In the context of Russia’s war in the eastern Donbas and its occupation of Crimea, the effectiveness and accountability of the Security Service of Ukraine (SBU) is vital.
Reform should lay the foundation for the reformed service’s work so that it meets Ukraine’s European integration and Euro-Atlantic aspirations. However, the latest version of Draft Law No. 3196-D on reforming the SBU, published on May 27, continues the purely Soviet tradition of relations between society and the state in matters of access to information.
It entrenches the excessive secrecy that is traditional for Ukraine’s security and defense sector.
The draft law in its current form does not comply with the Laws of Ukraine “On access to public information” and “On the national security of Ukraine” by violating citizens’ right of access to public information.
Among the key problems are the services’ monopoly on secrecy and even the inability to transparently see the SBU leadership’s assets. This threatens public confidence in the SBU and can lead to numerous human rights violations and obstacles to Ukraine’s Euro-Atlantic integration.
Monopoly on state secrets
The Security Service of Ukraine still continues to work under a law approved almost three decades ago. Since then, updates to it have been cosmetic. There have been many attempts since Ukraine gained independence to fundamentally reform this crucial structure, but all of them failed in the early stages.
Now there is a chance to adopt a new law. On Jan. 28, 2021, the Verkhovna Rada adopted it in the first reading; soon it is planned to be submitted for consideration in the second reading.
But the updated draft does not contribute to the transparency of the SBU’s work and contains significant corruption risks and threats to human rights.
The text of the draft, published on May 27, allows the SBU to ignore the requirements of the law “On access to public information” and classify any information at its own discretion. The bill does not require using a three-part test when deciding whether to designate access to certain information as “restricted.” This test assumes that information can only be classified if disclosure can cause specific measurable harm to national security, and this harm outweighs the damage caused by the secrecy of this information.
The service still has a monopoly on managing state secrets.
It will continue to be responsible for classifying information as a state secret and monitoring the security of data with this status, as well as declassifying and granting access to information. Even members of parliament will need permission from the SBU to obtain access to state secrets.
An uncontrolled service?
The bill allows SBU leadership to avoid declaring their income, which creates a quite high risk of corruption. Article 47 allows concealing information about the wealth of Service employees engaged in operational searches and counterintelligence activities.
The problem is that all service employees, including leadership, engage in such activities at certain stages of their work.
And there are no exceptions even for the SBU leadership!
At the same time, the draft law proposes amending Article 52-1 of the Law of Ukraine “On preventing corruption” and Article 6 of the Law of Ukraine “On access to public information.” This will limit access to information about senior SBU officials and make any public control impossible.
The document does not provide for real and effective public control mechanisms over the Security Service’s activities and civil society’s participation in its reform. Article 60 states that this issue is governed “by legislation” (and not “by law”), which is a very general wording and in practice can lead to regulation by Presidential by-laws or the SBU itself. At the same time candidates for the SBU Public Council must pass a “counterintelligence” polygraph test, which makes it possible, “if necessary”, to fill this body only with loyal people. This lack of transparency creates a threat of corruption on the part of SBU officials.
Who will protect corruption whistleblowers?
The bill in no way protects whistleblowers of corruption or illegal actions within the Security Service.
If an SBU employee discovers illegal wiretapping of an MP that was ordered SBU leadership, or a corruption scheme in defense procurement, they will not be able to report this information to a law enforcement agency or even to someone in the SBU system, because this information is formally a state secret. If this happens, the SBU employee will be considered to have violated Article 328 of the Criminal Code and could be held responsible for illegal disclosure of state secrets.
The law does not define a procedure for reporting a crime if the detected information is a state secret.
At the same time, in practice, some facts about corruption offenses or other socially important information are illegally classified as state secrets. One of the most high-profile scandals in the history of state secrets is the 2002 Kolchuga case, but even today there are many difficult stories, mostly related to defense procurement.
That is why it is so important to solve this problem within the law and provide reliable channels for reporting possible corruption offenses or human rights violations by the SBU.
This is also important for effective parliamentary control.
After all, it is whistleblowers from the SBU who will be the main source of information for the committee that will exercise parliamentary control over the Service’s activities. If the notification procedures are not fixed in the draft law, SBU officers will not take risks and apply to the committee and report possible offenses by the Service’s leadership.
We call on members of parliament to adopt the amendments proposed by the expert community and civil society to ensure a truly effective reform of the Security Service of Ukraine according to the European model.
Oksana Nesterenko is an expert consultant for the Independent Defence Anti-Corruption Committee (NAKO).
