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How “servants of the people” turned the independent NABU’s “wiretapping” into the one controlled by the SBU

Experts evaluated the President’s draft law No. 1009 on Amendments to the Criminal Procedure Code positively from the very beginning. Law enforcement officers and judges are eagerly waiting for its adoption due to the cancellation of the so-called “Lozovyi’s amendments” and other important changes.

But the draft law has already received the scandalous status during the discussion in the Parliament. It became the first one that broke the parliamentary monopoly of the party “Sluha Narodu”. The latter plainly lacked enough amount of votes for the adoption in the second reading. The reason was that the project withdrew unjustified guarantees from Members of Parliament, namely the need of consent of the Verkhovna Rada for wiretapping and searches. In the end, in order to let the project into the plenary hall, these provisions were excluded at all.

While everyone is discussing the issue of immunity, Members of Parliament are quietly trying to turn positive changes of the draft law into the fiction.

On Tuesday, the regular hearing of the Committee of the Verkhovna Rada of Ukraine on Law Enforcement under the chairmanship of the MP from the party “Sluha Narodu” Denys Monastyrskyi regarding the draft law was held. Amendments of the chairman of the Committee appeared during this hearing. The main task of them was to undermine the essence of the law.

So, what is the point and negative consequences of such amendments? In order to understand this, it is necessary to follow MP’s hands.

Primarily, this is about the article 263 of the Criminal Procedure Code. At present, the sentence in this section of the article states that: “Interception of information from transport telecommunications networks is entrusted to the authorized units of the National Police and the security authorities”.

The President suggests the very simple amend in this draft law, namely, to add two new bodies to this sentence: the National Anti-Corruption Bureau and the State Bureau of Investigation.

However, another amendment No. 149 of Denys Monastyrskyi appears in the subject Committee. It states that: “Interception of information from transport telecommunication networks is entrusted to the authorized units of the bodies of the National Police, the National Anti-Corruption Bureau of Ukraine, the State Bureau of Investigation and security authorities in accordance with the procedure established by the legislation“.

That means that there are such words “with the procedure established by the legislation” in addition to the mention of the SBI and the NABU.

This invisible, at the first glance, phrase actually distorts the whole point of amendments. And events that took place at the hearing of the Committee explain this.

First, this phrase wasn’t needed until only the SBU and the National Police had such right to intercept information from the communication channels. We should note that the National Police didn’t implement it but conducted it by means of the SBU, despite the fact that they actually had such right specified in the law.

Secondly, the author of the amendment does not specify what legislation this is about. But it is clear that the term legislation means regulatory legal acts (orders, instructions, rules).

The content and essence of the idea was revealed by representatives of the mobile operators who were present at the hearing of the Committee. The mobile operators are responsible for providing access for the NABU to communication channels. They stated that such access should be conducted only through the “single window”. That means through those technical and software tools that are already used and controlled by the SBU.

Moreover, representatives of the association of mobile operators, who were present at the hearing of the Committee, made it clear that they had suggested to secure such access through the SBU at the level of the CPC. But they were promised that the principle of the “one stop shop” would be implemented precisely at the level of regulatory legal acts.

What regulatory legal acts were they talking about? This secret was revealed by another amendment from another MP from the party “Sluha Narodu”. The amendment on the consolidation of monopoly of the SBU at the level of the CPC was submitted by MP Valeriy Kolyukh. He was the assistant of scandalous former MP Oleksandr Onyshchenko and members of the Party of Regions, namely Oliynyk and Sivkovych, prior to his election to the Verkhovna Rada from the party “Sluha Narodu”.

But attention was drawn primarily to the justification that the MP had added to his amendment. He clearly stated that “the communication networks of most telecommunication operators already have equipment for the interception of information. It is managed from the single control center”. Such control center is the Security Service, which clearly does not want to say goodbye to its monopoly.

Also, MP referred to the document which is not in the public access apparently due to its secret character. Namely, the Presidential decree No. 823-06т as of August 22, 2011. Thus, judging from MP’s justifications the decree states that the interception of information from transport telecommunication networks is implemented and used through the SBU.

Except the non-public Presidential decree, there is a joint order of the SBU and the Ministry of Transport as of 2008. It defines technical requirements for means of interception of information from the communication channels. This document is not registered at the Ministry of Justice. And it technically defines the way of the so-called “one stop shop”, which again leads to the Security Service.

As the result, the amendment of MP Kolyukh with the direct reference to the SBU was rejected. But they accepted another. It does not point to the SBU directly, but leads to the SBU through the above-mentioned regulatory documents.

After all, the allegedly invisible phrase “in accordance with the procedure established by the legislation” means that rules of the CPC will be implemented exactly as stated in the above-mentioned documents. Unfortunately, the NABU would not be able to change the Presidential decree on its own or approve its own technical requirements for the implementation of this right. Without this phrase other subjects had the clear duty to align regulatory legal acts with the CPC. But this phrase allows the interpretation that the order may be changed and could be established by other documents that already lead to the SBU.

Why the implementation of such authorities through the SBU is unacceptable

The main reason of demands of the society and international partners was precisely to ensure the NABU’s independence regarding such activities. In the first place, it was independence from the Security Service.

After all, the entire leadership of the SBU is in the NABU’s jurisdiction. That means that if the NABU’s detectives know about committing crimes by the SBU leadership, they are forced to “wiretap” officials of the SBU under the control of the SBU itself and by the court’s permission. Which is the systemic conflict of interest.

And we do not even mention the repeated facts of leaking information. This regards cases when subjects of the NABU’s proceedings can ask the SBU employees to provide information whether the phone is being wiretapped or situations when the SBU employees simply sell such information.