BES reboot: Joint letter of Ukrainian business

The business associations have analyzed the updated Government draft law on rebooting the Bureau of Economic Security (registration number 10439) and note the following.

We welcome that the updated Government Draft Law No. 10439 has taken into account a number of proposals from the business community, in particular

• the selection of candidates for the position of the head of the Bureau of Economic Security by a commission with a majority vote of international experts;
• immediate re-certification of all employees of the Bureau of Economic Security;
• audit (independent assessment) one year after the adoption of the law.

However, important proposals that jeopardize the reboot of this important body remained unaccounted for, in particular

• detailed procedures for re-certification of all personnel that would contain key safeguards;
• inclusion of representatives of international organizations in the personnel and attestation commissions;
• strengthening the analytical function of the Bureau by providing free access to existing state information systems;
• establishing performance criteria for the updated Bureau of Economic Security.

According to business associations, failure to take into account the above proposals regarding the mechanism of re-certification of existing employees, strengthening the analytical function of the law enforcement agency, carries a significant risk of retaining corrupt personnel and repeated failure of the Bureau of Economic Security.

The most critical of the unaccounted-for proposals is the composition of competition commissions for re-certification of personnel and the mechanism for conducting re-certification. According to the business, a detailed mechanism for re-certification should be set out in the draft law, and these commissions should have a predominant voice of international experts.

These important procedures and composition cannot be formed solely by the decision of the new director; safeguards are needed to prevent possible wrong decisions.

Given the above, and given that business is interested in a speedy reform of the BES as a single economic law enforcement agency, business associations urge MPs to support draft law No. 10439 and take into account business proposals when finalizing the draft law on reloading the Bureau of Economic Security between the first and second readings.

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

• introduction of standards of prosecutorial activity;
• limiting the powers of the National Police and the BES in terms of giving instructions to operatives of the Security Service of Ukraine;
• 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;
• immediate return of seized property after a court decision;
• setting a reasonable level of bail and preventive measures;
• prohibition of seizure of material assets not specified in the investigating judge's ruling;
• assigning to investigating judges the obligation to verify that the pre-trial investigation body complies with the requirements of jurisdiction;
• return of pre-trial investigation terms and the procedure for their extension in factual criminal proceedings.

We emphasize that without further steps to amend the CPC to make the BES the sole law enforcement agency for the economy and other fundamental changes to the CPC that we have outlined, we cannot solve the problem of pressure on business.