NSDC’s decision on business: Minister of Justice points out shortcomings
31 January 2024 10:38
Last week brought new decisions by the National Security and Defence Council aimed at economic security and stability during martial law. However, the Minister of Justice of Ukraine Denys Malyuska expressed doubts about the effectiveness of legislative measures to combat abuses, sharing this on social media, according to 
Denis Malyuska announced that the Cabinet of Ministers has registered two draft laws aimed at reforming the Bureau of Economic Security of Ukraine.
The first draft law is aimed at improving the process of selecting the head of the BES and his deputies, proposing a procedure similar to that of the NABU director.
“This is a unique case when the government itself initiated the use of an international voice without external pressure. This is different from the approaches of NABU, SAPO, HCJ, CCU, HQCJ, where we did not commit to such a system,”
– the Minister comments.
The draft law also includes re-certification of all BES employees after martial law. In addition, a draft law was registered that amends the CPC to improve the BES’s interaction with the business community.
Malyuska also noted that the Ministry of Justice plans to develop a number of initiatives that address a wider range of criminal procedure issues. He believes that the current process has an imbalance:
- at the pre-trial investigation stage, investigators have an advantage: unjustified searches, arrests, seizures, suspicions, and reputational damage through the media require additional protective measures
- at the stage of court proceedings, the defence may unreasonably delay the process, overloading the judicial system.
“This leads to a loss of interest in court decisions. The public expects quick punishment, law enforcement focuses on instant results, and the public reacts with applause or condemnation, depending on their position,”
– malyuska reflects.
However, he is sceptical about the possibility of legislative restrictions on abuse of power, so he suggested a combination of legislative changes with personnel decisions and analytics.
What the Minister of Justice suggests
The press service of the Ministry of Justice explained that draft law No. 10439 is aimed at optimising the selection of BES management and their re-certification.
The document defines new requirements for the members of the competition commission for the selection of the Bureau’s director, establishing their rights and obligations, as well as the decision-making procedure. In particular, it amends the grounds for dismissal of the BES director and introduces the obligation for candidates to undergo psychophysiological testing using a polygraph before being appointed to the position.
The draft law also provides for changes in the structure and procedure of the Commission for External Independent Audit of the BES’s performance. It is important to define the rights and obligations of the members of this Commission, as well as the possibility of financing its activities through international technical assistance.
It is proposed to re-certify all BES staff after the end of martial law. The deputy directors of the BES will be certified in accordance with the procedure established by the Cabinet of Ministers, and a year after the end of martial law, the employees appointed before the entry into force of this law will be certified.
Additionally, the government has registered draft law No. 10440, which provides for amendments to the Criminal Procedure Code of Ukraine and other laws to improve the work of the BES. Maliuska noted that these changes are aimed at providing a more business-friendly environment.
In particular:
- article 41 is proposed to be supplemented with a fourth part, the provisions of which will provide for the provision of written orders in criminal proceedings to detective units or operational and technical units to conduct investigative (search) actions, except for covert investigative (search) actions, by a detective of the Bureau of Economic Security of Ukraine or a prosecutor who provides procedural guidance in the relevant criminal proceedings;
- article 165 is supplemented with provisions that improve the procedure for the execution of an investigating judge’s or court’s ruling on temporary access to the belongings and documents of a business entity, providing that the execution of the said ruling is carried out in the presence of a representative of the Business Ombudsman Council;
- similar amendments are proposed to be made to part one of Article 236 of the CPC, the provisions of which relate to the execution of an investigating judge’s or court’s ruling on permission to search other property of a business entity, which is carried out in the presence of a representative of the Business Ombudsman Council;
- amendments to Article 216 of the CPC, which would bring pre-trial investigation of criminal offences under Articles 201 and 305 of the Criminal Code, which are under the jurisdiction of security investigative bodies, under the jurisdiction of the BES;
- it is necessary to amend Article 214 of the CPC to clarify certain powers of officials authorised to accept and register applications and reports of criminal offences with pre-trial investigation bodies.
Malyuska stressed that the Ministry plans to develop and register additional initiatives that address a wider range of criminal procedure issues .
“We have carefully studied the proposals from business associations, we do not agree with everything, but we will be in dialogue and hold the necessary discussions and debates,”
– malyuska summed up.
It should be noted that President Volodymyr Zelenskyy has stepped up measures taken by the National Security and Defence Council (NSDC) to ensure economic stability during martial law. These initiatives are aimed at supporting both national entrepreneurs and government agencies in addressing complex economic challenges.
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