Weekly analysis for 12 — 18 August

“Resetting” the SBI based on the BES model

Event

On August 6, 2025, a group of MPs representing Holos, European Solidarity, and Servant of the People (14 MPs in total) registered draft law № 13602 — Draft Law on Amendments to Certain Legislative Acts of Ukraine to Improve the State Bureau of Investigation (SBI) Functioning in the Verkhovna Rada of Ukraine (VRU). The draft law provides for the following:

– amending the status of the SBI from a law enforcement agency to a central executive body;

– changing the coordinating authority of the SBI from the President of Ukraine to the SBI Director;

– changing the appointing authority for the position of SBI Director from the President of Ukraine to the Cabinet of Ministers of Ukraine (hereinafter – CMU);

– changing the body authorized to dismiss the SBI Director from the Verkhovna Rada of Ukraine to the CMU;

– electing the new SBI Director using a six-member selection commission, with three members nominated by the CMU and three by international CSOs that have provided Ukraine with international technical assistance in the area of anti-corruption or law enforcement over the past three years;

– electing the SBI Director through a competition where international experts hold a decisive vote, following the model used for selecting the head of the BES;

– launching two commissions after the reappointment of the SBI Director: one for re-certification and one for recruitment of new staff (in both cases, half of the members are made up of independent civil society experts);

– introducing a Public Oversight Council and a Disciplinary Commission within the SBI, etc.

CPLR’s assessment

The proposed procedure for selecting the SBI Director is not new; it has already been tested during the competition for the Director of the Bureau of Economic Security of Ukraine (BES). Overall, it can be assessed positively.

At the same time, a number of provisions in the draft law, instead of correcting the deficiencies in the competition procedure for the BES Director and improving it to achieve greater legal certainty, transparency, and trust, deliberately reinforce those shortcomings. This is likely to become a point of contention and political struggle within Parliament and therefore cannot be supported.

For example, the draft law requires that the competition commission for selecting the SBI Director include at least three representatives from international or foreign organizations, nominated through a joint list of candidates. The wording “at least three persons” could create a situation where the CMU is effectively restricted in its discretion to choosing from exactly three nominees for three seats. This does not align with both democratic principles and the draft law’s own provision that the CMU “appoints members of the competition commission at an open meeting”. In such circumstances, the function of this constitutional body would be reduced to merely “approving” the list of candidates rather than freely identifying or appointing them.

A similar flaw arises in the provision of the draft law that requires the competition commission to submit to the Prime Minister of Ukraine a single candidate for the position of SBI Director, selected from among the applicants, who is automatically deemed the winner of the competition. This again renders the CMU’s role from a substantive to a largely ceremonial one, limited to merely endorsing the proposed candidate. It would appear more appropriate for the Government of Ukraine, as a constitutional authority, to be presented with at least two candidates for the position of SBI Director.

The competition procedure and its key elements similarly require improvement. Specifically, the law should establish an exhaustive list of the types of examinations (tests) that may be administered; require the competition commission to approve criteria for evaluating candidates’ practical assignments and the reasoned reviews of such assignments; and ensure the publication of candidates’ completed assignments, along with scores and reviews, on media resources. The practical assignment stage in the competition for the Director of the BES triggered widespread media criticism,  due to unclear evaluation criteria and allegations of non-transparency. By contrast, during the competition for disciplinary inspectors of the High Council of Justice, the commission published candidates’ practical assignments and scores. This approach did not compromise state or service interests, confidentiality, or privacy protections; to the contrary, it enhanced public trust in the competition process, increased predictability of the procedure for future applicants, and helped dispel suspicions of favoritism or other unwritten criteria in the commission’s work.

The law should also provide, upon a candidate’s request, for a procedure for the competition commission to review (appeal) the results of all types of tests or assessments that are not automatically scored by computer systems and instead rely on subjective evaluation.

It appears that only under such conditions can the Draft Law №13602 genuinely be expected to strengthen public trust in the law enforcement system and state institutions as a whole, as the fairness and effectiveness of pre-trial investigations ultimately begin with fair, transparent, and competent appointments.