For NV.ua

Systemic corruption and the country’s resulting insufficient defence capacity were among the main reasons for its failure to confront Russian military aggression in 2014.

According to the NABU Chairman, Ukraine lost more than UAH 1 bln in 2014-2017 due to corruption schemes in the defence sector alone.

Corruption flourished in the national security sector due to excessive secrecy and lack of public control. So ensuring transparency and accountability of the security, defence and law enforcement agencies was one of the social demands to the authorities during the Revolution of Dignity

The draft law on SSU: a step towards transparency or vice versa? 

Transparency and effective public control are undoubtedly the most essential instruments to combat corruption. Before the Revolution of Dignity, everything related to the defence and security sector was always classified.

The parliament of previous convocation reformed the public procurement system and paved the way for civil democratic control in the defence sector. The current convocation adopted the revolutionary Law “On Defence Procurement”, which will make defence procurement more competitive and transparent.

However, the draft law “On the Security Service of Ukraine” (hereinafter referred to as draft law 3196-d) maintains the Soviet tradition of relations between society and the state regarding access to information. The document provides for excessive secrecy.

Restrictions on public oversight over the security, defence , and law enforcement agencies. What are the dangers?

Example No. 1

Article 42 of this draft law prohibits classifying information on special verification of persons applying for the SSU positions. It is also prohibited to classify asset and income declarations of the SSU officials who are public persons and are appointed by decrees or upon recommendation of the President of Ukraine. But Article 47 of the same draft law allows to classify not only sensitive information on the SSU employees carrying out counterintelligence and law enforcement intelligence operations, but also socially important information on the property status and assets of the SSU management.

In legal terms, all SSU employees , including the heads of the Central Directorate and its regional offices, carry out law enforcement intelligence and counterintelligence operations at different careers stages. All of them have had access to or worked with the classified information.

The draft law provides formal grounds to restrict information on any SSU employee's finances, thereby making it impossible for the public to control the country’s key security agency.

The authors of the draft law 3196-d propose to amend Article 52-1 of the Law “On Preventing Corruption” and Part 6 of Article 6 of the Law “On Access to Public Information”. This will restrict access to information on the assets of the officials working in the SSU and other security agencies. This may close the door on any public supervision.

Today, information on the property status and assets of officials appointed and dismissed by decrees of the President of Ukraine and the Verkhovna Rada is public. Any person has free access to the declaration of the current SSU head or a person applying for the position in the SSU regional office and can compare publicly available information on the person’s lifestyle with his/her declared income.

But the new draft law states that only information on the SSU officials appointed by presidential decrees will be publicly available.

However, the same draft law doesn’t include the appointment of any official by the Presidential Decree and only stipulates the approval of the appointment by the President of Ukraine. According to Ukraine’s Constitution, the Head of the SSU is appointed by the Verkhovna Rada upon recommendation of the President of Ukraine. Not by the Decree of the President but by the Resolution of the Verkhovna Rada.

The draft law 3196-d also changes the current procedure of appointing the SSU senior officials. Currently, the President appoints them upon recommendation of the SSU head. But pursuant to Article 31 of the new draft law, these functions are transferred to the SSU head upon recommendation of the President. That is, the draft law does not provide for any cases when the SSU officials are appointed “by Decrees of the President.” Thus, a number of high-ranking SSU officials will no longer be required to file asset and income declarations. This will prevent citizens from controlling these officials’ finances.

Under the context of the overall level of legal awareness in Ukraine, the state of justice here and the level of corruption in the government machine, the current wording of draft law 3196-d can lead to an unjustified classification of information of the SSU top officials.

Example No. 2

There are also corruption risks in the provisions governing the democratic civil control over the SSU due to contradictions within the draft law and the lack of its harmonization with other laws.

Article 60 of this draft law stipulates that democratic civil oversight over the SSU is carried out according to the Law on National Security, and the provisions of the law on the SSU must be taken into account. However, the following parts of Article 60 of the draft law fail to contain any specific rules or procedures that would explain these peculiarities. Instead, several issues related to civil democratic oversight (control agents, their competence, and procedures for accessing information) are expected to be regulated by “legislation”. Most likely, this will mean regulation by subordinate regulations of the President or the SSU.

The issues that should have been regulated by the law publicly discussed and approved by the parliament will be determined by individual officials who often have no interest in ensuring a reasonable balance between transparency and secrecy.

Example No. 3

Article 66 of this draft law aims to guarantee public participation in democratic civil oversight over the SSU. But in fact, it reduces such opportunities. Article 66 stipulates that restrictions on the dissemination of information on the SSU “…are determined by law…”, but does not specify which law. A general reference to the law indicates the Law “On the SSU”. One can expect that the provisions of laws that are more progressive in terms of democratic civil control, such as the Constitution, the Law “On Access to Public Information”, and the Law “On National Security” WILL NOT be taken into account.

This very Article 66 stipulates that the Head of the SSU defines the scope of informing about the SSU activity. This includes approval of requests for access to public information.

Ukraine’s Law “On Access to Public Information” is a very progressive one. It stipulates that public information is available by default. It also introduces a threefold test that determines if classifying certain information is obligatory or not.

This was supposed to effectively protect against the unjustified restriction of access to publicly significant information. However, not only draft law 3196-d fails to mention the Law “On Access to Public Information” as the legal basis for the SSU activities, but also provides all indirect references to access to public information in the way that prevents a full-scale application of the Law on access to the SSU.

In closing

Analysis of draft law 3196-d allows for the conclusion that it is an attempt to exempt the SSU from the Law “On Access to Public Information.” The Law “On Access to Public Information” states that all information holders, regardless of the regulatory legal acts pursuant to which they act, should use the latter when deciding on access to information. Its norms prevail over the norms of draft law 3196-d.

However, the adoption of draft law 3196-d can create a dangerous precedent of a security agency having legal grounds to avoid the Law “On Access to Public Information.” This may result in an increase in corruption risks and violation of constitutional human rights and freedoms, thus undoing the progress previously achieved.

Draft law 3196-d was not approved by the parliament and returned for follow-up revision. Thus, there is a chance to balance it with provisions ensuring transparency and accountability of the SSU.

Recommendations

We recommend the following provisions:

Firstly, it should be mentioned that access to information may be limited only following a threefold test. It is possible only if its disclosure may result in measurable damage to national security, and this damage prevails over the damage related to its classification. This could be direct references to the Law “On Access to Public Information” in the provisions governing the legal framework within which the SSU operates; general principles of civil democratic supervision over the SSU; the procedure for accessing public information and restrictions on the dissemination of information on the SSU.

Secondly, it should include tangible instruments and procedures to exercise civil supervision where needed.

Finally, it should guarantee independent procedures that will make it possible to challenge the restriction of access to information in the national security sector.

Without the above provisions, draft law 3196-d will violate the fundamental principle of a democratic State governed by the rule of law,that is, the principle of transparency and accountability of the state’s law enforcement agencies in such a sensitive area as national security.

Author: Emiliia Dieniezhna, Communications Manager, Independent Defence Anti-Corruption Committee (NAKO)

Co-author: Oksana Nesterenko, Security Expert, Independent Defence Anti-Corruption Committee (NAKO), expert