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What is next?

31.08.2021
Yevgeniy Zakharov

While Russia’s eternal questions are ”What to do?” and “Who’s to blame?”, Ukraine’s is “Where are we going?”. And although seemingly after the Revolution of Dignity that issue was finally solved and it was even written about Euro-Atlantic aspirations in the Constitution, this question still arises almost daily, for the real practice of our state-building contradicts such aspirations. It fully concerns the choice of the way of development for the national secret service (SBU) faced by the Parliament: whether or not to adopt in the second reading and in general the Draft Law No. 3196-d on the new edition of the Law “On the Security Service of Ukraine” and amendments to 33 related laws.

To refuse the Draft Law No. 3196-d as unacceptable one and prepare a new and improved draft law would mean leaving for an unknown term the old, unreformed special service, uncontrolled and unpunished, with the powers to investigate crimes that it believes the ones belonging to it, with the use of the service’s powers for its benefit and many other Soviet rudiments. Both the state and the majority of society do not want to agree with it, not sticking this time to the infamous "it is worse, but at least it is different", and therefore artificially convincing themselves that the new version is actually better.

The Western experts from the European Union, USA, NATO Liaison Office also support that view to some extent, although their observations to the project were not fully taken into account: there are no sufficient guarantees of the human rights, the control over the activity of the special service is weak, the transfer of law enforcement powers to other investigative bodies is not well thought out etc. However, they believe that it can be done later: adopting the individual laws on transfer of powers, on control etc. However, Ukrainian human rights activists mostly believe that the Draft Law cannot be adopted in such form.They are supported in this assessment by the Monitoring Mission of the UN High Commissioner for Human Rights in Ukraine.

What are the causes of such negative assessment? We have to pay tribute to the working group of the relevant parliamentary committee, which partially took into account our comments. Although not to the extent that would allow to support the project. Furthermore, taking the comments into account is often misleading. For example, a direct norm on the use of the information obtained during the counter-intelligence measures as evidence in the court was removed. But the window was left that still allows to do it. The participation of SBU in the staffing commissions was removed, but the norm of ”verification of the persons in connection with the appointment to responsible and particularly responsible positions of the state service and the positions of the state service of category „B“” was left (SBU always performed such verifications), – again, it is a window through which it is possible to more significantly affect the appointment to the state service. One could provide many such examples.

Respect for human rights in the bill was purely declarative, and remained so. Can the appearance in the wording for the second reading of Article 14 be considered a response to our remarks that under the bill the SBU officer is not burdened with the need to present himself as a police officer or a National Guard fighter, not obliged to report, as they do, the arrest to the Centres for Free Legal Aid and exercise the detainee's right to inform relatives about the detention, as well as about the violation of a number of other human rights? Under no circumstances it can! Article 14 provides: “The grounds and procedure for temporarily restricting the rights of persons to liberty and security of person, secrecy 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”That declaration is apparently not enough, moreover, all the powers of the SBU, the exercise of which potentially leads to the violations of human rights referred to in Article 14, have remained intact. And this despite our specific suggestions – either fully deprive SBU of those powers, or put their execution under reliable judicial control.

Thus, if the new Draft law is adopted, the counter-intelligence officers of SBU will be able:

to carry out controlled movement of persons and/or movement of objects across the state and customs border of Ukraine;

to conduct surveys of persons with their consent and obtain information from them without disclosing their affiliation with the SBU and the real purpose of such measures, enter the premises and land of individuals;

to temporarily restrict access to certain information resources;

to collect and study documents and information characterizing the activities of enterprises, institutions, organizations, as well as the lifestyle of individuals, sources and amounts of their income;

to receive from the operators and providers of telecommunications the technological and other information on functioning of the networks;

to enter and stay freely on the territory and in the premises of state authorities and other state bodies, their structural subdivisions, local self-government bodies, enterprises, institutions and organizations, regardless of the form of ownership.

The counter-intelligence measures are carried out “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 virtually unlimited, considering that the definition of the “state security”, the threats to it and other key notions remained the same as before, – “reliably” inaccurate and very vague.

At the same time the counter-intelligence that is taken out of the action of the current law on operational and search activities with at least some safeguards against abuse, receives the powers unheard of until now, which it will be able to use at its discretion. And the new counter-intelligence subdivisions that will carry out counter-intelligence provision of the economic capability and combating against the organized crime, will fully take over the activity of the SBU departments that are liquidated – concerning the investigation of corruption and economic-related crimes. The SBU categorically does not want to give up control over the economy and the market as such.

Other suggested changes to the draft law, directed at abolishing the extension of the powers of SBU in the area of life where it is not currently present, including the duplication of powers of other security bodies – Foreign Intelligence Service, National Police, State Bureau of Investigations, Ministry of Defence, State Migration Service and State Border Service, anti-corruption and other state bodies; improvement of the mechanisms of control over the activity of SBU, were not taken into account.

The suggested change on the abolition of the possibility of sending an SBU officer to other state bodies, institutions and organizations, regardless of the form of ownership, to work under cover, is not taken into account, either. This practice is very similar to the activities of the KGB in Soviet times with its comprehensive control of everything that moves..

Moreover, SBU receives a new power: “to receive information in the prescribed manner from law enforcement and other government agencies, military formations, local governments, enterprises, institutions, organizations” regardless of the form of ownership, free of charge, within five work days. The subject of information is not defined. What is it if not a mean of pressure on other state bodies, on business? And the information on the activities of SBU is hard to obtain: individual pieces of information (unclear which exactly), obtained or created within operational and search activities of the SBU (meaning, actually all information) are published through media or in another way according to the decisions of the Head of SBU and in the manner and amounts established by acts of the SBU. Such “awareness” can lonly create the illusion of control over the activities of SBU.

Such asymmetry (SBU – everything, civil society – nothing) is inherent for the Draft Law No. 3196-d.

Another example: the norms on the use of coercive measures, coercion (force), special means and firearms by SBU officers remained unchanged. Essentially the draft law copies the relevant provisions from the Law “On National Police” and adds new provisions: to use Devices for firing cartridges equipped with non-lethal rubber or similar metal shells”, as well as ”armoured vehicles as well as other special (specialized) vehicles”Also, “Self-manufacturing and use of a small-sized detonating 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, as counter-intelligence simply does not need many of these powers..

And in the draft law for the second reading all traditional restrictions for use of coercion, force, special means and the firearms provided by the Law “On National Police” are removed! With the adoption of the Draft Law No. 3196-d SBU will be a law-enforcement body with the widest powers in the country concerning the use of coercion and force.

In general, the list of shortcomings of the bill, which is now submitted for second reading, can be extended for a long time. They are so large in size that it seems impossible to fix them. Meaning, Draft Law No. 3196-d is unacceptable at the paradigmatic level: it significantly expands the scope of activities of counter-intelligence, which receives unlimited powers and will be uncontrolled. Meanwhile, it is Ukrainians who are well aware of what is happening in the country with uncontrolled and omnipotent secret services: they are beginning to unconditionally abuse their powers.

So, it is impossible to leave the old law or adopt a new one yet! Both of these decisions are unacceptable.

In my opinion, a high-quality bill should be prepared seriously and anew.

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