Will Zelenskyi use historical chance to reform SBU: analysis of draft law of SBU

The issue of reform of the Security Service of Ukraine (SBU) is long overdue. It was one of the pre-election slogans of both Volodymyr Zelenskyi during the presidential election and Servant of the People Party during the parliamentary elections.

Society and business complain over the pressure and interference from the SBU, experts point to the improper functions and uncertain status of the body, international partners focus on non-compliance with world standards.

Just imagine, in addition to the central office, regional offices, military units and medical facilities, the SBU actually created a separate state for itself. In the register of legal entities we have found 8 resorts and wellness centres founded by the Service, 7 kindergartens, 2 construction enterprises, and a design institute. The service also has its own forensic institution and even a pre-trial detention centre.

Excessive functions and resources allow SBU officials to intervene in all areas of social life and business. However, now Ukraine has a unique situation where the governmental political force oversees all the law enforcement agencies. It finally gives a real chance to change the SBU.

The Service drafted a law that should become a roadmap for reform. However, in reality, it safeguards the SBU’s excessive powers instead of destroying them.

From the first days of the work of the new head of SBU Ivan Bakanov, his reluctance to publish his declaration, despite the fact that he had been a businessman, became evident.

Already during Bakanov’s tenure, the Service has managed to become the centre of new scandals. The official site of the SBU is overwhelmed with reports of exposed bribe-takers and conversion centres, though this is not by any means what the state special intelligence service should do.

History repeats itself

According to the draft law, on the one hand, the Service has the same precise responsibilities defined by the Law on National Security.

However, on the other hand, the draft law provides for functions and powers that are not explicitly inherent for intelligence services.

Why does not SBU want to get rid of investigative function? 

The SBU suggests remaining the function of pre-trial investigation with the Service. Both experts and international partners recommend to deprive it of these functions. The fact is that investigation and counterintelligence are completely different activities that have different goals.

The investigation should investigate and ensure that criminals are held accountable, counterintelligence should collect information for analysis, identification of threats to state security and prevention of such threats.

If the investigation is fighting one specific consequence of threats such as crime, the counterintelligence must prevent all threats to state security. And counterintelligence has been and continues to be, the primary mission of the Service.

Of course, the SBU investigative functions cannot be taken away immediately, but specific mechanisms and a timetable should be provided for this. For maximum preservation of existing cases, they can be transferred to other pre-trial investigation agencies together with investigators.

However, the draft law does not provide for this. It does not even take from the SBU investigation of such crimes as smuggling. Moreover, the investigative powers of the Service are strengthened.

There is a provision envisaging that the Prosecutor General or his deputy following the submission of the head of the SBU or his deputy, may refer any investigation to the service if it concerns national security. For example, considering NABU’s cases, every other case concerns state security. These are Rotterdam + case and the case of former MP Mykola Martynenko, because they are related to energy, or the Onyshchenko’s gas deal.

In fact, any case can be transferred to the SBU under the criteria of “national security”, and forget about its thorough investigation there.

A systematic analysis of the provisions of the draft law leads to the conclusion that the SBU plans to retain its powers with regards to the fight against organized crime. However, combating crime is the task of all law enforcement agencies within their specific jurisdiction and through the instruments of criminal procedure.

Considering this, there is no need to retain the powers to fight organized crime with the Security Service now, and depriving the Security Service of such functions may help to clean up the institution.

Monopoly on wiretapping

With its version of the draft law, the Service seeks to undermine the independent and autonomous functioning of other law enforcement agencies. They preserve the power to intercept information from communication channels, ie, wiretapping, only through the SBU.

The service wants to retain this monopoly, even though the law passed and signed by the president has already allowed NABU and SBI to have an autonomous wiretapping. That is why the draft law includes the norm that all other laws adopted before it are effective in parts that do not contradict it. Roughly speaking, they just want to screw the recently adopted law.

SBU declarations are out of control

Judging by the content of the draft law, the management of the Service does not want to openly submit declarations. There is also a suggestion that the SBU should agree on the procedure for implementing all possible anti-corruption control measures over its employees.

It also contradicts law already adopted and signed by the President, which clearly stipulates that the declarations of the SBU management should be public and that the National Anti-Corruption Prevention Agency should determine the specifics of the SBU’s control measures. After all, the existing model of agreement with the SBU did not work during the last 3 years.

Too many personnel

The draft also offers a peculiar solution for the problem of too many personnel. On the one hand, they propose to limit the maximum number of SBU servicemen from 31,000 to 15,000 persons, with the possibility of increasing the maximum number of 5,000 more during a special period or military aggression. According to the head of the Service Ivan Bakanov, now the SBU employs 27,000 people.

However, the final provisions of the project stipulate that reductions will occur over the next 7 years – until 1 January 2027. This approach is allegedly applied due to the fact that the dismissal of employees requires serious expenses because of the payments provided for servicemen in connection with the dismissal. Therefore, the SBU plans to dismiss 2 thousand people a year to save money.

At the same time, the draft does not answer the question of what criteria will be used for this process and whether a system of purification from unscrupulous officials will be employed.

At the same time, the SBU obviously wants to keep kindergartens, construction enterprises and wellness centres, their own forensic institution and a pre-trial detention centre. Although all of this is a relic of the Soviet past.

***

Actually, as a result of the reform, the SBU should become a classic intelligence service that meets world standards, and strengthen itself institutionally. It should stop fighting corruption and crime, abandon the investigation altogether and allow it to be carried out by other agencies, and finally open declarations of public officials and demilitarize itself. Ultimately, the Service needs to become a powerful analytics centre focused on preventing threats.

Real special service is not a service that is mentioned in the media because of scandals and bribes. It is the invisible eye of the state, which is minimally talked about publicly, but by which the state is protected.

Whether the reform of the SBU will meet all the expectations and standards is now being decided in the Office of the President, because he is the subject of the legislative initiative, who will submit a draft law to the Parliament.

The next, even more difficult, stage will be implementation, which will not happen without ideologues inside the Security Service. However, without a high-quality draft law, the president should not expect any changes at all.

Instead, it should be borne in mind that in the current version of the text, the Service is already a monster in terms of authority and structure, so any careless step can make this monster unmanageable.

Olena Shcherban for Ukrainska Pravda

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