On October 26, 2020, members of the Verkovhna Rada’s Committee on National Security, Defense, and Intelligence introduced an updated draft law “On Amendments to the Law of Ukraine ‘On the Security Service of Ukraine’ Concerning the Improvement of the Organizational and Legal Framework of the Security Service of Ukraine” № 3196-d.
The draft law’s preamble states that the SSU should adhere to Ukraine’s Constitution and laws during its activities which limit human rights and freedoms. Despite these assurances, the draft law contains serious risks of excessive interference in the right to freedom of opinion and expression, the right to information, and privacy, and does not contain meaningful and effective mechanisms for oversight of the SSU, in particular:
- The grounds for and procedure of blocking of websites with or without a court order are not clearly articulated and defined, which could lead to limitations on public discussions on issues of importance to society. For example, the SSU could initiate the blocking of any web resource in order to “prevent the aggravation of the socio-political situation” in the country. Such a broad definition could easily cover, for example, calls to protest or the publication of sensational journalistic investigations.
- The draft law lacks safeguards against abuses by the SSU in the interception of electronic communications. The SSU would have complete control over the design and use of systems to gather information from communications networks, making it difficult to ensure the legal use of these systems. The draft law lacks protections for the confidentiality of communications by certain professional and other groups (such as lawyers, doctors, journalistic sources etc.) in the interception of communications, in contrast to the standards used in criminal investigations.
- The SSU would receive unrestricted direct access to government databases and could receive access to any other personal information by request. This approach directly contradicts basic principles for the collection and use of personal information, in particular, that the volume of collected information should not be excessive and that the gathering and use of information about individuals should have a clearly defined purpose.
- The draft law enables the revocation of the license of any TV or radio broadcaster by appeal of the SSU if it believes that the broadcaster carries out «propaganda of terrorism, separatism, sabotage or other activities aimed at breaching inviolability of the state border of Ukraine, or against the foundations of national security, peace, security of mankind, and international order». The draft law does not elaborate a procedure for proving the facts of such illegal behavior, and the provision itself contradicts Ukraine’s international obligations in the area of media regulation.
- The balance between transparency and secrecy about the SSU’s activities is shifted decidedly towards complete secrecy and non-transparency. The Head of the SSU and other SSU leaders would have the power to deny access to public information if they “reasonably” believe that the disclosure of the information would pose a threat to “their own safety and the security of operations”, regardless of how likely the possible harm is or any overriding public interest in disclosure (“three-part test”).
- The SSU will be empowered to interfere in the electoral process by issuing a recommendation to ban or revoke the registration of electoral candidates if the party they are affiliated with carries out “separatist, terrorist, diversionary, or intelligence and subversive activity or other actions aimed at breaching inviolability of the state border of Ukraine, or against the foundations of national security, peace, security of mankind, and international order»”. As with broadcasters, the draft law elaborates no procedure for proving the facts of such illegal behavior.
The FreeNet Ukraine Coalition shares the concerns expressed in the statement of the Human Rights Agenda regarding the absence of systems for independent oversight over the SSU in the draft law and how the draft law creates the conditions for the systematic violation of human rights.
Given the concerns described above, the undersigned civil-society organizations call on People’s Deputies of Ukraine to:
- Reject draft law № 3196-d “On Amendments to the Law of Ukraine ‘On the Security Service of Ukraine’ Concerning the Improvement of the Organizational and Legal Framework of the Security Service of Ukraine” and initiate a public consultation process to reform the SSU on the basis of respect for human rights and the lawful, legitimate, and appropriate scope and design of the SSU’s authority.
Members of the FreeNet Ukraine Coalition:
Digital Security Lab
Human Rights Platform
ZMINA Human Rights Centre
Freedom House Ukraine Office
Ukrainian Helsinki Human Rights Union
Mykola Kostinyan