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Downloaded Here Publication is made in frames of the project «Secret Service of Ukraine Reform Based on International Experience» between the Institute for the Future and Netherlands Ministry of Foreign Affairs SSU Reform: Challenges and Prospects. The Study / Zakharov Y., Tokarev G., Stupak І., Popov І., Samus M., General edition: Semyorkina О.М. – К., 2021. – 172 p. The study is dedicated to the issues of reforming of the SSU in post-Soviet Ukraine. In particular, we analysed the international experience of reforming the special services, a number of documents of UN, Council of Europe, the European Commission for Democracy through Law (Venice Commission), as well as legislation and practice of various countries of the world. A prominent place in the study is given to the analysis of observance of human rights in the activities of the SSU. The authors suggested the ways of reforming the SSU, based on the international standards and the best global experience. We have developed the recommendations concerning the model of SSU reform and implementation of parliamentary control. The study is designed for the members of parliament, employees of the public sector working in the fields of criminal justice and law enforcement, representatives of international and non-governmental organisations, researchers, and the general public. Preparation for publication and printing of this publication was carried out by the Ukrainian Institute of the Future. CONTENT List of abbreviations Preface International experience of reforming of the special services Observance of human rights in the activities of the Security Service of Ukraine The conceptual framework of reform of the Security Service of Ukraine Links SSU Reform: lenges and Prospects List of abbreviations: AF – Armed Forces AFU – Armed Forces of Ukraine ARC – Autonomous Republic of Crimea АТО – Anti-terrorist operation CC – Criminal Code CCP – Code of Criminal Procedure CISS – Code of information that constitutes a state secret CMU – Cabinet of Ministers of Ukraine DSG – Department of the State Guard of Ukraine EConvHR – European Convention on Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR – European Court of Human Rights FIS – Foreign Intelligence Service of Ukraine GS – General Staff of the Armed Forces of Ukraine HRMMU – UN Human Rights Monitoring Mission in Ukraine JFO – Joint Forces Operation МoD – Ministry of Defence of Ukraine MFA – Ministry of Foreign Affairs of Ukraine MoH – Ministry of Health of Ukraine MIA – Ministry of Internal Affairs of Ukraine MID – Main Intelligence Directorate of the Ministry of Defence of Ukraine MJ – Ministry of Justice of Ukraine NABU – National Anti-Corruption Bureau of Ukraine NAS – National Academy of Sciences of Ukraine NBU – National Bank of Ukraine 2 List of abbreviations NGU – National Guard of Ukraine NF – Naval Forces of the Armed Forces of Ukraine NPU – National Police of Ukraine. NSDC – National Security and Defence Council. PGO – Prosecutor General’s Office of Ukraine. RF – Russian Federation SBI – State Bureau of Investigations. SBSU – State Border Service of Ukraine. SCES – State Criminal-Executive Service of Ukraine. SCU – Supreme Court of Ukraine. SESU – State Emergency Service of Ukraine. SFS – State Fiscal Service of Ukraine. SIZO – pre-trial detention centre SMS – State Migration Service of Ukraine. SOF – Special Operations Forces of the Armed Forces of Ukraine. SPT – Subcommittee on Prevention of Torture. SSSCIP – State Service for Special Communications and Information Protection of Ukraine. SSU – Security Service of Ukraine. StCU – State concern "Ukroboronprom". VRU – Verkhovna Rada of Ukraine UN – United Nations Organisation UNHCHR – Office of the United Nations High Commissioner for Human Rights uifuture.org 3 00SSU Reform: lenges and Prospects PREFACE 4 00 Передмова The Security Service of Ukraine is preparing for the reform – the greatest in its 30 years of existence. During that time the SSU went through several waves of staff purges and formal lustrations; however, in its structure it remains a successor of the Soviet KGB. Back then the special service had to provide total control over all fields of economical and social life, over all citizens. The special service had to be numerous and have multiple branches, and its powers included everything – from the detection of dissent to control over the Armed Forces. During the reorganisations, the Foreign Intelligence Service and State Special Communications Service were spined off from the SSU and became separate agencies. Border guards have also not been subordinated to the SSU for a long time, unlike in Russia, where the border service is a part of the FSS (which is why the total number of servicemen is so great there). The SSU, as the successor to the Soviet KGB, continues performing law-enforcement functions, and remains a militarized system, with limited internal and external control, which creates conditions conducive to abuse and violations of human rights. Ukraine, unlike the countries of Central and Eastern Europe, did not introduce the measures of transitional justice1. When countries of Central and Eastern Europe condemned the communist regime and prohibiting the activities of the special services, which were the “branches” of the Soviet KGB, at the same time they carried out the lustrations (trustworthiness checks, or moral integrity checks), first of all among the employees of the security and defence sector, law enforcement bodies, and judges2. The reform of the Security Service of Ukraine should aim at the transformation of the special service into a small mobile high-tech structure, like the British MI5. The exhaustive list of the SSU's tasks should consist of counter-intelligence, combating terrorism, and protection of state secrets. Other functions could have been transferred to other bodies long ago, first of all, to the law-enforcement ones, to avoid duplication. Such were the reforms in the post-communist countries of the Central and Eastern Europe, and that experience has been successful. Experts from the Ukrainian Institute of the Future analysed the tasks and powers of special services of several European countries and identified the main lessons of both successful and problematic reforms. In 2020 Verkhovna Rada of Ukraine was discussing the draft law No. 3196-d, which was introduced in its first edition by the President of Ukraine. In the process of refinement that bill changed significantly. However, at the time of its passage in the first reading on 28 January 2021 it still had enough contradicting provisions, and not all of them could be easily rectified during the preparation for the second reading. One of the most urgent tasks of the reform is to deprive the SSU of the functions of combating corruption. It is the activities of the authorized anti-corruption subdivision of the SSU that make the most scandalous topic in the critical publications and journalistic investigations. A system of anti-corruption bodies has been created in Ukraine (in particular, NABU, SAP, SBI /with regard to investigation of those corruption-related crimes that are not in the investigative jurisdiction of NABU/). Although the level of their effectiveness does not always satisfy the society, the anti-corruption functions of the SSU have lost their relevance. By the way, in the discussion on depriving the SSU of the anti-corruption function reached consensus of all interested parties. uifuture.org 5 SSU Reform: lenges and Prospects Economy is a more difficult question. Representatives of the SSU insist on keeping the functions of counter-intelligence protection of the economy. For that purpose they suggest to keep the right to enter the premises of enterprises and customs posts, and to give mandatory instructions to business entities. Critics of this approach warn against the risk of interfering in business activities, obstructing the business and forming corruption mechanisms. An effective compromise option could be to keep the powers of the special service to combat economic espionage, provided, however, that when such facts are found, operational activities should be carried out, and the management of the enterprise or the authorized law-enforcement bodies should be notified. There should be no right to stop the customs clearance of containers, nor other tools of direct pressure on the business. A similar approach should also exist in the development of the organised crime groups, only in cases where contacts with identified spies have been discovered, and in coordination with the law-enforcement body in charge of the respective cases. Another debatable issue is whether the investigation functions should be kept or transferred. The SBI stated that it is not ready to have the entire investigative jurisdiction of the SSU added to its duties within 1-2 years. On the other hand, when the scope of powers will be reduced, the number of investigations, which is not too high anyway, will also decrease significantly. A special subdivision within the SBI, formed using former investigators from the SSU who have the relevant competences, could investigate the cases against the spies and terrorists. There has also been a global problem that manifested itself during the preparation of the bill: how to find the balance between the interests of security on one hand, and human rights on the other hand. Despite all military threats, in time of peace the special service shall only carry out operational measures concerning the citizens with the permission
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