The authorities still won’t dare to restart the BEB — Bureau of Economic (In)security

The authorities still won’t dare to restart the BEB — Bureau of Economic (In)security

The Bureau of Economic Security has acquired a reputation for being an extremely ineffective and corrupt agency since its launch. That reputation is owed first and foremost to the bureau’s former director, Vadym Melnyk, who carried over into the new body some of the worst old practices of the tax police, along with many of its personnel.

This immediately buried all hopes that the country would finally get an institution to investigate economic crimes rather than another lever of pressure on business, notes the publication ZN.ua. The bureau’s low effectiveness and chronic personnel problems even put the question of shutting down the BEB and declaring the experiment a failure on the agenda. But a last chance to reboot the agency was granted, because, overall, the idea of creating a pre-trial investigation body with an analytical function to handle economic investigations is correct. The only question is whether there is confidence that this chance will be properly used.

At the end of September, a group of members of parliament registered a new bill No. 10088 intended to reboot the Bureau of Economic Security, eliminate political influence on the BEB from the Office of the President, and increase the effectiveness of investigations under the bureau’s jurisdiction. Among the co-authors are the heads of the parliamentary tax and anti-corruption committees, Danylo Hetmantsev and Anastasia Radina, members of the temporary investigative commission chaired by Yaroslav Zheleznyak, and several other colorful figures.

Overall there is little that is new, since an earlier version of a nearly identical draft law, which carried number 9080, was submitted to the Verkhovna Rada based on the work of that TIA. The principles intended to make the Bureau more effective were preliminarily implemented during the attestation of prosecutors at all levels, the basis of which was laid during the tenure of Prosecutor General Ruslan Riaboshapka 2019. The method of forming the competition commission is a compilation of conclusions drawn from the experience of “learning from mistakes” during competitions at the State Bureau of Investigations, the first competition at the BEB, and so on.

In fact, the bill introduces the following changes: the director of the Bureau will be chosen under a new format for forming the composition of the selection commission, where, instead of a method questionable from the standpoint of the Constitution of Ukraine, the predominant role of representatives from international partners is introduced.

If today the relevant commission includes three persons from the National Security and Defense Council of Ukraine, three persons from the Cabinet of Ministers, two from the Verkhovna Rada nominated by the tax committee, and one representative from the law enforcement committee, then under the new procedure there will be four representatives from international partners, submitted by the government, as well as three from the Cabinet. A quite balanced construction, and most importantly, constitutional.

Another important innovation is the attestation of all BEB employees except for administrative staff. This attestation is an extremely important step, given the method of selecting detectives for the Bureau during Vadym Melnyk’s leadership, who himself was selected by the previous commission “named after Tymofii Mylovanov,” i.e., entirely predictable and controllable by the Office of the President.

After all, we already went through this in the prosecutor’s offices. Then, I recall, 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 course, after Riaboshapka’s departure the statistics for cleaning regional and local prosecution bodies under Iryna Venediktova’s leadership fell by half.

However, unfortunately, the bill’s authors did not pay attention to one important detail. During the reform of the prosecutor’s office, the following procedure was established: after failing attestation a dismissed prosecutor could not be reappointed to the position of officer of justice for two years. In effect, it was a temporary “blacklist.” By contrast, in the BEB attestation there are no similar restrictions. So, if one keeps knocking long enough, the door may indeed open.

Instead of this safeguard, the lawmakers invented another prohibition that is not fully logical. Any person may not in the future be appointed to a position in the BEB if before 1 January 2023 they held in total at least one year in any investigative and/or operational position in the tax police, the prosecutor’s office, the SBU, the DBR, the National Police, or the militia. It’s as if everything fits the principle “no old cadres allowed,” but on the one hand, where then will you find enough specialists who know how to investigate economic violations, and on the other hand — what did prosecutors do to deserve this? There is no logic in banning them, or in cutting everyone with the same comb.

One more extremely important question that parliamentarians did not address is this: how to dismiss everyone, not just the legal leadership of the BEB? Deputies failed to delve into this problem and did not want to ask relevant experts.

So I will remind you that the director of the Bureau is not a procedural manager in the sense of the Criminal Procedure Code of Ukraine; accordingly, he can simply be called an “administrator,” no offense intended to the many directors of the agency. Processes depend on a much wider circle of people.

For example, recall recent times when deputies said that the co-heads of the bureau, Eduard Fedorov and Vitalii Hahach, were controlled by Tatarov. At the same time, sources close to the BEB mentioned Oleksandr Tkachuk as no less of a “Tatarov figure.” In the end, Fedorov was removed entirely, Hahach is somewhat in the spotlight, and Tkachuk in active economic positions runs a division of detectives. He will remain in his position after the reboot, at least until he passes attestation. And he is not alone. It is not our aim to throw accusations at BEB staff; our aim is to remind lawmakers that what needs changing is not the leaders, but the institution. Therefore, focus should be on minimizing personal influence on its work.

How to do this? Implement a full reboot, not half-measures. There is nothing worse than unfinished work that discredits the good goal and stated tasks. In the case of the BEB there is simply no time for a “long road of trial and error.”

Given this, the proposal to re-subordinate the BEB from the Cabinet to the Ministry of Finance looks no less strange. Why? The Bureau should be a classic pre-trial investigation body with an analytical function. How will the Ministry of Finance help with that? And how will the BEB help the Ministry of Finance? We hope the aim was not to make the BEB an “organ for filling the budget,” but if so, such ideas will certainly not strengthen the independence and impartiality of investigations, and will once again bring us closer to the times of the tax police with “a quota set from above.”

However, there is a positive. MPs listened to the proposal that the competition commission should submit a single candidate for head of the Bureau to the prime minister, not three. There should be no discretion for the head of government, because then the competition would each time turn into an outright farce, and the prime minister would always choose the most loyal among three candidates.

International partners are actively pushing the process of rebooting the BEB. In meetings with them this problem is repeatedly raised. The American side takes a fairly clear position: the election of the Bureau head under the new rules and the attestation of employees (key attention on detectives and analysts — O.L.).

Interestingly, the text of the bill states that refusal to take a polygraph is grounds for dismissal after attestation. However, in the final provisions they somehow forgot about the “psychophysiological test,” stating only abstractly that “attestation may also include other stages.” The polygraph itself is a dubious improvement. If deputies at least once had taken part in selections with such a test, they would know that it is about as useful as milk from a billy goat.

I recall how in 2018 I personally organized with colleagues on the DBR selection commission polygraphs for hundreds of people. The effectiveness then approached zero, given that our polygraph school is far from the American one. But the discretion embedded in the draft law is incomprehensible and suspicious. A psychophysiological test either exists or it does not. Otherwise you get a kind of “Schrödinger’s polygraph,” which for someone may become grounds for dismissal.

International partners also emphasize subordination to the Cabinet, not the Ministry of Finance, and, attention, further consolidation of the BEB’s powers with exclusive jurisdiction over financial crimes.

In other words, the West is not just for a reboot; it wants to restore the BEB idea to its original variant — transferring investigative functions in economic crimes to the Bureau from other justice bodies, excluding NABU. Well, the position of American partners is the most relevant and viable; otherwise all this simply makes no sense.

Our sources claim that even the Office of the President, in the person of the system’s “controller” for criminal justice, Oleh Tatarov, agreed to both the rebooting of the BEB leadership under the new procedures and the attestation of employees and the transfer of functionality. Only the last point the OP is ready to implement only after the war. On the one hand, it’s surprising that Tatarov agreed to anything at all. On the other — he agreed with a deferral, which means he left himself the chance to replay everything when the time is right.

In summary, I should note that lawmakers once fully analyzed the problems of the BEB’s work, preparing the correct foundational draft law No. 9080, on the basis of which draft No. 10088 was developed. However, the document still needs refinement, there is no doubt about that. Because if we again leave holes in the legislation, we will be claiming that others are to blame.

The road is mastered by the one who walks it. And systemic change in criminal justice is for those who think.

Oleksandr Liemenov, Chair of the Board, StateWatch; published in ZN.ua