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21.02.2017 | Yevhen Zakharov

Ukraine’s Security Service and Human Rights

   

  1. Some general issues

At present the Security Service of Ukraine [SBU] is at the same time a security service and a law enforcement body.

Nowhere in the civilized world do security services carry out law enforcement activities. Their purpose is to gather information within the framework of competence defined by law.

According to Article 1 § 1 of the Law on the SBU “The Security Service of Ukraine is a state law enforcement special purpose body which safeguards Ukraine’s state security”.

A considerable number of the SBU units carry out law enforcement functions linked with defence of national security, fighting terrorism, corruption, organized crime, smuggling, drug selling, economic crimes.

The above-mentioned powers effectively duplicate the functions of other law enforcement bodies.

This dualism needs to be eliminated, by taking away from the SBU functions regarding detective inquiry and pre-trial investigation and other law enforcement powers in the above-mentioned spheres.

For this, amendments need to be made to the Criminal Procedure Code, the Law on the Security Service of Ukraine, the Law on the Overall Structure and Staff Size of the Security Service of Ukraine, the Law on the Principles of Prevention and Countering Corruption, and others.

It should be noted that the reform of the SBU in 2008-2009 was intended to move this centaur towards a modern security service. The legal foundation for changes to the SBU were the Concept for reform of the Security Service of Ukraine and the Comprehensive Target Program for Reform of the Security Service of Ukraine, passed by decisions of the Council of National Security and Defence of Ukraine and brought into force by Presidential decrees from March 20, 2008 and March 20, 2009, respectively.

However, after the 2010 presidential elections, those documents were rejected, and Law 2592-VI from October 7, 2010 was passed.

This Law was aimed at bringing a number of laws into compliance with the 1996 Constitution after the adoption of the Constitutional Court Judgement of 30 September, 2010, including amendments to the Law on the SBU.

Let us consider these amendments.

Article 1 § 2 of the Law on the SBU declared that “The Security Service of Ukraine is subordinate to the President of Ukraine and under the control of the Verkhovna Rada of Ukraine”.  Control of the VRU over the activities of the SBU is no longer even declared.

The Head of the SBU and his deputy are appointed and dismissed by the President now without any participation of the Verkhovna Rada (Articles 13 §§ 2 and 3 of the Law on the SBU in the version passed in Law No. 2592-VI).

The same applies to the SBU collegium: Article 14 § 3 now reads as follows: “The collegium is made up of the Head of the Security Service of Ukraine, his deputies and other persons, except National Deputies of Ukraine, appointed by the President. The membership of collegium members in parties, movements, other civic organizations with political aims, in accordance with Article 6 of the Law ceases”.

The heads of divisions of the Central Department of the SBU are now also appointed and dismissed by the President at the submission of the Head of the SBU )Article 15 § 1 of the Law on the SBU).

Item 16 of Article 24 ‘The Duties of the Security Service of Ukraine’ with amendments in accordance with Law No. 2592-VI now vests the SBU with the duty “to carry out on the instruction of the President other tasks, directly aimed at safeguarding the internal and external security of the state”. What these ‘other tasks’ may be is not specified. We would note that the wording “other actions”, “other tasks”, “in other cases”, after a list of lawful grounds makes it possible to extend the boundaries for interference by the state body in this or that sphere and poses a threat of human rights violations.

Law No. 2592-VI from 7 October 2010 largely rendered meaningless the content of Article 31 ‘Answerability to the Security Service of Ukraine”.

Previously, in accordance with that Article, the Head of the SBU had to regularly inform the Verkhovna Rada, the Presidium of the Verkhovna Rada and its commission on issues of national security and defence on SBU work, the situation with state security, observance of current legislation, protection of human rights and liberties and on other issues.

The SBU is also obliged to answer to formal requests from permanent and temporary parliamentary [Verkhovna Rada] commissions and National Deputies [MPs] according to the procedure established by legislation.

In Law No. 2592-VI a VRU profile committee is not mentioned at all, and Article 31 reads as follows:

“Constant control over the activities of the Security Service of Ukraine and its observance of legislation are carried out by the Verkhovna Rada.

The Head of the Security Service of Ukraine annually provides the Verkhovna Rada with a report on the work of the Security Service of Ukraine”.

Thus, Law No. 2592-VI from 7 October 2010 effectively removed parliamentary control over the activities of the SBU which had already been extremely weak.

The annual SBU reports or even any open information from these reports, as far as we are aware, are not published. Nor is anything known about the activities of the officials specially appointed by the President to oversee the activities of the SBU.

Norms which define their powers and the legal guarantees for their activities.

It seems undoubtedly the case that the SBU functions virtually uncontrolled, or at least the public know nothing about any control.

Incredibly enough, after the Revolution of Dignity no amendments were made to the Law on the SBU.

The SBU therefore continues to work according to the law re-worked in 2010 for the Viktor Yanukovych regime and all the above directly affects it.

Nor were the failings removed of the Law on the SBU which we had frequently written about which meant that some of the actions of SBU employees were unlawful.

That applies to the following infringements

1. Although SBU duties include discovering, stopping, investigating and solving crimes falling within SBU competence, as well as detective and criminal investigations into these cases and searching for people in hiding in connection with the crimes (Article 24 Item 4), the Law makes no mention of any right to detain or remand suspects or persons accused of a crime in custody.

The Law on the National Police, just as the previous Law on the Police which was in force until 7 November 2015, regulate this right in great detail.

The Law on the SBU has no reference either to the Law on the Police (as it does with respect to the procedure for storing, carrying, or using weapons and other special means) or to any other legislative acts. However since both detention and remanding in custody are used very widely by the SBU, these are probably regulated in closed departmental instructions.

Yet Article 57 of the Constitution states that “Laws and other normative legal acts that determine the rights and duties of citizens, but that are not brought to the notice of the population by the procedure established by law, are not in force. “

The lack of regulation of detention and arrest in an open parliamentary act is a violation of the principles of law and can lead to the actions of the SBU being totally uncontrolled.

2.  Article 25 Item 5 of the Law gave the SBU the right to have pre-trial investigation units for holding people detained or remanded in custody by SBU bodies. However Law No. 488-IV from 06.02.2003 removed this item and therefore the existing pre-trial investigation units ]hereafter SIZO] of the SBU are functioning illegally.

In Kyiv the SBU SIZO is at No. 36 Askold Lane. Major renovations were carried out in 2009 and the unit meets European standards.

People whose investigation is being run by the SBU or Prosecutor General’s Office are held there, as well as persons detained by SBU bodies before being sent to the Lukyanivksk SIZO. This unit effectively serves as a temporary detention unit, however some people remanded in custody by a court are held here and not in Lukyanivsk SIZO.

The lack of regulation for detention, arrest and remand in custody at the SBU SIZO is a result of the double role of the SBU whereby it combines the functions of a security service and law enforcement body and leads to illegal activities in this sphere.

3.  Article 25 Item 1 of the Law on the SBU gives its bodies and staff the right “to demand from citizens and officials to stop offences and actions which obstruct the Security Service carrying out its dues; to check in connection with this identification documents, and also carry out a search of the persons, their belongings and vehicles if there is a risk that a suspect will flee or destroy or conceal material evidence of criminal activities”.  Nothing, however, is said about the SBU staff providing these persons with evidence of the threat in connection with which such actions are being carried out. Even the usual demonstration of a document identifying the person is not envisaged for the SBU official carrying out such a search. This is while Article 36 of the Law makes it mandatory for members of the public and officials to carry out the demands of an SBU officers, and disobedience or resistance to legitimate demands carries liability as envisaged by legislation.

4. The Law gives SBU officials the right to not carry out instructions, orders, directives, etc. from the Central Department of the SBU (Article 10) if they contain unconstitutional restrictions of citizens’ rights and freedoms, or additional powers of bodies and officials of the SBU which are not envisaged by legislation.  According to Article 35, SBU staff independently take the decision within the framework of their powers and should refuse to carry out any orders, instructions or directives which are in breach of current legislation.  They bear disciplinary, administrative or criminal liability for illegal actions or failure to act. Implementation of these provisions of the Law seems problematical since the SBU is a militarized organization which envisages subordination to the orders of those with higher rank, and in the first paragraph of that same Article 10 it is stated that these must be carried out.

2.  INFRINGEMENTS OF HUMAN RIGHTS BY THE SBU IN 2014-2014

2.1  Infringements during detention, arrest or remand in custody

Judging by the appeals received by human rights groups and the Human Rights Ombudsperson, one can see that SBU officials (this applies also to the bodies of the prosecutor’s office, police bodies, and from 2016 the National Police) have begun widely applying detention without a court order specifically in cases which are not envisaged by Article 208 of the Criminal Procedure Code [CPC].

For example, the people whom the appeals were about and who had been detained without a court order were suspected of committing offences several months or even several years prior to their detention. In other words, in cases where, according to the current CPC, the detention had to be carried out as per general procedure, namely on the basis of a court order, and not according to the procedure envisaged by Article 208 of the CPC.

There is systematic and widespread violation by SBU officials of the right to legal assistance which is guaranteed by Article 59 of the Constitution and regulated by Article 213 of the CPC. In accordance with paragraph 4 of that article, the official who carries out the detention is obliged to immediately inform the body or institution empowered by the law to provide free legal aid. In the best instances this notification gets delayed.  If a lawyer is invited to provide legal assistance who is not from the Centre for Free Legal Aid, the person is simply not allowed to see the detained person.  This is a problem that KHPG lawyers constantly run up against.

The SBU constantly carries out repeat extradition arrests of people whom the courts have released. Article 584 § 13 of the CPC states that “the release of a person from extradition arrest by a court does not prevent such arrest being applied again in order to hand a person over to a foreign country in implementation of an extradition order if not otherwise specified by an international agreement””.  This means that a repeat arrest is in accordance with the CPC on condition that the release was carried out on the basis of a court order. However the SBU detains people who have been released by courts and appeal courts although the rulings of the latter are not subject to appeal. Generally speaking, repeat arrests are in violation of Article 5 of the European Convention and are inadmissible.

The detentions which the SBU carries out for the purposes of exchanging people for prisoners of war an civilian hostages held prisoner in the self-proclaimed Donetsk and Luhansk people’s republics [DNR, LNR, respectively] are totally illegal. Information about exchanges is limited and scrappy. Exchanges are carried out in conditions of secrecy and not regulated by any legal procedure. Judging from the statements and the accounts of relatives of those who are being exchanged or were exchanged and agree to provide information, the following picture emerges.

The SBU forms a so-called ‘exchange fund’ (a thoroughly revolting term!): it looks for people who are implicated in committed crimes linked with separatism, state treason, terrorism or other offenses under SBU jurisdiction, detains them and offers exchange for those held prisoner in LNR or DNR instead of criminal prosecution and long sentences. The detained person has no choice but to agree to the exchange. Then an agreement is reached with the investigators, the criminal proceedings are terminated, the people released from custody, however SBU officials are waiting for them, put them in a car and take them to an unidentified place where they are held incommunicado under the exchange is carried out. 

Sometimes the SBU offers the exchange after the investigation is over during the trial. In such cases the judge passes a ruling, without ending the court trial, with a suspended sentence with several years’ parole period, the person is released in the courtroom and she or he is similarly taking by the SBU to an unidentified place where they’re held incommunicado. There have been cases where they detained a person for exchange already after the end of the court proceedings and passing of a sentence (most often not linked with deprivation of liberty). They say that it’s impossible to turn down this offer.

We would note that the guilt of those who are being exchanged has often not been proven by the investigators and established by the court. In those cases, we are aware of the suspicions presented are often dubious or unwarranted.

Worth mentioning also that the former head of the Central Investigation Department of the SBU, Vasyl Vovk, admitted in an interview that there is such an “exchange fund”, although he asserted that people are added to it voluntarily.  “We place them in a transit point for exchange at their own request”.  It is difficult to believe in such free will.

Since one of our captives is usually exchanged for 2, 3 or more ‘separatists’ or ‘terrorists’, and according to official statistics 3,082 prisoners have been exchanged, we are dealing with around 6-8 thousand people who have ended up in the so-called DNR and LNR via exchange. It is hard to say how their fate as turned out after that.  The vast majority had a permanent place of residence on territory under Ukrainian government control, which means that they have nowhere to live or a job in the new place.  They don’t risk returning since they’re scared of ending up facing new prosecution or exchange (there is talk that there have been cases where one and the same person was exchanged twice.

It should be remembered that in June 2015 Ukraine joined the International Convention for the Protection of All Persons from Enforced Disappearances and is obliged to comply with all its norms. According to Article 2 of that Convention, enforced disappearance is regarded as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”  Under international law enforced disappearance is a crime, and under certain circumstances, even a crime against humanity.  We are forced to acknowledge that Ukraine’s Security Service has over a long period carried out enforced disappearances. It is worth also recalling another quote from this Convention (Article 1 § 2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance”.

It is unclear where exactly those arrested by the Security Service during the pre-trial investigation before the termination of the criminal proceedings or court sentence, or after their repeat detention before the carrying out of the exchange.  The two official departmental investigation units in Kyiv and Kharkiv can obviously not contain such a number of people. At the investigation stage, some of those arrested could be in SIZO, however the official statistics from the State Penitentiary Service does not show a significant increase in people held in SIZO: as of 1 January 2016 there were 580 more prisoners as compared to 1 January 2015. In our view, this increase is probably a result of an increase in crime.  Therefore, the question of where the SBU has held Ukrainian citizens during investigation or while waiting to be exchanged for POWs, remains for now without a clear or exhaustive answer. Some testimony and reports from international organizations point to cells in the SBU demands of eastern cities of Ukraine.

The UNHCR in its 14th report for the period from February to March 2016 reported that as of March 2016 they were aware of the names of 15 men and one women who were held in the Kharkiv regional department of the SBU. A list of 26 people secretly held was passed to the Ukrainian authorities by Human Rights Watch and Amnesty International.  Most of those people were released within two weeks. Examples of enforced disappearances and detention are cited in the last, 16th UNHCR report on the Human Rights Situation in Ukraine from 16 August to 15 November 2016 (pp. 33, 34, 35).  There they speak of people abducted after a court ruling releasing them being held in the Mariupol and Kharkiv regional SBU and private flats. It should be said that the SBU consistently deny such assertions.

These circumstances have led to statements from western experts, human rights activists and journalists about ‘secret SBU prisons’. It was the SBU’s refusal to show a delegation from the UN Committee against Torture its places of detention in May 2016 that led to the cancellation of the visit. The visit was reinstated in September with the delegation being shown the above-mentioned sectors for ensuring pre-trial investigation, however that does not answer the question about the whereabouts of those detained.

The secrecy of the exchange process, the lack of public monitoring over it may result in the circulation of incorrect information about this process with no possibility, because of the secrecy, of refuting it.

We understand that the SBU is forced to deal with exchanges in order to free those taken prisoner, however such a procedure can in no way be justified. Everything that happens in connection with the exchange of captives is absolutely outside the framework of the law, this is a disgraceful mechanism of pressure and political bargaining from the leadership of the Russian Federation.  The use of the fate of people taken prisoner for political purposes can be qualified as hostage-taking which according to international humanitarian law constitutes a war crime. Thus, all those who take part in such negotiations and guarantee the implementation of such arrangements can be viewed as subject to prosecution by the International Criminal Court.

2.2   Infringements during criminal investigation

The SBU are torturing defendants in order to extract confessions or force cooperation with the investigation. Previously in independent Ukraine, we did not observe such practice in the work of the SBU. In 2014-2016 there were a reasonably large number of complaints to human rights groups about torture by the SBU.  The Human Rights Ombudsperson Valeria Lutkovska has also reported torture by the SBU on several occasions. in her last annual report, it was noted that the largest number of complaints of torture had come from the SBU – 39% of the overall number of complaints of torture. The SBU was accused of human rights violations in the ATO [anti-terrorist operation] zone in 49% of complaints to the Ombudsperson in 2015.  These included alleged enforced disappearances, unlawful detention and abduction, torture, violation of the right to legal assistance, detention in inhuman conditions in places not envisaged for such.

On 21 July, 2016 a new report was published by Amnesty International and Human Rights Watch entitled “You don’t exist: Arbitrary detentions, enforced disappearances and torture in Eastern Ukraine”.  This is based on 40 interviews with victims of violence, members of their families, witnesses, lawyers, meetings with official and unofficial groups and data from other sources.  The renowned international organizations describe 9 cases of torture and unlawful lengthy detention by the Ukrainian authorities of civilians, including with enforced disappearances in unofficial places of detention, and 9 cases of torture and unlawful lengthy detention by militants from the self-proclaimed DNR and LNR.  Most of the cases were in 2015 and the first half of 2016.

Situations have been observed where in a case already initiated with respect to a particular individual, the SBU add several people from the person’s close circle to create the impression of a group. Then they can talk of a crime having been committed by an organized group by prior conspiracy and demand a more severe sentence. Sometimes this is done without any grounds for accusing other people who are guilty only of having been nearby.

A typical example is the case around Oleh Muzhchil (Lisnyk) who was shot and killed during attempts to arrest him by an Alpha unit on 10 December, 2015.  It looks like the SBU decided to make Lisnyk out to be a terrorist and saboteur who was working for the Russian security service and added three Russian citizens to the case – Anastasia Leonova; Olga Sheveleva and Pavel Pyatakov. This is despite the fact that Leonova did not even know Muzhchil, and with respect to Sheveleva and Pyatakov the investigators have not been managed in a whole year to find any proof of their guilt.  They also added the couple Olena and Valery Kukel, in whose flat Muzhil was supposed to be arrested, to their organized criminal gang although they basically had no relation to his turbulent activities.  The sixth member of the ‘organized criminal gang’ is V. from Kharkiv, at whose home a large arsenal of weapons and ammunition was found.  It should be noted that the court has released Anastasia Leonova and Olena Kukela from custody.

The fight waged by the SBU against separatism raises many questions. There is, for example, every justification in talking of violation of the right to liberty and personal security in a huge number of cases where people charged with separatism under Article 110 of the Criminal Code who did not pose a public danger and whose actions did not have grave consequences are remanded in custody in SIZO. This was the case, for example, with journalist Ruslan Kotsaba (1 year and 5 months in SIZO) which we have earlier commented on.  Kotsaba was acquitted by a first instance court on the charge of state treason (Article 111 § 1 of the Criminal Code) and by the court of appeal on the charge of obstructing the lawful activities of the Armed Forces of Ukraine and other military formations (Article 114-1 § 1). The prosecutor’s office has appealed against the ruling of the court of appeal and the case will be reviewed at cassation level. Other typical example is seen in the charges against Yury Abakumov, a deputy from the Krasnohrad District Council in the Kharkiv oblast.  He is charged under Article 110 § 2 and 263 §1 of having conversations by phone with representatives of LNR which have been interpreted as a promise to give support to a Luhansk sabotage and intelligence group.  Abakumov spent a year in SIZO, before being acquitted by both the 1st instance court and the court of appeal. Moreover the 1 bullet and 1 grenade which were kept in underwear as evidence of a weapon cupboard looked extremely odd.  One can cite many other examples of criminal prosecution for expressing separatist views on the Internet, circulating separatist publications and leaflets, with the individuals being remanded in custody in SIZO.

Yet the SBU found no elements of a crime in the actions of two officers from the management of No. 70 prison who circulated the newspaper ‘Novorossiya’ among prisoners. This is despite the fact that circulation of anti-Ukrainian newspapers on the territory of closed institutions by its heads is clearly unacceptable and should have received legal assessment.

From the point of view of the European Court of Human Rights, a key factor in assessing this or that separatist action is an answer to the question – did the accused call for the use of violence or not?  If there was a call to violence or military action or terrorism, then restriction of the freedom of expression in the form of criminal prosecution cannot be considered an infringement of human rights.  At the same time, calling the government a ‘junta’, supporting or taking part in referendums (including unrecognized ones)  or even supporting the criminalized self-proclaimed DNR and LNR, or so-called ‘Novorossiya’, if not linked with direct calls to violence or support for the military activities of the given formations may be recognized as a violation of freedom of expression if such views result in criminal prosecution.

2.3.  Violations on issues of extradition, expulsion and refoulement of foreign nationals or stateless persons

Issues linked with the granting of asylum or additional protection to foreigners have become acute in Ukraine over recent years. The State Border Service tries not to allow asylum seekers into Ukraine, and the State Migration Service often refuses to process documents for receiving refugee status. If it accepts the documents, in the majority of cases it refuses to grant refugee status. The SBU, when it hears criticism of it over these refusals always replies that these issues are out of the realm of its competence.  In fact, the border guards often consult with the SBU in unclear issues regarding people crossing the border, and the migration service is obliged to hand over the documents of each applicant to the SBU for a special check and to receive a conclusion which is almost always negative.

The situation is the same with extradition where the decisions are passed by the Prosecutor General’s Office or the Justice Ministry, forced expulsion or refoulement.  None of this happens without conclusions from the SBU, and it carries out all actions. It is the SBU that carries out extradition arrests. The SBU is also behind such unlawful actions with respect to migrants as abduction, torture, illegally returning a person or handing them over.  Furthermore, in carrying out special checks, the SBU does not consider the risk of danger to life or of torture in the country of origin, and also the likelihood of political persecution. Particularly shocking is their reluctance to see such risks for people from Chechnya, Ingushetia or Dagestan who are clearly in danger of political persecution or torture in connection with anti-extremism legislation and persecution of Salafist Muslims.

Of particular concern is the attitude of the SBU and other state bodies to people from CIS countries, in particular, Russia, who took part in the Revolution of Dignity, military action in eastern Ukraine as part of a Ukrainian volunteer battalion or who helped Ukrainian military units as volunteers. The SBU does not seem to understand the danger of political persecution faced by Russian citizens in the Russian Federation and does not take the principle on non-refoulement back at all. You would think that the SBU should understand the impossibility of returning any people fleeing the Putin regime to Russia. The very fact of having tried to receive asylum in Ukraine will lead to political persecution if people are returned to Russia.

Here are some typical examples.

Russian citizen Y. took part in the military action in the ATO zone as a member of one of the volunteer battalions. His Russian passport was lost. When he turned to the migration service to seek asylum, they told him to go to the Russian Federation (!) to renew his passport.  The migration service refused to provide Uzbekistan national R., who fought in Donbas and was injured, with a temporary residence permit in Ukraine.

Vladimir Radyuk is a Russian citizen and former military servicemen from Omsk, who under duress from the FSB was forced in May 2014 to go for military retraining to the Rostov oblast.  After that he was sent to fight against Ukraine.  He surrendered with his weapons in hands at one of the Ukrainian checkpoints. From there he was passed to the SBU where criminal proceedings were initiated against him. He was offered part in an exchange three times, but he chose Ukrainian prison rather than life in DNR/LNR. He was sentenced to three years’ imprisonment for his part in the activities of illegal armed formations and the illegal possession of weapons and is serving the sentence in the Kolychensk Corrective Colony in the Ternopil oblast.  He has recounted his story to local human rights activists and with their help he gave an interview to Hromadske TV. Radyuk applied to the migration service for asylum but was not allowed even to fill in the relevant documents. Radyuk is appealing this refusal in court. In the meantime, an extradition request arrived from Russia and the Justice Minister Pavlo Petrenko issued an order for his extradition. Radyuk lodged an appeal against this order in court and the court ruled that any extradition be deferred pending completion of the asylum procedure.  Then in the middle of December 2016 an SBU officer and a Russian military person (maybe an FSB officer?) turned up at the prison and tried to persuade him to agree to be exchanged to the self-proclaimed DNR. Radyuk categorically refused, however the Russian threatened that via Kyiv he would be exchanged against his will. It would appear that the SBU does not plan to take into account the fact that he is in the process of seeking asylum and the court ruling halting any extradition while the procedure is underway.  Yet even if he is refused refugee status, Radyuk cannot be extradited to Russia.  There he will be considered a traitor, and he can expect brutal torture and political persecution. Such actions by the Ukrainian authorities are a flagrant violation of international human rights standards – the fundamental principle of non-refoulement. You cannot extradite an asylum-seeker to his country of origin, if there he faces torture and political persecution. Would our government really be willing to hand over refugees to suffer in Russia, especially after they refused to fight against Ukraine?

Aminat Babaeva was detained on 9 September, 2016 by border guards at the crossing at the ‘Kharkiv’ Airport although there were no legal grounds for detaining her. She had been deported from Turkey because her ex-husband was suspected of fighting on the side of ISIS in Syria. Amina says that she had not seen her former husband for the past two years. In Istanbul, she taught children Arabic and the Koran.  Her friends asked KHPG to provide her with legal assistance, however the KHPG was not, in breach of the law, allowed into see Babaeva.  The SBU officials who came to the airport tried to persuade Babaeva to return to Russia, then to Belarus.  After intervention from the Interior Ministry, Babaeva was allowed into the country and checked in to a hotel. On Monday, September 12 she approached the Kharkiv regional migration service to apply for asylum. She was held there for an hour after the end of the working day, after which unidentified individuals abducted her, forcing her to get into a car and driving her away. She recognized one of the men as an SBU official called Artur, who had spoken with her at the airport. Artur took her tablet from her and did not return it.  Babaeva was taken to the Holtivka border crossing with Russia and handed over to the Russian border guards. Her belongings remained in the hotel.  The SBU posted notification on their website claiming that on suspicion of terrorism forced return had been applied with respect to Babaeva and that she had voluntarily crossed the border between Ukraine and Russia.

2.4.  Fighting ‘pension tourism’

At the end of February 2016, the SBU sent city mayors a letter with lists of displaced persons in which they asked them to consider suspending pension and social payments to persons on the lists pending confirmation of their actual place of residence and the temporary address given on their application forms.  The reason was that they do not live in the places where they are registered as internally displaced persons [IDP], but are on territory not under Ukrainian government control.  The SBU, together with the State Border Control Service determined that these persons had been on non-government controlled territory when they organized their IDP documents since there were no passes for entry from non-government-controlled territory in their database.

There were around 500 thousand IDP in the lists sent around by the SBU.

It is a priori clear that the SBU could have been mistaken with regard to people who had left and registered as IDP before 21 January 2015 when the system of electronic passes was introduced. Furthermore, many paper lists of displaced persons which were kept until the introduction of the electronic pass system were lost and the data from those lists did not end up on the database.

As a result, a large number of displaced people were forced to stand in massive queues to district departments of territorial protection for the population in order to confirm that they lived at the addresses where they were registered and get their pension and social payments reinstated. And all of those who registered as displaced persons and returned home on non-government-controlled territory after that for any reason, were deprived of their pension and social payments.

The SBU cynically reported that the special operation they had carried out had saved the state budget 3.9 billion UAH which had been supposed to pay the pensions of residents of non-government-controlled territory.  Yet the state is obliged to pay pensions earned to its citizens regardless of where they live. Such action by the SBU is pure discrimination against displaced pensioners.

3.  RECOMMENDATIONS

1.  Change the laws on the SBU, envisaging:

-  the introduction of principles of parliamentary control over the formation of the leadership of the SBU and its activities;

-  the introduction of annual reports on the work of the SBU to the committee on national security and defence issues, with publication of the open part of such reports;

-  stripping the SBU of powers regarding detective inquiry, pre-trial investigation and other law enforcement functions;

-  implementation of the principle of freedom of information, with information, not the documents themselves being classified as secret;

-  introduction of public annual reporting on depersonalized information regarding the use of wiretapping by operational units of the law enforcement bodies, the number of applications for such wiretapping, the number of permits issued; the number of prosecutions passed to the courts with the use of such data; the number of verdicts passed by courts in such cases, with the information provided separately for each operational unit.

2.  Prepare amendments and additions to the CPC, the Law on the General Structure and Staff Sizes of the Security Service of Ukraine; the Law on the Principles for Preventing and Countering Corruption, and others in order to pass law enforcement powers from the SBU to other law enforcement agencies.

3.  Implement the practice of providing the open part of documents which contain state secrets in response to information requests.

4.  Draw up a list of pieces of information regarding the exchange of prisoners which must be on open access and the forms of public monitoring (parliamentary and non-parliamentary) over the exchange process.  This list should contain the temporary addresses of people awaiting exchange. 

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