Three Problems of the State Bureau of Investigations: when the bureau will start work and what is hindering it

Three Problems of the State Bureau of Investigations: when the bureau will start work and what is hindering it

Last week candidate testing began for investigator positions at the State Bureau of Investigations.

For now this concerns forming the central office; shortly the auxiliary staff will also be chosen: lawyers, HR specialists, and financiers. It concerns 219 positions, for which 1646 candidates are competing at this stage. Their selection is handled by the first internal commission. The results of the external commission, which selects heads of divisions, and the second internal commission (responsible for recruiting staff for territorial offices) are not so encouraging – in fact they have not even started testing yet.

Head of the SBI Roman Truba has repeatedly stated that this agency will begin work by 1 September; to do that it needs to recruit 30% of the bureau’s staff. Experts, however, predict the State Bureau of Investigations will launch “by the end of the year.”

Meanwhile, Chief Military Prosecutor Anatoliy Matios is preparing an analogue of the SBI for military proceedings, although under current law his office is supposed to transfer its cases to Truba. Amendments to the law that will allow the State Bureau to be launched in some way are now going through the committee and are expected to reach the plenary chamber for second reading at the beginning of June.

INSIDER looked into when the State Bureau of Investigations will start operating and what stands in the way of that process.

Three selection commissions

At the end of last year the SBI received its top leadership—the selection of the agency director and his two deputies had dragged on for a year and a half. As a result of political bargaining it was headed by the then little-known prosecutor Roman Truba.

As of early April 2018, 11 people were working at the bureau. Three competitions are currently underway for 701 positions in the SBI, with more than 10 thousand candidates participating: for senior positions, central office staff, and territorial office employees.

“For the agency to announce the start of work, at least 30% of employees must be on staff—this is a legal requirement. That is why we are holding such a large-scale competition, since we must begin work in September,” Truba is convinced.

Three selection commissions are working on this process. The external commission, which already chose the SBI’s top leadership, must determine candidates for other senior positions and form the internal control directorate—about 160 people in total.

At the moment, the competition is taking place for only 27 of those positions. In expert circles there are talks that the external commission should be removed from the process because of its low efficiency and politicization.

“The professional qualities of the external commission raise huge questions for me, primarily because of its politicization—we have said this more than once. Let them finish selecting 27 candidates, but further selection should be taken away from them; for that we need changes to the law,” believes the chief expert of the Reanimation Package of Reforms, Oleksandr Lemenov.

External commission member Denys Monastyrskyi notes that it cannot be removed in the middle of the competition, but agrees that its powers should be curtailed, particularly regarding certain positions. According to him, the key problem is that the commission operates with only 9 members: deputies, lawyers, and lecturers, for whom this is not a primary job.

Monastyrskyi says that between 6 and 12 June there will be a commission meeting where the list of persons admitted to the competition, the testing schedule, and likely the interview schedule will be determined. The entire process should be completed by 12 July, because that is the last plenary week—deputies on the selection commission will go on vacation, as will the lecturers.

However, at this stage complaints have also arisen about the external commission. A selective study by the organization StateWatch showed that candidates with high corruption risk were admitted to the competition.

“We randomly took 30 people from a list of 731 candidates. Of them, 13 people were subjects of journalistic investigations, 8 were or are subjects of criminal, administrative, or disciplinary proceedings, 5 were subject to or avoided lustration, 23 have nontransparent assets, and 8 of them had situational or have lasting political ties. And this trend, we are convinced, permeates the entire list,” clarified advisor to the organization Volodymyr Petrakovskyi.

Two internal selection commissions were formed to select rank-and-file SBI staff. They are assisted by employees of the Academy of the Prosecutor’s Office, scholars, and experts who conduct primary checks of candidates and provide their conclusions to the commissions, which significantly saves time.

The first internal commission selects 219 positions in the central office and has already begun testing candidates. There are three stages of the competition: testing on knowledge of legislation and practical tasks, a polygraph, and an interview. Now commission members are trying to swap the last two stages so that only those who have already passed the interview take the polygraph.

Otherwise about a thousand people will have to be checked on the polygraph. One polygraph examiner can effectively process 3 people per day; on the civil service there are, by various estimates, from 12 to 15 such specialists, and services of private polygraph examiners cost considerable money—2 thousand hryvnias for one check.

If the first internal commission is handling its task so far, the second will start testing at best in two weeks. It received about 8 thousand application packages.

“We have about 5 thousand candidates for 219 positions; the second commission has 455 positions and literally a few thousand more application packages. We have been conducting testing for two days, and they plan to start in two weeks, while they will be using our developments. The commission is working weakly,” sums up the secretary of the first internal commission, Oleksandr Lemenov.

Three bills to launch the bureau

Even before the outcome of the selection for the SBI’s top positions, experts grew concerned about a number of inconsistencies and shortcomings in the current version of the SBI law. For more than a year and a half a bill by selection commission member and MP Mykola Palamarchuk lay in parliament without consideration.

Only in the spring of 2018 did the Verkhovna Rada seriously take up the necessary changes. The Committee on Legislative Support of Law Enforcement Activities reworked Palamarchuk’s bill and submitted it to the plenary chamber. But before that two alternative documents appeared: a government bill and a bill authored by a group of MPs led by Mustafa Nayyem and Olena Sotnyk.

“Our bill in all indicators and criteria covers a broader range of issues, is supported by experts, was unanimously approved by the relevant committee, and its qualitative advantages were publicly recognized by the head of the SBI himself,” Nayyem wrote then, adding that “unhealthy intrigues” had begun around the issue.

None of the three documents passed the plenary chamber on the first attempt. Therefore, the Kozhemyakin committee combined the main provisions into one 5395-page bill—based on Palamarchuk’s draft. On 17 May it successfully passed first reading; additional amendments are now being made. The committee hopes to put it up for final vote immediately after considering the bill on the Anti-Corruption Court.

Before the first reading SBI Director Roman Truba noted that the document introduces the position of operative officer, because due to its absence among the positions listed in the law the SBI cannot announce competitions for the entire operational unit.

The bill also allows certain bureau units to carry out operational-investigative activities. Under current legislation only the internal security and personal security units may do this. It also specifies the possibility of SBI financing within the framework of international agreements of Ukraine or international technical assistance projects.

Denys Monastyrskyi explains that this document evens out the SBI’s jurisdiction, because it is defined differently across various laws; some categories that had “fallen out” during this time are also added. For example, heads of regional state administrations used to be civil servants, but now they are not, yet they should definitely fall under SBI consideration.

“Controversial changes include relocating centers of territorial directorates to 5 in 7 cases to other cities, for example from Poltava to Kharkiv, from Mykolaiv to Odesa, from Khmelnytskyi to Vinnytsia. The authors intended to move them out of large million-plus cities—where there are questions about judges’ integrity—to less prominent regional centers where courts have never been involved in large corruption cases, so one can hope for greater independence,” clarifies a member of the external selection commission.

In his view, problems may also arise from setting qualification requirements for SBI applicants directly in the law. Until recently this was the prerogative of the head—if specified in this document, the ability to quickly change requirements according to the current situation will disappear. Changing requirements and locations of territorial subdivisions puts at risk applications already submitted.

“The danger of this bill, if it is adopted in its current form, is what to do with already announced competitions: must they be canceled or continued? In transitional provisions this should be clearly specified to avoid legal uncertainty, otherwise we will simply suspend a huge number of people,” summarizes Monastyrskyi’s assessment of the risks.

Oleksandr Lemenov, on the other hand, believes this bill will at least allow the SBI to be launched: “Without it we have no vision at all on how to start it. I think it will pass the parliamentary chamber. It regulates key problems for starting work, for example introducing operative officer positions, because the SBI cannot function with only investigators,” the expert asserts.

Three months for Matios

As is known, Chief Military Prosecutor Anatoliy Matios also applied to be SBI director but did not get the position. After the launch the SBI is supposed to take over investigation of military crimes; the military prosecutor’s office after that will significantly reduce its influence and will retain powers to represent cases in courts.

Matios believes that, in the current situation, the military prosecutor’s office should be vested with the right to fully supervise compliance with and application of laws in all military formations. To that end he proposes creating the State Bureau of Military Justice.

“This right should be secured at least temporarily, for the period of the Joint Forces Operation and the effect of the Law ‘On the Features of State Policy to Ensure Ukraine’s State Sovereignty in Temporarily Occupied Territories in Donetsk and Luhansk Regions,’” Matios believes.

He hopes the corresponding body will be created by September of this year. The initiators of the relevant bill were MPs Andriy Kozhemyakin, Mariya Matios, and Ihor Lapin.

“I believe that by autumn we will give the state such a gift that can balance a society divided into 2 parts. Some believe the greatest threat is corruption, others that it is the war,” Matios said, answering a question about when the bill might be adopted.

However, experts consider creating such a body unlikely. First, there is not much time left before the Rada’s recess; second, the budget does not include funds for a bureau of military justice; third, this contradicts the current SBI structure, which already has a corresponding directorate.

“The third investigative directorate of the SBI will precisely investigate military crimes, and this is an obvious conflict, so one could only transfer this jurisdiction to the bureau of military justice by a separate law. Mr. Anatoliy is hurrying, because if this body launches and shows some results, everyone will understand it is capable of handling these matters and there’s no need to further fragment these agencies,” Monastyrskyi notes.

According to him, only 15 people applied to the competition for the third directorate, while others have about 70 each. The imbalance is obvious, and its root should be sought clearly not in a lack of popularity of military justice, given the current situation in the country.

Oleksandr Lemenov bluntly calls the chief military prosecutor’s initiative “absurd, nonsense, and a return to Soviet times,” and says Matios is currently putting a spoke in the wheel of the SBI’s “war directorate.”

“Matios is blocking the process in every possible way, obstructing the submission of documents by his subordinates, because military prosecutors are supposed to join this directorate, but they are not being given service records and the personnel department is not stamping documents. Matios said: ‘If you want to go to the SBI, resign and go to the SBI,’ but military prosecutors are contract servicemen; they can’t just resign—there are reasons,” explains the expert.

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Considering all the problems described above, launching the State Bureau of Investigations by 1 September, as Roman Truba promised at the final interview, looks unlikely.

“There may be radical problems due to the second internal commission’s inability to get everything done on time. If we select the central office and the competition for territorial directorates lags far behind, the SBI’s launch will be delayed again. And if we recruit investigators and operative officers, but the external commission does not choose leaders, they will not be able to work,” says Lemenov, predicting the SBI will not start earlier than October.

Monastyrskyi is less optimistic; in his view, due to imperfect legislative amendments the launch process will stretch to the end of the year: “In any case, I believe the SBI must start this year, because next year it may simply be denied the chance to launch in connection with the elections; there will be no time to gain momentum,” the selection commission member clarifies.

Author: Vladyslav Krasinsky; INSIDER