Ukraine finally launches reform of Security Service. And human rights activists are worried

NATO membership is among the priorities of Ukrainian foreign policy, supported by the majority of Ukrainians and even declared officially in the Constitution of Ukraine as a foreign policy goal. The membership requires, along with NATO ratification, several reforms of military and security agencies in Ukraine, to comply with NATO standards and ease bureaucratic obstacles for cooperation.

While three important laws have already been adopted, at least two more are pending. The latter concern reform of the Security Service of Ukraine.

At this time, the law only declares cuts to unnecessary SBU competencies — essentially Soviet relics — but it does not establish the relevant changes to implement these cuts, nor to establish democratic control over the SBU and prevent misuse of the agency for objectionable interests.

We spoke to experts to understand why the reform is critical and what experts state should be done to turn the law into a real victory in the second reading.

Economic functions of the SBU: a relict from Soviet times

In its efforts to reach NATO standards, Ukraine has already completed several important steps: the law, “On the National Security and Defence” (2018) has established civic control over the military and has distinguished the civil office of the Minister of Defence and the military office of the Head of General Staff. Other new laws address military procurements and intelligence to prevent corruption and renew the Foreign Intelligence Service. The next steps are to reform the SBU.

Typical problems of the agency, tracing back to Soviet times, were its excessive competencies instead of specific counterintelligence and terrorism functions.

In particular, the investigation of economic crimes by the SBU was the source of constant, sometimes unlawful, pressure on business. Among the most widely known such instances was the 2016 manipulation of the SBU department by pro-Russian oligarch Viktor Medvechuk to take control of the gas market in Ukraine.

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A law on the reform of the SBU is needed to put an end to such measures.

The logic of SBU reform and the law

The reform law was passed during the first reading by Parliament on 28 January.

Within the framework of SBU reform, the law is meant to deprive the Security Service of its functions of investigating economic crimes and fighting corruption, thus ceasing illegal pressure on business.

The law provides for the gradual deprivation of the SBU of the function of investigation, and transferring this function to the State Bureau of Investigation. The newly formed Bureau of Economic Security would take control of economic crimes.

Another goal of the law, which has been met in this draft, is the increase in salary for those within the SBU.

The adopted law also provides the SBU with certain specific counterintelligence instruments to effectively prevent crimes against the State.

In particular, the law focuses the scrutiny of the agency on higher officials, such as judges, prosecutors and other public figures who may be targets of foreign influence and not just economic or organized crime. The SBU will be able to formally assess complaints and recommendations where dubious appointments of higher officials are detected. They will also be able to conduct counterintelligence interrogation of officials using a polygraph.

Additionally, the law reduces the SBU workforce from over 25,000 to 17,000, as a means of eliminating unnecessary functions outlined above and to make the agency more effective.

All these benefits have been prescribed in the law. However, they are unlikely to be implemented unless amendments to other laws are passed, analysts claim.

Declarative or real reform?

The key remaining issue is who will exact the excessive functions from the SBU and how they will do it. Although the process was declared in the adopted law — particularly that reform met by 2024 will stop SBU investigation of crimes and focus solely on counterintelligence — these are still vague terms. The reform also needs relevant changes to other laws to empower the necessary transfer of functions, say experts.

In particular, Vitaliy Tsokur, a lawyer and member of the parliamentary committee for the National Security, Defense and Intelligence, told Euromaidan Press that the SBU should not investigate crimes at all.

Counterintelligence and investigation are two different functions. If combined in one agency, typically counterintelligence will be undermined in favor of investigation, as is the case with the SBU at present.

Tsokur notes:

At the stage of the origin of the crime, before the act is committed, it is a matter of counterintelligence. Find, use the information, and prevent the crime. If it is committed, then there needs to be an investigation of the crime.

One agency should not do both counterintelligence and investigation, because then the counterintelligence activity is leveled.

The law does not take away the function of investigation from the SBU and this is the main problem. … The law only declares in the transitional provisions that from 2024 the SBU will cease to investigate crimes. But there is also Bill №4392, which deals with changes to the Code of Criminal Procedure.

It is this code that actually regulates what the SBU can and cannot investigate. No significant changes are envisaged here; in particular, there is no norm that the SBU will stop conducting investigations. The code, instead, provides an opportunity for the SBU to abuse its investigative activities.

The SBU, being under the control of the president, therefore works in the interests of the president and, in particular, the oligarchs. Our organization analyzed what the SBU has been investigating in the last eight years. While the agency should deal solely with State security, completely different issues currently dominate.

Tsokur noted that an important issue is the appointment of new employees, notedly the introduction of competition. This aspect was largely ignored in the current bill. The president still has too large of an influence on the appointment of staff.

Human rights issues and required amendments

Other hot issues of the reform law are the possible human rights violations the law enables. These include illegal intrusions of the SBU into the private sphere, shutting down media and prohibiting participation in elections without a court warrant.

The grounds for such measures as stated in the law are “to prevent a terrorist act or subversive activities … aimed at undermining the constitutional order, violation of the sovereignty and territorial integrity of Ukraine.”

The SBU will be able to cancel the participation of candidates in elections by submitting to the Central Election Commission a statement regarding the party or candidate conducting alleged separatist, terrorist, or subversive activities.

Although such decisions by the SBU could be challenged by the court later on, the norm as established permits at least temporary violation of freedom of speech and freedom of participating in elections. These and other measures against the media or candidates should be decided solely by courts, state human rights experts.

Similar concerns were voiced by the think-and-act tank Center for Democracy and the Rule of Law (CEDEM) in their statement supported by other NGOs. They also note that although the new law allows pre-trial investigative activities, it does not regulate how and in what form they should be conducted to prevent misuse of SBU authority. It also grants the SBU access to any database, and audio and video surveillance devices by court decision, but does not specify the procedure for procuring information.

Moreover, there are no guarantees in the law that the information should be collected in the minimum necessary amount and not stored without necessity, in addition to other points.

Volodymyr Yavorskyy, Ukrainian lawyer and Member of the Board of the Ukrainian Helsinki Human Rights Union, went so far as to state in his commentary that the law in fact does not limit SBU authority (which would require further amendments to the Code of Criminal Procedure). Instead it broadens the agency’s capacity, in particular regarding the intrusion into private life.

The SBU additionally receives powers related to access to information, surveillance, Internet monitoring, user tracking, access to all private databases … The SBU can revoke a license for television or radio by just one letter, or revoke candidates in elections without court decision … In addition, there is a very strange definition of national security, which also includes that the threat to national security is the spread of false bad information about the state, which opens a wide field for manipulation … The law is declarative, it lacks an exact definition of what cases and how [they] are transferred from the SBU to other bodies … When the year 2024 approaches, when the SBU would allegedly lose its authority, nothing will happen unless there are actual changes to other laws, in particular the Code of Criminal Procedure … It must be determined who should specifically investigate each type of crime as well as the timing and the order of transfer of materials of investigation from the SBU. This is a large layer of transitional provisions that needs to be added.

Prospects

Mariana Bezuhla, Servant of the People MP, is the Security and Defence parliamentary committee member responsible for the law.

She has stated that the law indeed has many aspects which need to be improved. She suggested this will be done before the final second reading of the bill:

All these and a number of other issues were discussed in the working group, and the committee tried to coordinate the parties’ proposals. In fact, the opinion of the parties was “either in our way or not at all,” and this position, unfortunately, clearly illustrates both the unwillingness of the [SBU] to reform and the position of civil society and the opposition. Therefore, the committee took responsibility, finalized and proposed the bill … Undoubtedly, it needs to be thoroughly amended before the second reading. However, the most important thing is laid down – the new architecture of the SBU. We determine that from now on, the priority areas of the secret service should be counterintelligence, protection of national statehood, and the constitutional order. The focus of the service should not be private entrepreneurs and business representatives, but secret agents, civil servants, representatives of branches of government – all those who determine public policy, and are of intelligence interest to foreign intelligence services.

The G7 ambassadors for reform in Ukraine welcomed the law as adopted in first reading and encouraged the completion of the necessary remaining work:

G7 Ambassadors welcome positive steps towards reform of the SBU in line with international standards. We commend the role of @ZelenskyyUA, @StefanishynaO and others in making this happen, and encourage them in completing the work that remains.

— G7AmbReformUA (@G7AmbReformUA) January 29, 2021

The International Advisory Group bringing together representatives of NATO, US and EU also welcomed the approval of the law as “a positive step towards the reform of the [SBU],” and encouraged amending the draft further before final reading to bring it yet closer to NATO standards.

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