Ukraine's draft legislation to reform the security services would grant them broad powers in intelligence and law enforcement, without essential safeguards against abuse of these powers. Parliament should postpone the final vote on the draft legislation, currently scheduled for the week of October 11, 2021, and address the human rights concerns with the draft, while engaging in meaningful consultation with Ukraine's civil society.
"This security service reform effort is long-awaited and much needed," said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. "The ongoing scrutiny and public debate surrounding the bill have prevented it from being rammed through parliament and have led to some improvements. However, some human rights issues remain, which, if not addressed, could ultimately put the reform into jeopardy."
Ukraine's parliament, the Verkhovna Rada, adopted draft law 3196-D "On the Security Service of Ukraine" in its first reading in January and initially scheduled the bill for its second and final reading in early June. It has repeatedly postponed the final vote, in part due to criticism by Ukrainian and international human rights groups. The draft underwent multiple revisions between the first and the second readings, but still contains provisions granting the security services, known as the SBU, wide surveillance, right of entry, and detention powers without adequate human rights safeguards.
On October 5, G7 ambassadors to Ukraine urged Ukraine's parliament to adopt the bill without delay or further amendments. However, Ukraine's international partners should be sending a message that the security service reform has to respect and uphold international human rights, even if it means more time and amendments, Human Rights Watch said. The G7 should reverse its position and other countries should push back on the G7's support for a flawed bill. The G7 should also make a commitment to monitor the SBU's use of its powers under the law to identify whether they are observing Ukraine's international human rights obligations.
The final version of the draft bill, dated September 22, provides the SBU with extraordinary surveillance powers and the ability to collect and store public and private information about individuals and institutions. It requires telecommunication and internet companies to install special equipment that would allow the SBU to have permanent access to users' data, potentially intruding on the privacy of every telephone and internet user registered in Ukraine. It also provides the SBU with the technical capability to block websites at its discretion, including in some instances, without a court warrant. These proposed measures do not meet human rights standards for permissible restrictions on freedom of information.
"This draft legislation resolves some of the issues that the SBU has been grappling with for a long time, such as structural and management issues." Volodymyr Yavorskyy, a lawyer from Ukraine's Center for Civil Liberties told Human Rights Watch. "But these improvements come at a high price for human rights, because the draft also allows the secret services to spy on virtually anyone, from private businesses to journalists and activists."
The revised draft law retains the SBU's powers of arrest, seizure, detention, and interrogation without clear oversight. Provisions in the draft law, governing the use of coercive measures - physical force, nonlethal "special means," and lethal force - allow the SBU much greater scope to use these measures than other law enforcement agencies. With such a wide scope for using coercive force, there is a risk that the SBU could use it when not strictly necessary and proportionate, as required by international human rights norms.
The current draft reiterates the absolute prohibition of torture and ill-treatment in detention, an improvement over previous drafts, but does not require safeguards to prevent abuses in detention or guarantee due process for those in SBU custody. There is no provision explicitly requiring the SBU to ensure that a detainee has access to a lawyer, from legal aid services if necessary. Such protections are needed, particularly in light of credible allegations of the SBU's involvement in abuses, Human Rights Watch said.
The proposed provisions to phase out the SBU's pretrial investigative functions by 2025 are now supported by a roadmap, but this needs to be more detailed and clearer to ensure that these deadlines are met.
"The purpose of this reform is to create a streamlined, highly effective counterintelligence agency that adheres to international human rights standards," Williamson said. "It is still possible to achieve that goal by taking steps to revise this legislation before the final vote."
