combine considering the criminal,procedural and administrative laws of Ukraine.

Address of the MIA: 10 Bogomolets St., Kiev 252024, tel. 226-20-04;

Minister of Internal Affairs - Kravchenko Yuriy Fedorovich;

Address of the General Procurator’s office of Ukraine: 13/15Reznitskaya St., Kiev 252011, tel. 226-20-27;

Acting General Procurator - Ferents Bogdan Vasil’®vich.

3. LEGAL CONTROL OF SECURITY BODIES’ ACTIVITY

The Ukrainian Law ’On security service’ was adopted by the UkrainianParliament on 25 March 1992, No. 2229-XII, and has not changed up tothe end of 1996.

According to Article 1 of the Law, the USS is the ’state lawprotecting special purpose body ensuring state security ofUkraine’. The USS targets include ’the defence of the statesovereignty, constitutional system, territorial integrity,economic, scientific, technological and defensive potential ofUkraine, justified interests of the state and citizen rightsfrom espionage and subversive activities of foreign specialservices, organizations, groups and persons’, as well as’prevention, finding, suppression and disclosure of crimesagainst the peace and security of mankind, against terrorism,corruption and organized crime in administration and economy,against other illegal actions which constitute danger to thevital interests of Ukraine’ (Article 2). Since many targets ofthe USS are listed explicitly, it is not clear what ’othertargets’ mean in this context.

Such formulas as ’other actions’, ’in other cases’, etc. afterexplicit listing come across rather often in various Ukrainian laws,and they enable the authorities to increase their meddling intoprivacy of citizens, thus creating the threat of violation humanrights. Nonetheless, Articles 5-7 of the Law are rather advantageousfor the liberal cause. Article 5 points out that the USSactivity is carried out on the basis of respecting human rightsand liberties and that bodies and members of the USS mustrespect man’s dignity, treat him in a humane way and not makepublic any information on man’s private life. As an exception,for the efficient suppression and disclosure of state crimes,several rights and liberties may be temporarily restrictedfollowing the procedures and obeying the limits determinedby the Constitution and laws of Ukraine; however, the USS hasthe duty, on receiving a request from an Ukrainian citizen, toprovide him, within one month, with a written explanations ofthe restrictions of his rights and liberties. This citizen hasthe right to lodge a complaint to court about illegal actions ofthe USS officers and bodies. A USS body, in case of abusinghuman rights by its members in the course of executing theirduties, shall restore the rights and liberties, recompense moraland physical losses and punish the guilty.

According to Article 6 the USS is beyond parties: USS-men must duringtheir service suspend their membership in parties, movements andother public unions that profess political targets. Article 7establishes the public right for obtaining information on USSactivities; this article prohibits to conceal information on thetotal USS budget, its competence and main directions of itsactivities as well as arbitrary actions of its bodies and members.

Article 8 of the Law determines relations of the USS with citizensand their unions, with other state bodies, enterprises, offices,organizations, and civil servants. It is mentioned that Ukrainiancitizens cooperate with the USS voluntarily, nothing is said aboutother kinds of cooperation. Perhaps this cooperation is assumed to beobligatory, but there is no explicit mention of this in the Law.

The Law describes a powerful and sufficiently ramified system ofsecurity bodies, which includes the Central Directorate, subordinatedregional offices, the security service of the Crimean Republic,military counter intelligence, military units, as well as training,research and other specialized branches of the USS (Article 9). TheLaw does not determine what kind are the military units and whatis their function. Besides, the bodies and subdivisions of theUSS can be created, for the sake of state security, at certainstrategic objects and territories, and in military units.

According to Article 10 the USS Central Directorate includes theapparatus of the USS chairman and functional subdivisions, such asintelligence service, counter intelligence, military counterintelligence, national state guard, struggle with corruption andorganized crime, information and analysis, operational and technical,operational documentation, crime investigation, governmentalcommunication, personnel department, administration, financial,medical and others, according to the USS structure determined bythe President of Ukraine.

Article 16 of the Law permits the USS to establish contacts withsecurity organs of foreign states. According to Sect.4.17 of the’List of information items considered state secrets’, any informationon the status, results and prospects of the USS cooperation withspecial services of foreign powers belongs to state secrets.Nonetheless, civil officers often speak in mass media on the USScooperation with Interpol, CIA, etc.

Article 24 lists the USS duties, and Article 25 lists the rightsgiven to the USS bodies and members. In our opinion, the Law containsseveral contradictions, of which we shall mention here only two(others will be considered in the report on the restrictions ofcitizens’ right and liberties during operative and search actionsconducted by the USS).

1. Although the USS duties include finding out, suppression,disclosure and investigation of crimes within the USS competence(Article 24, Sect.3), and Article 25 Sect.5 grants a right tothe USS to have jails for keeping there detained and arrestedpersons, the Law does not mention that the USS has the right todetain and arrest the suspects and the accused. In the Law ’Onmilitia’, for example, this right is described in tiny details.In the considered law there is neither a reference to the Law’On militia’ (although it is done relative to the procedures ofkeeping, carrying, using firearms and other special tools andsubstances) nor to any other legal acts. The indeterminacyrelative to detainment, arrests, terms of keeping in the ISSjails can lead to a complete loss of control over the USSactions. The Constitution of Ukraine adopted in June 1996,Article 29, makes it possible to require the observance of legalnorms of detainment and arrest from the USS.

2. Article 25, Sect.1 of the Law grants the right to the USS torequire from citizens and civil servants to cease actions that impedethe USS activities and check in this connection identificationdocuments, as well as search people, their luggage and theirtransport, if there is a chance of an escape of a suspect ordemolition (hiding) of material evidence of criminal activity.However the Law states nothing about what proof of the suspicionthe USS-men must produce in such cases. Even the mere showing ofthe ID by the USS-men is not mentioned. Nevertheless Article 36of the Law requires from citizens and civil officers to obey thelegal demands immaculately, while disobedience implies thesanctions determined by laws.

The most declarative statement of the Law is the right of theUSS-men not to obey orders, commands, instructions andrecommendations of the USS Central Directorate if these orders,etc. contain anticonstitutional restrictions of citizens’ rightsand liberties or enhance additional,not stipulated by law rightsfor the USS bodies and members. Simultaneously Article 10,Sect.1 demands unconditional execution of orders of the CentralDirectorate. However, according to Article 35, the USS-men taketheir own decisions within their rights and must reject anyorders, commands and instructions contradictory to the operatinglaws. For such illegal actions or inactions they must bepunished in the disciplinary, administrative or criminal way. Itis very problematic that such statements of the law will beobeyed, since the USS is a paramilitary organization wheresubordinates obey their superiors.

4. OVERSIGHT OF SECURITY SERVICE ACTIVITIES

Part 6 of the Law ’On security service of Ukraine’ treats thecontrol and oversight of the USS activity. The oversight ofobedience and application of laws by the USS is a duty of theGeneral Procurator of Ukraine and procurators empowered by him.The USS activity is controlled by the President of Ukraine andstate bodies empowered by him (Article 33), as well as by theCommission of the Supreme Soviet on Defence and State Security.

According to Article 32 the President appoints senior civilofficers whose duty is to monitor the operative andinvestigation activities of the USS bodies and subdivisions andto control resolutions, orders, decisions, commands andinstructions with the purpose of preventing violation of theconstitutional rights of citizens, operating laws and theConstitution. The rights of the appointees and the legalguarantees of their activities are governed by the Instructionapproved by the President of Ukraine. The USS shall regularly,following the order determined by the President, inform him andmembers of the National Security Council and the above-mentionedappointees on the main facts of their activity and of all thecases of violation of the operating laws, or hand to them, ontheir request, other information. The USS Chairman hands awritten report on the activities of his organization to thePresident of Ukraine annually, and he is fully responsible forthe objectivity and completeness of the information, as well asfor handing it in the proper time. A similar report is handedto the Supreme Soviet. Besides, according to Article 31, theUSS Chairman regularly informs the Supreme Soviet, the Presidiumof the latter and the Commission of the latter on Defence andState Security; his information pertains to the USS activity,state security, obedience of the operating laws, guarantees ofrights and freedoms and similar questions. Besides, the USS mustrespond to requests of permanent and temporary commissions andmembers of the Supreme Soviet according to the procedureestablished by law.

Article 33 states that the control over administrative andfinancial sides of the USS activity is carried out according tothe procedure established by the President of Ukraine.

Nothing more is said about the control and oversight of the USSactivity in the Law. It seems certain that the USS actspractically without control or, at least, the public knowsnothing about this control. Yearly reports of the USS or someopen information from these reports have never, as far as weknow, published. The officials appointed by the President tocontrol the USS activity are not known, as well as theInstruction determining their rights. It is also unknown ifanyone anywhere tried to get such information. The genetic fearbefore the almighty security body is typical, as before, to theoverwhelming majority of Ukrainian citizens; the civil societyin Ukraine is very weak and, as far as we know, the civilcontrol of the special service activities in Ukraine has neverbeen seriously attempted. Any legal prerequisites for suchcontrol are absent, the Ukrainian Constitution does not mentionany public oversight of the activity of any state bodies. TheUkrainian Law on the ombudsman (in the Constitution he is calledthe Commissioner of the Supreme Soviet on human rights) has notbeen adopted, and it is not clear whether this Law will enableNGOs to influence the state bodies via the ombudsman. There areno newsmen who systematically write on special serviceactivities. As a result of the primary analysis of the Ukrainianpress we can name only Oleg Eltsov from the informative agencyUNIAN, who several times printed analytic articles on specialservices.

One can judge how efficient is the parliamentary control of thesecurity service activities if one considers the personalcomposition of the Commission on Defence and State Security. Outof 27 members (the data of 1 March 1995) 15 are military, bothretired or in active service, including Major A.A.Skipalskiy,the Chief of the Main Directorate of military intelligence ofthe Ministry of Defence, General-Major V.S.Muliava, DeputyMinister of Defence, Vice-Admiral B.P.Kozhin from the staff ofMinister of Defence, General-Major A.S.Ignatenko, Commander ofAcademy of the Armed Forces of Ukraine, and the like.O.I.Chernousenko, the Deputy Chairmen of the Commission, beforehis election to the Supreme Soviet was the Deputy Chief ofKharkov City USS department. It should be noted that theChairman and the Secretary of the Commission are members of theSocialist party, and that eight members of the Commissionincluding two Chairmen (out of three) of subcommissions aremembers of the Communist party. By the way, it is known whatonly one of the three subcommissions must do: that is asubcommission on military-industrial complex. The laws ofUkraine forbid deputies of the Supreme Soviet to be on stateservice, this is directly stated in Article 78 of theConstitution. However, many deputies of the Supreme Soviet,including members of the above-mentioned Commission, continue toserve in the executive power bodies and be deputies of theSupreme Soviet.

Address of the Commission on Defence and State Security: 6-8Bankovaya St., room 510, Kiev, 252011, tel. 291-52-08, 291-51-02;

Chairman - Mukhin Vladimir Vasilyevich.

What concerns the cases of prosecutions of special services bycitizens, we do not know of such cases. Perhaps, there were no such cases at all. Nonetheless, one trial should be mentioned. A member of our organization acted as a public advocate in thecase of Andrey Klimenko, who disarmed a drunken man brandishinga pistol and demanding from a shop girl beer of some brand thatwas not on sale. The drunk appeared to be an USS ColonelChevychalov V.M. He later prosecuted Klimenko for battering andtaking away the service pistol. A.Klimenko was condemned forassault and battery for three years. During the trial someinteresting facts surfaced.

Chevychalov Viacheslav Mikhaylovich, an USS Colonel, served inthe Kharkov USS Directorate since 5 March 1992. Next January theunit, where he served, was reduced and he was sent to the staffof the central directorate. Nevertheless the unit somehowretained the address (71 Mironositskaya St., Kharkov) and aservice car. Chevychelov carried on himself a pistol ЏЊ givento him by the USS and the expired ID XA NO177, which he gaveback to the USS Kharkov Directorate only on 16 October 1996.According to a response of the saving bank (ѓ®бваг¤бЎҐаЄ бб ),Colonel Chevychalov V.M. retired on a pension since January1994. Being asked by the judge, how he got salary,being apensioner, Chevychalov answered that his work was secret andconsisted in the struggle with organized crime, and that he gothis pension as his salary. The request on the existence of suchsecret organization was answered 24 July 1995 by V.Okhrimenko,Deputy Chief of the Personnel Directorate, in which theexistence of such organization was negated; Okhrimenko wrotethat parallel, unmentioned by Ukrainian laws, USS organizationsfor struggle with organized crime do not exist. At the sametime, S.E.Kucherina, the Chief of the really existing unit whereChevychalov served, declared at court that their unit was secretand subordinated to the General procurator’s office. TheGeneral Procurator’s office did not respond to the court’srequest.

Thus, if silence is means consent, then the General Procurator’sjffice has within its structure a special unit not stipulated byany operating laws, first of all, by the Law "On procurator’soffice"and this unit is known to none, even the USS. Then what canbe said about the highest oversight of laws by the procurator’soffice?

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