The Security Service of Ukraine works beyond its authority, which affects national security
SSU, as a secret service, must deal with its direct responsibilities — counterintelligence of threats to national security, but not the investigation of crimes. Analysis of key negatives of the existing mixing of functions.
We are all accustomed to the fact that SSU investigates crimes. It detains someone, exempts something. And lately, we have enough news about the “successes” of SSU.
It seems that the agency is countering threats. But how and does it really counteract? And is it at all appropriate for SSU to investigate crimes? The SSU reform needs honest answers to these questions.
It so happened that we do not know any security agency that does not investigate crimes. Because since our independence, this function of KGB of USSR (The Ukrainian Soviet Socialist Republic) has been preserved by the Security Service of Ukraine. Like the Federal Security Service of the Russian Federation (FSB).
Therefore, most of us even find it difficult to understand how the agency should counter threats. Unless, to catch someone and throw them in jail, at least for the duration of the investigation.
However, SSU is, in fact, a special service. Its purpose is to counter threats to national security, national interests and terrorism before they harm.
That is, to detect and neutralize threats before someone dies, whether critical objects are blown up, secret information is stolen, or actions are taken to seize power. Or irreparable damage has been done to national interests.
This is what the special services should do. By conducting counterintelligence activities against foreign intelligence services, terroristic and other organizations in our country.
In fact, this is what modern special services in democratic, legal countries do. After all, counterintelligence activities and the investigation of crimes are different in scope and stages of work, which have different goals.
Counterintelligence is aimed at detecting and preventing hostile intentions for the state of the subjects before they become crimes or cause other harm. Instead, an investigation is an activity that occurs mainly after the commission of punishable acts.
It’s like comparing prevention and surgery. Of course, it is better and cheaper to prevent the disease. Instead, if one person does it, the purpose of his activity loses clarity. And with the temptation of corruption, you can even allow a more critical situation to profit.
Therefore, the expediency of separating counterintelligence activities and investigating crimes is obvious and justified. However, not everyone thinks so. The Security Service of Ukraine accustomed to the current functionality, does not want to lose it.
The service proposes to maintain an investigation into at least the groups of crimes against the foundations of national security, terrorism and against peace and humanity. Or at least their operational support. Although we all understand that “appetite comes with food”.
The fact is that today the law allows SSU to investigate 44 types of crimes. Not all of them concern state security. For example, smuggling, white-collar crimes, etc.
Although the Service can investigate and it investigates almost any crime. Of course, this is an abusive act. But the problem is broader. It consists in having the power to investigate crimes in general.
For a better understanding, we have identified the key negative consequences of the investigation and counterintelligence by one body – SSU:
- Lack of opportunity to fully focus on counterintelligence, analytical activities. From narrowing the scope of activities to criminal offences and the possibility to react at a later stage.
- “Depreciation” of counterintelligence activities. The ability to investigate allows the use of measures of influence (seizure of property, detention) including public, in contrast to counterintelligence activities (foot surveillance, wiretapping).
Instead, it is premature to stop counterintelligence activities in some cases.
- Abusive acts and corruption. An investigation is a formal, public enforcement procedure. To start an investigation and to carry out investigative actions is, definitely, to bother someone.
Whether this is justified or not. There is enough suspicion that it is not difficult for SSU. It is not difficult to close the criminal matter later.
- Decreased motivation and professionalism of the special-service agent. As a result, the counterintelligence activity itself is devalued.
- Harm to investigations, not investigated by the Security Service. An investigation is a taking of evidence through a legal pathway. In particular, through the body that is authorized to do so.
However, the Security Service of Ukraine, having the opportunity to investigate certain crimes, can investigate and constantly it investigates others. Questioning the legality of the evidence and the prospects of the case in court.
- Obstruction of other bodies to investigate crimes. Because of the possibility to take away cases, depriving other bodies of responsibility for the results of work in their spheres.
Therefore, the combination of these functions has a system-mitigative nature for counterintelligence activities. This precludes any expediency of combining them. Accordingly, they need to be separated as soon as possible.
Only then will it be possible to talk about ending the SSU’s interference in the economy and ending obstacles to anti-corruption bodies – in order to focus on state security instead..
Evidence of the inappropriateness of keeping the Ukrainian Security Service in charge of investigating crimes is provided by analysis of the Service’s activities. That is, data on the number, types and results of criminal cases that are being investigated by SSU (Pic. 1).
Pic. 1 The criminal cases investigated by SSU during 2013-2020, divided by groups of crimes
Over the past 8 years, SSU has registered an average of 3327 cases during the year. Of these, the average percentage transferred to court – 22.9%, closed – 10.8%, suspended – 3.6%, ongoing (unfinished) – 62.7%.
Pic. 2 Criminal cases of the Security Service of Ukraine during 2013-2020
At the same time, it is possible to note striking differences in the SSU’s activities in 2013 and 2018. In 2013 was the highest indicator of closed cases in 8 years – 40%.
2018 was characterized by an almost double increase in the number of criminal cases compared to the previous year. The share of closed cases has also increased significantly, especially their number. More than in the previous 4 years.
The above graph indicates the strong connection between the Service’s activities and the political situation in the country, and, accordingly, the opportunism and dependence of the Service’s work on the centers of influence.
A striking example is 2018, when before the presidential election it was necessary to use administrative resources to ensure a better result. As we see, this took place in the activities of the Service. In turn, the investigation of a large number of other cases is fully consistent with the need to “thank”. That means “do not interfere with the investigation in their own interests”.
A more detailed analysis of cases investigated by the Security Service of Ukraine in 2018 shows that the work of the Service is largely “off-purpose”. After all, the share of non-investigative crimes (Pic. 3) increased abnormally and was twice as large as the corresponding number of investigative crimes.
Pic. 3 The cases, opened by SSU, during 2018
As we can see, the political ammunition before the elections were provided by opening cases against officials and the judiciary. I would like to note that the number of cases opened by the Security Service of Ukraine for “official” crimes in 2018 is 3.14 times higher than others, taken together in 7 years.
However, the use of the Service for political purposes is not the only reason to take away SSU’s authority to investigate crimes. The enquiry of cases under investigation / not-under investigation needs special attention.
Pic. 4 Division of SSU cases on the basis of investigation during 2013-2020
As you can see, the enquiry of crimes not-under investigation is a constant practice of SSU. This is due, in particular, to the absence of bans and the need to “respond”. Conditionally related cases also deserve attention. These are mostly “white collar” crimes.
The Service can investigate them only if they are directly related to crimes in the field of state secrets. However, their ratio is very different. The whitr collar crimes are many times more. Although they must be of a derivative nature and, accordingly, a commensurate number. Just think: the share of cases opened by SSU for 8 years that are not directly under its jurisdiction is 40% (10,769 cases).
Hence the conclusion that the key problem in the investigation of crimes by the Security Service of Ukraine is not the scope of activities, but the existence of this function. Therefore, a relevant way to solve the problem is to remove the function of SSU to investigate crimes.
At the same time, a more relevant indicator that SSU is using the function of investigations for other purposes is the division of cases under investigation, given the formal affiliation of cases to the sphere of state security.
Pic. 5 The formal affiliation of cases, investigated by SSU, to the sphere of state security during
To leave aside 2013 and 2018, as mentioned above, we see an equally high share of investigations by the Security Service of Ukraine of non-state security cases. In general, their share fluctuates within 35-84% per year for 8 years. In general, for 8 years the share of open cases not related to state security is 54.7%. That is more than half – 14,558 cases.
For the analytical study, we took the reporting information on the form № 1 “Single Report on Criminal Offenses”, which does not provide for the registration of cases opened in previous years from the official website of the Office of the Prosecutor General. Which, however, does not affect the content and relevance of the study. At the same time, statistical information in the form of No. 1-SL “On the work of security investigative bodies” was not provided for us in a volume, sufficient for such a study.
We also pay attention to the use of data for 2020 (up to and including October).
Therefore, it is not necessary to talk about the use of the powers of the Security Service of Ukraine within the law. And about the focus on public security – even more so.
At the same time, it is not a question of law or temporary circumstances. This is a matter of order in the work of SSU. An order that does not meet the requirements of the rule of law or the needs of our young state.
An order that is an “anchor” in the development of the law enforcement and security sectors, economic development, anti-corruption, etc.
Therefore, the solution to this problem is to deprive the Service of the function to investigate crimes. Which, in fact, two years ago was laid as a basis in the conceptual law on the national security of Ukraine. As a step towards NATO standards.
Without exaggeration – this is the most important aspect of SSU reform. And not only because the Service will be able to continue direct intervention in various spheres, “cover” officials and oligarchs, illegally “gain” wealth and support the existence of the entire “system”.
And because it is the function of investigating crimes that levels the counterintelligence and other functions of the special services. Moreover, it is the investigative function that often tempts presidents to use the Service to their advantage. Thus, causing the involvement of presidents in cases not provided for by law.
The Security Service of Ukraine should be a key, reliable body of state security. A body without whose effective work we will not be able to withstand non-military, hybrid threats. But first, it is necessary to remove the investigation.
The version was published in the Ukrainian media