By Presidential Order as of October 21, 2005 No 1-1/1138, the integrated oversight of the Security Service of Ukraine is ongoing in order to introduce meaningful and comprehensive reforms into the intelligence agencies of our state for effective counteraction to real and potential threats to national security in line with current European and Euro-Atlantic standards. The integrated oversight includes four stages. Its resulting documents will be open for the public.
The national security system needs enhanced civil democratic control of its activities. In view of Ukraine’s European integration aspirations, adapting of domestic law to the EU and NATO standards remains our priority. Along with this, the following factors must be considered:
1. The EU and NATO security services and law enforcement agencies are classified into three models according to different security monitoring systems: American (presidential subordination), British (subordination to prime minister) and French (subordination to president and prime minister).
2. Main principles relating to control over security services and law enforcement agencies are specified in PACE Recommendations 1402 (1999), 1713 (2005).
3. In respect of security issues, the EU and NATO member-states follow national interests, domestic laws, traditions and historical experience.
Under the Constitution of Ukraine, Law on the Security Service of Ukraine and other legal acts, the system of control over the SBU activity includes parliamentary, presidential and judicial oversight.
Constant control over the activity of the Security Service of Ukraine and over its observance of the legislation is carried out by the Verkhovna Rada of Ukraine, namely the National Security and Defense Committee. The SBU Head presents annual report on the activity of the Service to the Verkhovna Rada of Ukraine.
Control over the activity of the Security Service of Ukraine is carried out by the President of Ukraine and by the authorized state bodies. Constant control over the observance of constitutional rights of citizens and legislation in operational and investigation activity and in activity in the area of the state secret protection by the SBU bodies and departments, as well as control over the conformity of the issued by the Security Service of Ukraine regulations, orders, decrees, instructions with the Constitution and laws of Ukraine is carried out by the officials specially appointed by the President of Ukraine. The SBU on a regular basis informs the President of Ukraine, members of the National Security and Defense Council of Ukraine about the main questions of its activity, about cases of infringement of the legislation, as well submits other necessary data at request. The SBU Head presents annual written report on the activity of the Service to the President of Ukraine.
The judiciary control is vital to strike the right balance between the operational requirements and measures (telephone tapping, technical and visual surveillance, etc.) the SBU is tasked with and democratic principles, which it needs to adhere to. Higher oversight over observance and application of the laws by the Security Service of Ukraine is carried out by the President of the Supreme Court and the Prosecutor General of Ukraine.
The PACE Recommendation 1402 (1999) regarding control of internal security services stipulates that:
1. The legislature should pass clear and adequate laws regulating which kind of operational activities carrying a high risk of violation of individual rights may be used in which circumstances, and providing for adequate safeguards against abuse. It should also strictly control the services’ budget, inter alia by obliging these services to submit to it annual detailed reports on how their budget id used, and should set up special select control committees.
2. The executive bodies should exercise control over the special services, for example by obliging them to draw up and submit annual detailed reports on their activities.
3. The judiciary should be authorized to exercise extensive a priori and ex post facto control, including prior authorization to carry out certain activities with a high potential to infringe upon human rights. The overriding principle for ex post facto control should be that persons who feel their rights have been violated by acts of security organs should be able to seek redress before courts of law.
4. Other bodies (for example ombudsmen and data protection commissioners) should be allowed to exercise control of the security services on a case-by-case basis.
5. Individuals should be given a right of access to information gathered by the internal security services, with exceptions to this right in the interest of national security clearly defined by law.
The foregoing indicates that at present main principles of civil control over the SBU activities under the PACE recommendations are taken into consideration and carried out. However, the following measures towards improvement of the democratic oversight are required:
according to the PACE Recommendation 1713 (2005), the control of activities of special services should be carried out by a special parliamentary committee, which is currently lacking in the Verkhovna Rada of Ukraine;
new version of the Law “On the Security Service of Ukraine” requires validity of the Presidential Commissioner for control over the SBU activities;
in view of the EU and NATO experience, certain issues relating to the SBU budget financing should be referred to data constituting the state secret with the relevant control by the Accounting Chamber of Ukraine;
normative consolidation of the Public Consulting Council under the SBU Head.
For the Attention of the SBU Head