The Bill on SBU is unacceptable, it should be buried
As it is known, there are five stages in each work: noise, confusion, search for the guilty, rewarding the innocent, punishing the innocent. In my opinion, the SBU reform, remains on the second stage for more than 10 years already.
On May 17, the head of the work group of the profile parliamentary Committee on National Security, Defense and Intelligence, Maryana Bezugla, published on her FB page for receiving the final observations the bill No. 3196-д, prepared for the second reading (in the form of barely legible copies of each of 114 pages, although the members of the work group received a regular text document – such a subtle bullying!). The Committee has to examine it within a week, and its adoption in the session hall is scheduled for early June. So how were more than 2.5 remarks to the edition of the bill adopted in the first reading taken into account?
The answer is simple: the possibility of SBU to apply to the CEC to eliminate a political party or individual candidates from the election process and to the National Council on Television and Radio Broadcasting to revoke the license of a television and radio organization has been removed. That is all, other changes to the bill for the removal of potential violations of human rights; refusal to extend the powers of SBU in the area of life where it is not currently legally present, including the refusal to duplicate the powers of other security bodies; improvement of the mechanisms of control over the activity of SBU, were essentially disregarded. However, there are amendments that further aggravate it (what could be worse though?!).
For example, in Article 11 on the powers of the SBU, paragraph 41 appeared, it authorises the SBU “to have specially allocated places for temporary detention of persons detained in the manner prescribed by law, during the performance of tasks and functions by the Security Service of Ukraine (temporary detention facilities)”. This directly contradicts the declared waiver of the pre-trial investigation function, as counterintelligence does not require ITT! Instead of liquidating the existing illegal detention centres as the human rights activists suggested, the bill legalizes them, turning them into torture chambers, since it violates the known international standard: the arrest of the suspects is carried out by one body, the detention – by another.
Another example: the norm about the application of coercion measures, physical influence (force), special means and firearms by the representatives of SBU. Essentially the bill copies the relevant provisions from the Law “On National Police” and adds the new provisions: to use “Devices for firing cartridges equipped with non-lethal rubber or similar metal shells”, as well as “armored vehicles and other special (specialized) vehicles”. And on top of it all: “Independent manufacture and use of a small-sized blasting device for opening premises by an employee of the Security Service of Ukraine is allowed”. What a surprise! These norms obviously contradict the declaration of refusal of pre-trial investigation of crimes, because counter-intelligence simply does not need many of these powers. And the bill for the second reading does not contain the restrictions for the application of coercion, force, special means and firearms, provided by the law “On the National Police”! With the adoption of the bill No. 3196-д SBU will be the law enforcement body with the widest powers in Ukraine concerning the use of coercion and force.
Actual ignoring of human rights
What about respecting other human rights? Can the appearance of Article 14 in the bill for the second reading be considered a response to the remark that under the bill the SBU officer is not burdened with the need to present himself as a police officer or a fighter of the National Guard, is not obliged to report, as they do, the detention to the Free Legal Aid Centres and respect the detainee's right to inform relatives about the detention, as well as the violation of a number of other human rights? I believe that it cannot. Article 14 states: “The grounds and procedure for temporarily restricting the rights of persons to liberty and personal inviolability, privacy of correspondence, telephone conversations, telegraph and other correspondence, as well as the right of persons to inviolability of home, family and private life while performing tasks are determined by the Constitution and laws of Ukraine”. Thad declaration is not enough, moreover, all the powers of the SBU, the exercise of which will lead to violations of the human rights referred to in Article 14, have remained, despite the suggested changes to either deprive SBU of those powers, or put their implementation under judicial control
Thus, SBU counter-intelligence officers will be:
to carry out controlled movement of persons and/or movement of objects across the state and customs border of Ukraine;
without disclosing their affiliation with the SBU and the real purpose of such measures to conduct surveys of persons with their consent and obtain information from them, enter the premises and land of individuals;
to temporarily restrict access to certain information resources;
to collect and study documents and information that characterize the activities of enterprises, institutions, organizations, as well as the lifestyle of individuals, sources and amounts of their income; to receive technological and other information on the functioning of networks from telecommunication operators and providers;
freely enter and stay on the territory and in the premises of public authorities and other state bodies, their structural subdivisions, local self-government bodies, enterprises, institutions and organizations, regardless of the form of ownership.
Counter-intelligence measures are performed “solely for the purpose of prevention, timely detection and cessation of intelligence, subversive, terrorist and other encroachments on the state security of Ukraine, obtaining information in the interests of the state security of Ukraine”, meaning that the grounds are simply limitless, considering that the definitions of “state security”, threats to it and other key concepts have remained the same, – inaccurate and vague. The court’s permission is required for such measures as surveillance of a person and place, audio, video surveillance of a person and a place, obtaining the information from telecommunication and electronic information networks, covert searches, covert control of correspondence and others. This permission is issued by the Head of the appellate court within whose territorial jurisdiction the Central Office or the regional body of the Security Service of Ukraine is located, or by the authorized deputy Head of the court. The bill clarifies for the second reading: in urgent cases, the permit is issued for 7 days, during which the operational unit will prepare a list of necessary documents and apply to the court. But the court can provide permit for the counter-intelligence activities “urgently, but no later than six hours” from the moment of receiving the petition for permit “with involvement of the person who filed the petition”. In this case, the judge may refuse to grant permission only in case of violation of territorial jurisdiction. There was a separate letter from the Supreme Court regarding such a procedure, but its remarks were ignored by the legislator. In my opinion, the procedure of providing a permit is non other than mockery of judiciary.
Thus, counter-intelligence, which is removed from the scope of the Law on Operational Investigation Activities providing at least some guarantees against abuse, receives unprecedented powers, which it uses at its discretion. At the same time, the new counter-intelligence units, which will carry out counter-intelligence support of economic potential and fight against organized crime, will fully take over the activities of the SBU departments that are being liquidated - to investigate corruption and economic crimes. The SBU categorically does not want to give up control over the economy.
It seems that the authors of the bill understand counter-intelligence as the same investigation of crimes and prosecution of criminals and despite all the declarations create a new SBU as a powerful law enforcement body. This conclusion is confirmed by the provisions of the bill, in which the SBU takes over the powers of the Foreign Intelligence Service, the National Police, the State Bureau of Investigation, the Ministry of Defence, the State Migration and State Border Services, anti-corruption and other government agencies. Despite criticism from both Ukrainian and international experts and proposals to eliminate duplication of powers, all these norms remained in the bill for the second reading.
Uncontrolled monster with unlimited powers
In fact, other provisions of the bill concerning the powers of the SBU in new areas of activity have also been preserved.. Thus, the SBU gets legal access to banking secrecy, will control the agreements concluded within the framework of public-private partnership, the concession of state-owned objects. Without the consent of the SBU, it will not be possible to appoint civil servants of categories “A” and “B”, in particular, prosecutors, except for the Prosecutor General. What prosecutorial supervision over the legality of the SBU's actions is possible after that? The question is a rhetorical one. However, the prosecutor's supervision over the legality of counter-intelligence activities is abolished by the bill anyway.
The suggested change on cancellation of a possibility of business trip of the employees of SBU to other state bodies, to institutions and organizations irrespective of forms of ownership, for work under cover, is also disregarded. This practice is very similar to the activities of the KGB in Soviet times with its comprehensive control of everything that moves.
SBU receives a new power: to receive free of charge within five work days “in the established order the information from law enforcement bodies and other state bodies, military formations, local governments, enterprises, institutions and organizations” regardless of the form of ownership. The subject of information is not defined. What is this but means of putting pressure on other government agencies, on business? Obtaining the information on the activity of SBU is quite hard: certain information (which is not defined), obtained or created in the course of operational and service activities of the SBU (i.e, virtually all information) is published through the media or otherwise by decision of the Chairman of the SBU and in the manner prescribed by the SBU. Such “awareness” can only create the illusion of control over the activities of SBU.
Such asymmetry (SBU - everything, society - nothing) is generally characteristic of the bill No. 3196-д. For example, the SBU participates in measures of state control over international transfers of military and dual-use goods, but the activities of the SBU in this area will not be controlled. The SBU will be able to use information, data or other personal data about a person contained in the Unified State Demographic Register, while the bill 3196-д prohibits to provide the individuals with information about the recipients of their personal data. However, information on the income of SBU employees is closed, even to the senior management of the Service, which is unacceptable by international standards. Also closed is the information on SBU expenses, which is secret, which makes it impossible to control the SBU's activities.
Civil control over the activities of the SBU according to the bill will be carried out by the “temporary advisory body - public council at the Security Service of Ukraine. The number, requirements for members of such a public council and the procedure for its work shall be determined by the Head of the Security Service of Ukraine”. The Council is formed by the Central Office of SBU by the Head of SBU “at the proposal of public organizations with all-Ukrainian status, the statutory tasks of which include the implementation of advisory, expert or other assistance (contribution) in the field of national security of Ukraine”, and its members are obliged to pass the same verification as persons appointed to responsible and especially responsible positions in the authorities and the SBU and to pass a counter-intelligence survey. And what control will this council created by the Head of SBU carry out? None, it will only play a decorative role!
Conclusions
The bill No.3196-д in the edition for the second reading concentrates excessive uncontrolled power in the hands of the Security Service of Ukraine. Extremely inaccurate and vague definitions of some basic concepts leave a lot of room for abuse. Despite the declaration of refusal of pre-trial investigation, the SBU is in fact becoming a powerful law enforcement body with much greater powers than other security bodies, which receives levers to control the activities of all other state bodies. Many powers of the SBU duplicate the powers of other state bodies, creating competition for security bodies. At the same time, the SBU itself remains uncontrolled and unpunished. The powers of the SBU grossly violate human rights, in particular, the right to liberty and personal inviolability, the right to privacy, the right to property and others.
In general, the list of shortcomings of the bill can go on and on. They are so significant that fixing them does not seem possible. The bill 3196-д is unacceptable on a paradigmatic level, it must be buried and a new one prepared in partnership with foreign experts.
Finally one remark. We have heard many arguments that we have an armed conflict and we need a strong secret service, and we should not listen to the advice of Western experts on demilitarization, downsizing, abandonment of pre-trial investigation. However, the actual use of old Soviet rudimentary practices of OSO/NKVD/KGB in the bill, the creation of a special service full of Soviet mottos “Personnel is the key to everything”, “Bodies do not make mistakes”, “If the enemy does not give up, it is destroyed”, drags Ukraine back, and should significantly disappoint our North Atlantic partners.