EBA joins Joint Business Appeal to MPs on ESB reboot

The European Business Association has been consistently and persistently reiterating the need for a fair reboot of the Economic Security Bureau. Another reason for this is that last week the Verkhovna Rada supported the Government Draft Law No. 10439 despite the devastating criticism from business.

It should be noted that the updated Government Draft Law No. 10439 took into account a number of proposals from the business community, in particular regarding:

1. election of candidates for the position of the head of the Economic Security Bureau by a commission with a majority vote of international experts;

2. immediate re-certification of all employees of the Economic Security Bureau;

3. audit (independent assessment) one year and three years after the appointment of the new head.

However, important proposals that jeopardize the reboot of the ESB as an important body have not been taken into account, in particular, the Government’s draft law lacks:

1. a clear procedure for re-certification of all personnel, which would contain key safeguards, in particular, to prevent the courts from reinstating employees who have not passed such re-certification;

2. inclusion of international experts in the personnel commission for re-certification of all current employees of the ESB and the commission for selection of new employees of the ESB;

3. strengthening the analytical function of the Bureau by providing free access to existing state information systems for the ESB;

4. establishing performance criteria for the renewed Economic Security Bureau and their constant monitoring;

5. granting the personnel commission the right to be guided by reasonable doubt based on facts, documents, etc. when checking the integrity of a candidate during the re-certification of personnel.

According to the business, failure to take into account the above proposals on the mechanism of re-certification of current employees and strengthening the analytical function of the law enforcement agency carries a significant risk of retaining personnel who do not meet the principles of integrity and repeated failure to launch the work of the Economic Security Bureau.

The most critical of the unaccounted-for proposals is the composition of the competition commissions for re-certification of personnel and the mechanism for conducting re-certification. According to business representatives, a detailed mechanism for conducting reassessments should be set out in the draft law before the second reading, and the commissions themselves should be dominated by international experts with an impeccable reputation and a good understanding of the work of law enforcement agencies. In addition, it is important to restrict access to positions in the ESB to persons with dubious reputations based on the principle of reasonable doubt, given the small number of corruption cases that have resulted in guilty verdicts. These important procedures and composition cannot be created and formed solely by the decision of the new director; safeguards are needed against possible erroneous sole or biased decisions.

It is also extremely important to preserve in the final version of the draft law the right of the international experts to have a decisive vote when electing the ESB chairman.

In addition, in order to establish safeguards against unlawful pressure on business by law enforcement agencies, along with the reboot of the Economic Security Bureau, the business community demands amendments to the Criminal Procedure Code of Ukraine to:

1. introduction of standards of prosecutorial activity;

2. limiting the powers of the National Police and the ESB in terms of issuing instructions to operatives of the Security Service of Ukraine;

3. ensuring the possibility of appealing to the investigating judge against any actions or omissions, including decisions of the investigator, detective, prosecutor, taken in any procedural action;

4. prohibition of reopening proceedings on the same grounds after a positive decision for business as a result of appealing against previous actions of law enforcement agencies;

5. responsible storage and immediate return of seized property to the owners after a court decision;

6. setting a reasonable and proportionate level of bail and preventive measures;

7. prohibition of seizure of material assets that are not specified in the decision of the investigating judge;

8. allowing the seizure of “critical property” (means of labor that are part of economic activity) only on exceptional grounds;

9. imposing on investigating judges the obligation to verify that the pre-trial investigation body complies with the requirements of jurisdiction;

10. return of pre-trial investigation terms and the procedure for their extension in factual criminal proceedings, except for grave and especially grave crimes within the jurisdiction of the NACB.

In view of the above, the European Business Association calls on MPs to take into account the proposals of business and immediately finalize the draft law on the reboot of the Economic Security Bureau, as well as to adopt the necessary amendments to the Criminal Procedure Code of Ukraine.

The following associations are also signatories of the appeal to MPs:

UNGO “Taxpayers Association of Ukraine”

Union of Ukrainian Entrepreneurs – SUP

Board community

All-Ukrainian Professional Association of Entrepreneurs

Association of Private Employers

Ukrainian Security Industry Federation

Ukrainian Agri Council (UAC)

Kharkiv IT Cluster

U-Food Association

Ukrconsulting Association

Software Ukraine

All-Ukrainian Union of Passenger Carriers

National Organization of Retail Trade

Kreminna Business Association

Association Ukrkondprom

Association “Insurance Business”

Association of Ukrainian importers of fish and seafood