Analysis of the Law “On Intelligence of Ukraine”

On September 17, Parliament approved the Law “On Intelligence of Ukraine”, which is considered one of the important elements on the way to Ukraine’s Euro-Atlantic integration.

The respective decision gathered 258 votes.

According to its provisions, there are the following intelligence agencies in Ukraine:

  1. Intelligence body of the Ministry of Defence of Ukraine (Main Intelligence Directorate, hereinafter – “GUR”).

The law stipulates that the GUR of the Ministry of Defence is the main body that carries out military intelligence; collects information in the area of Joint Forces Operation in Donbas. The intelligence body of the Ministry of Defence of Ukraine carries out intelligence activities in the military sphere, defence, military construction, military-technical cooperation and cybersecurity, has the right to autonomous wiretapping.  

  1. Foreign Intelligence Service of Ukraine (subordinates to the President of Ukraine).

The Foreign Intelligence Service of Ukraine carries out intelligence activities in the foreign policy, economic, military-technical, scientific-technical, informational, ecological spheres, and the sphere of cybersecurity abroad. The Foreign Intelligence Service also maintains the protection of state secrets abroad, including among Ukrainian diplomats and officials who have access to state secrets and work in foreign Ukrainian embassies.

  1. Intelligence body of the State Border Guard Service (in the structure of the Ministry of Internal Affairs of Arsen Avakov).

The intelligence body of the central executive body, which implements the state policy in the field of state border protection, carries out intelligence activities in the field of security of the state border of Ukraine and protection of the sovereign rights of Ukraine in its exclusive (maritime) economic zone.

The new law formally excludes the competence of the Security Service of Ukraine as the body engaged in intelligence activities. However, in accordance with this Law, the operational units of the Main Directorate of the Security Service of Ukraine carrying out counterintelligence activities – may conduct intelligence activities to obtain information in the interests of counterintelligence. In fact, this norm leaves the SSU the right to conduct intelligence, gather information, wiretap, etc. We may already predict that the conflicts between the intelligence agencies will continue, as the SSU has always wanted to be ahead and control as many processes in the field of intelligence and counterintelligence as possible.

The new law also provides for the establishment of the Intelligence Coordinating Body, which shall be formed and approved by the President of Ukraine with the help of the National Security and Defence Council. The functions and tasks of the Intelligence Coordinating Body shall be defined and approved in the form of regulation signed by the President. In fact, the Intelligence Coordinating Body is quite reminiscent of the idea of the Joint Intelligence Committee, which functioned under Kuchma and Poroshenko.

The general management of the intelligence agencies and the intelligence community is exercised by the President of Ukraine; the direct management of intelligence agencies is carried out by their heads being appointed and dismissed by the President of Ukraine.

Compared to the old law, the new law on Intelligence has several interesting novelties.

First, according to the court decision, the intelligence authorities are given the right to inspect publicly inaccessible places, dwellings or other property of a person, which provides for the secret intrusion into such places, dwellings or property of a person and, if necessary, recording information and data on these objects. This means that the intelligence agencies (having court decision) now can secretly enter home or other private property of a citizen or legal entity, and most interestingly – carry out confidential collection of information.

Second, according to the court decision, the intelligence agencies are given the right to collect information from transport, engineering, electronic, telecommunications, radio and electronic sources (previously, such activities were assigned to the Security Service of Ukraine exclusively).

The Law on Intelligence provides very extensive measures to work of intelligence agencies under cover. In particular, intelligence agencies may use fictitious car numbers, documents and certificates, work as undercover agents in the media, NGOs, government agencies and other business structures.

Undercover agents may also be members of terrorist or criminal organizations for the duration of special missions, if such organizations pose a threat to the country.

The law separately prescribes the involvement of individuals and agents for confidential cooperation with intelligence agencies. The new law stipulates that such agents and individuals shall receive financial rewards, other incentives and protection from the state; the parameters for financing of such activities shall be determined by the Cabinet of Ministers.

Foreigners working for Ukrainian intelligence agencies may obtain Ukrainian citizenship. Individuals and agents, as well as intelligence employees arrested or serving sentences abroad, are under special state protection; the state should make efforts to exchange or release such personnel being in detention or serving sentences abroad.

Intelligence employees are entitled to use physical force, acquire, store, carry and use special means, as well as firearms. The Law on Intelligence describes in detail the social guarantees of intelligence officers, their competencies, the necessary state of health and other state protection.

Compared to the old law, the new law left the procedure for hiring and dismissing intelligence employees almost unchanged. The new law contains an amendment stating that intelligence officers must undergo regular special inspections for ties with the aggressor state (Russia).

If an intelligence employee dies while performing a task or receives a disability, the victim’s family shall receive a one-time monetary assistance in the amount of 750 times the subsistence level set for January 1 of the current budget year. If an intelligence employee receives a group I disability while performing a combat mission or service, he/she receives a one-time cash benefit in the amount of 400 times the subsistence level. Group II disability – 330 times the subsistence level; group III disability – 250 times the subsistence level. The same compensation system is provided for agents, individuals and foreigners working for the intelligence agencies of Ukraine.

Separately, the law prescribes that intelligence employees have the right to receive housing, or to state compensation for rent; intelligence agencies shall also provide their employees with departmental housing. The social program is very widely prescribed for the families of intelligence officers, it covers rehabilitation and rest in departmental camps, sanatoriums, and so on.

The law describes the state secret.

In particular, information on intelligence activities, intelligence methods, forces and means of intelligence involved in intelligence activities, intelligence information, information on providing consumers with intelligence information, on the interaction of intelligence agencies with other entities of the intelligence community, government agencies, local self-government bodies, enterprises, institutions, organizations, competent authorities of foreign states, international organizations – belongs to classified information and is an intelligence secret. Information related to intelligence secrets shall not be subject to disclosure and provision in response to inquiries in accordance with the Law of Ukraine “On Access to Public Information”, as well as to other appeals and inquiries, unless it is expressly provided by law.

A rather positive aspect of the new law is the clearly defined rules of civil and parliamentary control over intelligence agencies. In particular, civil control may be exercised by civic associations defined by the intelligence community, but access to state secrets shall not be provided within the civil control. In turn, the relevant parliamentary committee may also hear information on the activities of the intelligence community, and in some cases, MPs may have access to state secrets.