The President as Superior for Security Service of Ukraine: Is It Constitutional?

Ukraine retains the Soviet legacy in many areas. This is especially noticeable in the law enforcement and national security sectors. The main national security actor — the Security Service of Ukraine (SSU) — still operates on the model of the Soviet KGB. It is evidently in several dimensions.

First, the agency has never been reformed, except losing the authority to conduct foreign intelligence operations in 2005 — this function was assigned to the specially created body, the Foreign Intelligence Service of Ukraine.

Second, the number of SSU’s employees is incredibly high — nearly 27 thousand (the exact number of officers is unknown). Many SSU officers work undercover for years in all sort of government agencies and bodies, including the courts (high courts as well), and state-owned enterprises. A large number of officers of the domestic secret services is perhaps the very first sign of a totalitarian and, consequently, post-totalitarian states.

Third, the SSU — as well as the Soviet KGB — has the authority to run criminal investigations. In other words, the SSU is not just a domestic security agency (counterintelligence service), it is a law enforcement agency as well. Although a number of Ukrainian laws tie certain crimes with the investigative jurisdiction of different law enforcement agencies, the imperfection of the policies allows the SSU to investigate any crime (literally, any crime). This issue may be resolved by the prosecutor’s office, but the prosecutor’s office usually does not object to the SSU investigating what it considers necessary to investigate.

Moreover, the SSU exercises its law enforcement power to undermine the investigations of other law enforcement agencies. For example, at the end of 2017, the SSU arrested number of detectives of the National Anti-corruption Bureau of Ukraine (NABU) who were acting undercover, made public detectives’ real identities and disclosed to the public methods of the NABU undercover activities. SSU’s intervention into the NABU operations was authorised by then-Attorney General Yuriy Lutsenko. The NABU Director said that such intervention stopped a number of the NABU undercover operations and made it indefinitely impossible to conduct new ones.

Finally, the SSU is subordinate exclusively to the President, and there are no mechanisms of parliamentary or other effective control over it.

At first glance, the subordination of the SSU to the President has nothing to do with tradition and is fully complying with the Constitution of Ukraine. According to the Constitution, the executive power is divided between the Cabinet of Ministers (Government of Ukraine) and the President, where the President: (a) leads in the fields of security and defence; (b) presides on the National Security and Defence Council (where the Head of the SSU is also a member); (c) appoints the Head of the SSU (with the confirmation of the Parliament).

Despite all this, there is a huge difference between as it was (in the Soviet period) or as it continues to be (retaining the Soviet legacy) and what Ukrainian Constitution really says on an issue.

Last year the Constitutional Court of Ukraine upheld that agencies which run criminal investigations must be part of the executive branch, which is headed by the Cabinet of Ministers (Government of Ukraine), and that direct or indirect influence of the President on them undermines the principle of the separation of powers and can construct threatens to the rights and freedoms.

What is noteworthy that the Constitutional Court of Ukraine made this conclusion in a case regarding the NABU and the State Bureau of Investigation, leading investigative agencies in Ukraine. The case was that the Constitutional Court rejected the amendments to the Constitution which was drafted by the President. According to these draft amendments, the NABU and the State Bureau of Investigation chiefs shall be appointed by the President himself (without any confirmations).

So, the Constitutional Court of Ukraine stands on the conception that the supreme law of the land does not allow the President to be superior over any agency which authorised to run criminal investigations.

However, there is something more. If take the rulings of the Constitutional Court with all seriousness, we must admit that the President cannot be the superior of the SSU even if the agency loses power to investigate crimes. The main point of Constitutional Court rulings is that any agency which operates on a field of law enforcement or national security cannot be inferior for the President. Because these fields are a domain for and thus must be running by the executive branch with the Cabinet of Ministers on the top. Even now, the main national defence actors — Ministry of Defence, as well as National Guard and State Border Guard Service — are subordinate to the Cabinet of Ministers, not to the President. And such an order of things does not obstruct the President from fulfilling his constitutional duties on defence.

The only body in this field that can be subordinate to the President is the National Security and Defense Council. This is how the supreme law of the land constituting and restrain Presidential power. Therefore, the first thing — and the cardinal one — that future reform of the SSU should embody is the Constitutional commandments.

Volodymyr Petrakovskyi, Centre of Policy and Legal Reform (Kyiv, Ukraine)
Source: Ukrainian Liaison Office in Brussels