Reboot the Economic Security Bureau of Ukraine: mission (im)possible?

Since its inception, the Economic Security Bureau of Ukraine has gained a reputation as an extremely inefficient and corrupt department. This reputation of the Economic Security Bureau of Ukraine is primarily due to the ex-director of the department, Vadym Melnyk, who adapted the rather dubious and old practices of the tax police into the new body. In addition, he employed the same old staff in the Economic Security Bureau of Ukraine. This immediately buried all hopes that the country would finally have an institution that would investigate economic crimes, and not another lever of pressure on business. The department's low efficiency and chronic personnel problems even put the issue of closing the Economic Security Bureau of Ukraine and declaring the experiment a failure on the agenda. But the last chance to restart the body was still given, because in general, the idea of creating a pre-trial investigation body with an analytical function, which will take care of economic investigations, is correct. But there is no certainty that this chance will be used properly.

At the end of September, a group of people's deputies registered a new draft law No. 10088, which should reboot the Economic Security Bureau of Ukraine, eliminating political influence on the Economic Security Bureau of Ukraine from the office of the President of Ukraine, and increase the effectiveness of investigations under the jurisdiction of this agency. Among the co-authors are the heads of the tax and anti-corruption parliamentary committees Danylo Hetmantsev and Anastasia Radina, members of the temporary investigative commission headed by Yaroslav Zhelezniak, and several other well-known people.

In general, there is not much new, because the previous version of the almost identical project of the law, which was numbered 9080, was submitted to the Verkhovna Rada of Ukraine based on the results of the work of the specified temporary investigative commission of the Verkhovna Rada of Ukraine. The principles by which efforts will be made to make the Bureau more efficient were previously implemented during the certification of prosecutors of all levels, the foundation of which was laid in 2019 during the time of Prosecutor General Ruslan Riaboshapko. The method of formation of the competition commission is a set of conclusions based on the results of "trials and errors" during competitions at the State Bureau of Investigation, the first competition at the Economic Security Bureau of Ukraine, etc.

In fact, the draft law introduces the following changes: the director of the National Security and Defense Council of Ukraine (NSDC) is elected according to a new format for forming the composition of the competition commission, where instead of a questionable, from the point of view of the Constitution of Ukraine, method, the predominant role of representatives from international partners is introduced.

If today the relevant commission includes three people from the National Security and Defense Council of Ukraine, three people from the Cabinet of Ministers of Ukraine, two from the Verkhovna Rada of Ukraine at the request of the tax committee and one representative from the law enforcement committee. Then, according to the new procedure, there are four representatives from international institutions, which are represented by governmental authorities, as well as three from the Cabinet of Ministers of Ukraine. A completely balanced construction, and most importantly, it really complies with all constitutional principles.

Another important feature is certification of all employees of the Economic Security Bureau of Ukraine, with the exception of administrative staff. This certification is an extremely important step, taking into account the method of selecting detectives of the Bureau during the leadership of Vadym Melnyk, who himself was selected by the previous commission "in the name of Tymofiy Mylovanov", that is, completely predicted and under the control of the office of the President of Ukraine.

After all, we have already gone through it in the prosecutor's office. Then, let me remind you, 55% (or about 700 prosecutors) were dismissed from the General Prosecutor's Office of Ukraine, which was immediately transformed into the Office of the Prosecutor General of Ukraine. Of course, after the dismissal of Riaboshapko, the statistics of the clearing of prosecutor's offices at the regional and local levels, under the leadership of Iryna Venediktova, fell in half.

However, unfortunately, the authors of the draft law did not pay attention to one important detail. During the reformation of the prosecutor's office, the following procedure was established: after failing to pass the certification, a dismissed prosecutor could not be reappointed to the position of a justice officer for two years. In essence, this is a "certificate of non-charity", albeit temporary. On the other hand, there are no such restrictions in terms of certification at the Economic Security Bureau of Ukraine. So, if one knocks for a long time, the door may still open.

Instead of this fuse, the lawmakers invented another, not completely logical prohibition. Any person may not be appointed to a position in the Economic Security Bureau of Ukraine in the future, if he or she held any investigative and/or operational position in the tax police bodies for a total of at least one year before January 1, 2023. Also, a person cannot be appointed to a position in the Economic Security Bureau of Ukraine in the future if he or she worked in the prosecutor's office, the Security Service of Ukraine (SBU), the State Bureau of Investigation (SBI), the National Police of Ukraine and militia. Yes, it seems that everything fits into the context of the principle of "not allowing old personnel to new jobs", but, on the one hand, where can we get a sufficient number of specialists who know how to investigate economic violations, and on the other hand, what is the fault of the prosecutors? There is absolutely no logic in their non-admission, as well as in the assertion that everyone should be evaluated equally.

Another extremely important question, which the parliamentarians have not yet begun to consider: how to fire all employees, and not just the legal heads of the Economic Security Bureau of Ukraine? People's deputies did not manage to delve into this problem, they did not want to ask specialized experts.

So I would like to remind you that the director of the Economic Security Bureau of Ukraine is not a procedural manager in the sense of the Criminal Procedure Code of Ukraine, accordingly, he can be called simply "administrator", so that the numerous directors of the department do not take offense at us. The processes depend on a much wider range of people.

For example, let's recall the recent times, when deputies expressed that at that time the co-heads of the department, Eduard Fedorov and Vitalyi Gagach, were controlled by Tatarov. At the same time, sources close to the Economic Security Bureau of Ukraine also mentioned Oleksandr Tkachuk as no less than "Tatarov's protégé." In the end, Fedorov was removed completely, Gagach is somewhere in full readiness for action, and Tkachuk is in combat economic positions and manages the unit of detectives. He will remain in his position even after the reboot, at least until the certification is passed. And he is not alone. It is not our goal to present claims to the employees of the Economic Security Bureau of Ukraine, our goal is to remind the legislators that it is not the leaders that need to be changed, but the institution. Therefore, it is worth focusing on minimizing personal influence on the work of this office.

How to do it? Implement a full-fledged restart, and not launch half-hearted reforms. There is nothing worse than incomplete work, which in itself discredits the good goal and the defined tasks. In the case of the Economic Security Bureau of Ukraine, there is simply no time for a "long road of trial and error."

In view of this, the proposal to resubordinate the Economic Security Bureau of Ukraine from The Cabinet of Ministers of Ukraine to the Ministry of Finance of Ukraine looks no less strange. Why? The Bureau should be a classic body of pre-trial investigation with an analytical function. What will the Ministry of Finance of Ukraine do for this bureau in this matter? How will the Economic Security Bureau of Ukraine help the Ministry of Finance of Ukraine? We hope that the goal was not to make the Economic Security Bureau of Ukraine "a body to fill the budget", but if so, then such ideas will certainly not strengthen the independence and impartiality of the investigation, and will once again bring us closer to the times of the tax police with a "top-down plan ".

However, there are also positive things. People's deputies listened to the proposal that the competition commission should submit one candidate for the head of the Economic Security Bureau of Ukraine to the Prime Minister, instead of three. There should be no discretion for the head of the government, because then the competition will turn into outright profanation every time, and the prime minister will always choose the most loyal among the three candidates.

International partners are moving the process of restarting the Economic Security Bureau of Ukraine in every possible way. In particular, this problem is constantly raised at the International Monetary Fund (IMF) meetings. The American side takes a fairly clear position, namely the election of the head of the Economic Security Bureau of Ukraine according to the new rules and the certification of employees (the key focus is on detectives and analysts. – O.L.).

Interestingly, in the text of the draft law, it is noted that refusal to take a polygraph is a reason for dismissal after attestation. However, in the Final Provisions, for some reason, they completely forgot about "psychophysiological examination", indicating abstractly that "attestation may also include other stages". The polygraph itself is a dubious improvement. If officials had participated in selections with such a check, they would know that there is absolutely no point in this. I remember how in 2018, I personally organized a polygraph for hundreds of people with my colleagues from the competitive commission at the State Bureau of Investigation (SBI). The efficiency then approached zero, considering that our printing school still needs to develop for a long time to reach the level of the American one. But the discretion embedded in the draft law is unclear and suspicious. Psychophysiological testing either exists or it doesn't. Because it turns out there is a kind of "Schrödinger's polygraph", which for someone can be a reason for dismissal.

Also, international partners single out subordination to the Cabinet of Ministers of Ukraine, not the Ministry of Finance of Ukraine, and, attention, the further consolidation of the powers of the Economic Security Bureau of Ukraine with exclusive jurisdiction in financial crimes.

In other words, the West is not just in favor of a reboot, it is in favor of bringing the idea of creating the Economic Security Bureau of Ukraine to its original version, as well as the transfer to the Bureau of investigative functions in economic crimes from the Security Service of Ukraine and the National Police of Ukraine. Well, the position of the American partners is the most relevant and viable, otherwise all this simply does not make sense.

Our sources claim that even the president's office, in the person of the "controller" of the criminal justice system Oleg Tatarov, agreed to the restart of the Economic Security Bureau of Ukraine leadership according to new procedures, to the attestation of employees, and to the transfer of the functions of the Security Service of Ukraine (SBU) and the National Police. Only the last item in the Office of the President of Ukraine is ready to be implemented only after the war. On the one hand, it is surprising that Tatarov agreed to anything at all. On the other hand, he agreed, so to speak, with a postponement, which means that he left himself a chance to replay everything when the right opportunity arose.

Summing up, I must note that the people's elected officials at one time fully analyzed the problems of the Economic Security Bureau of Ukraine, preparing the basic draft law No. 9080, on the basis of which project No. 10088 was created. However, the document still needs to be finalized, there is no doubt about that. Because, once again making controversial points in the legislation, we will claim that others are to blame.

The road will be mastered by the one who walks. And the system of changes in criminal justice will be overcome by those who think.