At the plenary session of the Verkhovna Rada of Ukraine on January 30, 1992, the Chairman of the National Security and Defense Council of Ukraine Yevhen Marchuk presented a draft law
Dear Speaker, and dear members of parliament!
On September 20, 1991, the Verkhovna Rada of Ukraine passed a resolution on the creating of the National Security Service of Ukraine (SBU). It was the first step in building a new structure of state security, whose tasks and activities are going to correspond to the modern stage of the formation of Ukraine as an independent democratic state. Today the Draft Law on the National Security Service of Ukraine is presented for your consideration, which is designed to consolidate the legal status of the newly created Service.
The provisions of the Act of Ukraine’s Independence, the Declaration of State Sovereignty of Ukraine, the Concept of the new Constitution, approved by the Verkhovna Rada, and the universally recognized international legal documents concerning human rights and liberties in a democratic society compose the core of the project.
While preparing the bill, the experience of legal regulation of secret service activities in Ukraine, the former Soviet Union and foreign countries (e.g. the US, Canada, France, Poland, Germany, and other countries) was taken into account. We believe that the purpose of this law should be to ensure the protection of the constitutional order of Ukraine and the universally recognized human rights, the promotion of the harmonization of relations between state, society, and citizens, as well as the prevention of the possibility of abusing the National Security Service of Ukraine for certain party, group, or personal interests.
I want to emphasize that it is extremely necessary to create the conditions for the effective protection of independent Ukraine’s national security through legal means. But at the same time, it is equally important to protect its citizens from any abusive actions by the Service in general or by its individual officers.
We believe the consolidation of duties and rights of the National Security Service of Ukraine, its official bodies and officers on the legislative level is going to contribute to the solution to both problems mentioned. At the same time, the document stipulates for a significant narrowing of the functions and powers of the SBU in comparison to the former Soviet KGB, and strengthening of the institutional and legal guarantees of the rule of law in its activities, in particular, the creation of a new mechanism of control over it, which would be adapted to the conditions of the effective distribution of power into legislative, executive, and judicial branches.
It should be clearly defined which place the National Security Service of Ukraine is going to occupy in the state mechanism of Ukraine. Secret service agencies all around the world are part of the executive branch. Accordingly, Article 1 of the bill stipulates that the National Security Service of Ukraine is a special law enforcement authority which provides national security of Ukraine. Since the executive branch is headed by the president of Ukraine, he possesses the main powers in the administration of the National Security Service of our republic (this is stated in Articles 1, 9, 13, 14, 15, 28, and others).
Based on the principle of separation of powers, though the Verkhovna Rada of Ukraine does not interfere directly with the ongoing activities of the SBU, it makes laws that regulate the major issues related to the National Security Service, exercises parliamentary control over it, particularly with regard to compliance with applicable legislation and ensurance of human rights and freedoms. In addition, the Chairman of the National Security Service of Ukraine is appointed by the president in consultation with the parliament (Article 14).
We believe that in the future courts will be able to actively control the National Security Service of Ukraine by considering the complaints of citizens against unlawful actions of the SBU officers and bodies.
The main feature of the present Draft Law is that it provides certain possibilities of the SBU control by the society outside the usual government agencies. Here an important role should be played by the so-called “fourth branch” – the mass media. Article 7 of the Draft clearly indicates that the public is to be informed about the activities of the National Security Service via mass media in the manner prescribed by law. This article, in particular, forbids setting restrictions on information regarding the general budget of the National Security Service (and I emphasize, the general budget), its competence and core activities, as well as cases of unlawful actions of the SBU staff and official bodies, if this should happen.
This, of course, does not cancel the need to safeguard state, military and official secrets, keep secrecy mode where it is really predetermined by the interests of society and state, and also not to divulge information about the personal life of individuals, so as not to harm their honor and dignity.
This law and all other laws that would apply to the SBU, will be announced in the usual manner (that is, we move away from the so-called closed legislation), and the National Security Service of Ukraine, of course, will make certain provisions, instructions, and other regulations, but with a very significant limitation in terms of privacy. By the way, Article 4 of the Draft provides that if an SBU legislative act establishes additional powers of official bodies and officers, which are not provided by law, or anti-constitutional limitations on human rights and freedoms, it will not be subject to execution.
In developing the part of the bill, which refers to the authority of the Service, the authors proceeded from the fact that its functions should not contain a total, highly ideological and political oversight or control, as happened in the past.
Meanwhile, due to the extremely dynamic development and the ambiguity of the social and political situation in Ukraine, member of parliament and representatives of other government authorities address the National Security Service of Ukraine almost daily requesting available information on the abovementioned problems, their official interpretation, and analysis of forthcoming events and their prognosis. More than 3,500 people addressed the SBU with such questions last year.
The matters of rights are of fundamental importance, since they are necessary for effective ensuring of national security. The draft law proceeds from the fact that every right that is provided for the National Security Service should comprise a mechanism which would block the possibility of abuse of that right.
For example, if you look at Article 25 of the Draft, you will notice a number of conditions and restrictions which were introduced to serve this purpose. So, the right to receive the necessary information from other agencies and organizations (paragraph 3) is possible only if a written request of the head of a SBU body is available. The right to access the territory and premises (paragraph 4) provides for an order of the implementation of this right, which was pre-agreed with the administration or the command of a military unit. The right to assign the National Security Service military personnel to permanent civil job positions in other institutions, enterprises, and organizations (paragraph 11) can only be used at the initiative of the heads of corresponding institutions, enterprises, and organizations.
Based on the results of the discussion of the Draft on operational and investigative activities, it is clear that Part 2 of Article 5 should be given in the following wording: “In exceptional cases, in order to stop and disclose the crimes against the State, the National Security Service of Ukraine may temporarily restrict individual rights and freedoms in compliance with the requirements of the Law on Operational and Investigative Activities.” This means that it can be done only in a way that will be stated in the Law on Operational and Investigative Activities.
I would like to pay special attention to the question of the non-party principle of the National Security Service.
The project provides for certain guarantees against the possible abuse of the National Security Service for party or group interests. The prohibition of the activities of parties, movements, and other public associations that pursue political goals within the Service, as well as limiting its officers’ rights to be members of such associations, is fully compliant with international legislative regulations.
Thus, according to Article 22 of the International Covenant on Civil and Political Rights, quote:
“1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
“2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.”
Therefore Article 6 of the Draft states that during their time of service or work under a labor contract, the membership of the SBU agents in civil associations with political ends shall be terminated.
We believe that effective functioning of the National Security Service of Ukraine will be impossible without reliable legal and social protection of its agents, as well as any persons assisting the SBU to protect Ukraine’s security. These issues are reflected in Chapter 6 of the Draft.
During the debating of the proposed Draft motions were made to include a clause on non-disclosure of information on the SBU agents’ personal data, or on its distinct units (for instance, those fighting organized crime or conducting intelligence activities). By personal data here we mean their home address, telephone numbers, and information concerning their family members, and so on.
The analysis of international legislation and of foreign secret services’ practical experience suggests the need for legal fixation of such proposals.
The Draft Law is concluded with a chapter on liability for violations in the sphere of the National Security Service. Its clauses are harmonized with the effective criminal, administrative, and other legislations of Ukraine.
The Draft Law is complete with a draft resolution on the mechanism of financing and logistical support. It was developed by the Cabinet of Ministers and those involved in the work on this Draft.
Another question may arise, which I would like to answer right away. It is the question of military units of the National Security Service and their cantonments.
As you will know, the National Security Service has no troops of its own, and is not going to have any. Here we mean our school of higher education, the Institute. It is entitled to the status of a military unit with all its attributes, such as restricted access, barracks, etc. Besides, the former Crimean military construction unit is also included in the National Security Service.
The officers of the new National Security Service hope that the present Law and the clauses on the mechanism of its financing and logistical support will become, after the approval of the Verkhovna Rada of Ukraine, a legal basis enabling the functioning of a secret service in a democratic law-governed state, which Ukraine is to become.
I would also like to ask you, dear parliamentarians, to consider the following. When you start debating this Draft Law, moreover, when you put it to the vote, please remember that today this is the only legal act in this country to regulate the activities of the National Security Service. Today, the SBU is in a very awkward legal situation.
Thank you for attention.