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June 3 Letter to the Members of the Verkhovna Rada of Ukraine

07.06.2021    source:
We, the co-signatories of this letter, are writing to share with you our concerns about the ongoing reform of the Security Service of Ukraine (SSU).

To: President Volodymyr Zelensky,
Cc: MPs (Mariana Volodymirivna Bezuhla, Oleksandr Serhiyovych Kornienko, Davyd Heorhiyovych Arakhamia)

Dear Mr. President,

Dear Members of the Verkhovna Rada of Ukraine,

We, the co-signatories of this letter, are writing to share with you our concerns about the ongoing reform of the Security Service of Ukraine (SSU).

We urge you to address these concerns before the draft law 3196-D “On the Security Service of Ukraine” is adopted in its final reading, to help ensure that security service reform is meaningful, adheres to international human rights standards, and in fact advances and strengthens Ukraine’s democracy.

While we welcome the ongoing initiative to reform the SSU, which Ukraine’s partners and allies have long urged the government to undertake, the draft law contains provisions which could potentially be detrimental for human rights and as such squander this long-coming opportunity for reform.

The reform process was initiated to streamline the SSU, strip it of law-enforcement functions and transfer them to other law enforcement bodies. However, it is our view that the bill in its current version (as of June 2, 2021) has not erased overlapping responsibilities and powers assigned to both the SSU and other intelligence and law enforcement agencies.

The current bill not only does not achieve the goal of streamlining the SSU’s work, but also provides the SSU with overly broad powers in both intelligence and law-enforcement spheres, while lacking essential necessary safeguards against abuse of these powers. For example, the proposed provision to gradually phase out the SSU’s pre-trial investigative functions by 2023 is not supported by a clear roadmap that would avert an indefinite process. 

It is our view that the most problematic provisions of the bill stem from two issues:

• lack of clarity/properly defined powers and roles;

• the maintenance or strengthening of regulations that jeopardize human rights and fundamental freedoms.

Lack of properly defined powers

The latest available version of draft law 3196 does not eliminate the SSU’s law-enforcement functions. It extends the scope of the SSU’s activities beyond the protection of national security by providing the agency with a vast mandate to investigate a potentially wide variety of crimes. This is deeply problematic in light of serious, credible allegations by Ukrainian anti-corruption and human rights groups of SSU involvement in corruption, corporate raiding, and interfering with anti-corruption investigations undertaken by other state agencies.

The draft law introduces the notion of “national security” without defining it, instead stating that “Other terms in this Law are used in the meaning given in other laws of Ukraine” (Article 1.2).

The term “state security” is used primarily throughout the document and makes up part of the definition “threats to state security – phenomena, trends and factors of a non-military nature that make it impossible or difficult or may make it impossible or difficult to protect state sovereignty, territorial integrity, democracy constitutional order, and other national interests” (Article 1.1).

Inconsistencies surrounding the usage of terms “state security” and “national security” throughout the draft could give the SSU an expanded and amorphous role that would leave the door open to arbitrary interpretation.

Provisions concerning fundamental freedoms and human rights

The draft law retains the SSU’s powers of arrest, seizure, detention, interrogation, and surveillance, without clear oversight. Provisions in Articles 18-22 of the draft law, governing the use of coercive measures (physical force and the use of non-lethal “special means” and lethal force), allow the SSU much greater scope to use these measures than other law enforcement agencies. We are concerned that such a wide scope for using coercive force could lead to failure to ensure force is only used in a strictly proportional manner as outlined in international human rights norms.

While Article 7.2 of the draft reiterates the absolute prohibition of torture and ill-treatment in detention, the draft does not provide sufficient protections to prevent abuses in detention or guarantee due process for those in SSU custody. For example, there is no explicit provision requiring the SSU to ensure a detainee has a lawyer, from legal aid services if necessary. Such protections are needed particularly in light of credible allegations of SSU’s involvement in past abuses. HRW and other international human rights groups have extensively documented arbitrary, prolonged, secret detention of civilians, and torture and ill-treatment by the SSU. Therefore the fact that the draft provides detainees would be held by the SSU themselves without a third party to provide oversight of treatment gives rise to serious concerns. 

Paragraph 11 of Final and Transitional Clauses of the draft law provides that: “Until 1 January 2023, the Security Service of Ukraine can have specially designated places (temporary detention facilities) for temporary detention of persons detained in the manner prescribed by the Law during the performance of tasks and functions by the Security Service of Ukraine.” We are concerned that this provision is not supported by a clear roadmap that would ensure this deadline is met.

The security services of many states around the world operate temporary detention cells. However the SSU’s past involvement in secret detention, should lead to practical, enforceable safeguards being incorporated into the draft to help ensure such abuses are not repeated.

The bill authorizes the SSU to block websites and gain access to databases (Article 11.1 7) and Article 11.1 12), while Article 13 provides extraordinary access to online financial or personal communications and the authority to collect and store public and private information about individuals and institutions. For example, Article 13.4 2 allows the SSU to receive, without a judicial warrant, “information from banks, depository, financial and other institutions, enterprises and organizations, regardless of ownership, about transactions, accounts, deposits, transactions of individuals and legal entities.” The draft highlights the SSU’s collection prerogatives, including to “receive, retrieve and process information, create and use databases and data banks, information arrays, information and information telecommunication systems, Internet resources, maintain operational lists.”

The draft legislation also proposes, via suggested amendments to the law of Ukraine “On Combating Terrorism,” to provide the SSU with “direct access to stationary and mobile systems and radio control, audio, video and audio / video surveillance devices, automated information, reference systems, accounting, registers, banks or databases, documents, other tangible media belonging to or in use of state bodies, local governments, formed in accordance with the law military formations, state enterprises, institutions, organizations, and/or that belong to individuals, legal entities of non-state ownership.”

The draft legislation empowers the SSU to enter public and private premises, without explicitly requiring a court order. The proposed amendment to Article 7 of the Law on “Counterintelligence activities” authorizes the SSU “to enter the premises and land plots of individuals with the consent of owners or possessors, including without disclosing their affiliation with the Service security of Ukraine and the real purpose of such measures.”

Public oversight

Public oversight of security services is a core feature of a strong democracy. The draft legislation in its current form does not clearly specify which information the SBU is required to provide as part of the oversight process and does not set out sanctions for not submitting information or submitting false information as part of the oversight process. Lack of effective oversight process may enable security services to refuse to share information about their activities that are subject to allegations of human rights violations thereby impeding effective investigations and undermining the right of victims to an effective remedy, violating human rights obligations. 

Article 9 of the draft law provides for the establishment of the SSU advisory collegial body, but it is not clear what control it would exercise over the organization and what powers it would possess. There is a strict deadline for submission of the annual written report of the SSU, but there is no sanction if the document is late or not submitted. One of the provisions allows the head of the security services to decide which information it will provide to parliament for oversight purposes.

We urge you to ensure that the bill will not advance further until these concerns are addressed. We also hope you will consider submitting the bill for review with European Commission for Democracy through Law (Venice Commission). 

The SSU reform is long overdue. Ukraine’s leadership is right to seize the opportunity to advance reform now. But it also should not squander the opportunity to adopt a bill that adheres to the stated vision of limiting the role and powers of the SSU and that upholds Ukraine’s international obligations and respects fundamental rights and freedoms.

The organizations signing on to this letter:

Human Rights Watch
Center for Civil Liberties
Anti-Corruption Action Center
Ukrainian Legal Advisory Group
Kharkiv Human Rights Protection Group
Ukrainian Helsinki Human Rights Union
Association UMDPL
Anti-corruption Research and Educational Center of NaUKMA
Association of Jewish Public Organizations and Communities of Ukraine
Truth Hounds NGO
Human Rights Center ZMINA
No Borders Project
Centre Of Law Enforcement Activities Research
Crimean Human Rights Group
Insight Public Organization
The CHESNO Movement 
All Ukrainian Association “Automaidan”
DEJURE Foundation
Civil Alternative
NGO “Ukraine needs you”
Public Organization People’s Defense
NGO “Active Citizen Position”

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