Monitoring of the reforms progress based on the analysis of the implementation
of the recommendations of sectoral analytical brief for URC 2021
Section 1. Monitoring of the implementation of recommendations on reform priorities for 2020–05.2021.
In general, the authorities have maintained a course of reforms to build effective and accountable institutions, develop Ukraine's defence and security capabilities based on NATO principles and standards, guarantee personal security and civil rights with the involvement of civil society and create an effective system of democratic civil public control.
1. Introduction of long-term planning focused on the development of defence and security capabilities.
In September 2020, the National Security Strategy of Ukraine was approved. In March 2021, the Military Security Strategy of Ukraine was approved. By May 2021, the Ministry of Defence will complete the development of the Strategic Defence Bulletin and the Defence Plan. In the future, the main attention should be focused on linking strategic planning documents with real programs of development of the Armed Forces of Ukraine, programs of rearmament and reorganization of their structure, the Annual National Program under the auspices of the NATO-Ukraine Commission.
2. Adoption of a new Law on Defence Procurement and the establishment of a government body in the defence industry.
In July 2020, the Law on Defence Procurement was adopted, which should create a new system of relations in the field of defence and military-technical cooperation.
In July 2020, the Ministry of Strategic Industries was established, which became the main government body in the defence industry.
The new Law on Defence Procurement has not been implemented on time. By-laws that are already developed by the Ministry of Defence and the Ministry of Strategic Industry are imperfect, while there is still no crucial electronic register. As a result, since the beginning of 2021, the Ministry of Defence has concluded only one contract for the execution of the State Defence Order, while Ukroboronprom has not concluded any.
3. Adopting the law on intelligence, further reformation of the intelligence agencies, in particular in order to ensure democratic civilian oversight
The law on intelligence was adopted in September 2020
4. Developing and adopting a new version of the Law on SSU in accordance with the provisions of the 2018 Law on National Security and the recommendations of our Western partners.
On January 28, the draft law №3196-d On Amendments to the Law of Ukraine "On the Security Service of Ukraine" to improve the organizational and legal framework of the Security Service of Ukraine was voted in the first reading. The law is being finalized in the committee, its adoption is generally scheduled for June 2021.
5. Creating an effective model of country defence based on a professional core, voluntary territorial defence.
On December 16, 2020, the draft Law on Territorial Defence of Ukraine (№4504) was registered in the Parliament. The topic continues to be discussed: a form of territorial defence that would suit all participants and meet the country's defence objectives has not yet been found. On May 25, 2021, the President of Ukraine submitted Bill №5557, which will regulate the development of territorial defence, the organization of the resistance movement and the appropriate preparation of the citizens of Ukraine for national resistance. The profile committee recommended the presidential bill to be adopted as a basis, but it needs significant revision.
6. Changing the system of general conscription while introducing the enrolment forms that might entice the Ukrainian citizens into military service.
The modernization of the system of conscription and staffing of the Armed Forces of Ukraine and other law enforcement agencies was not actually carried out.
7. Corporatization of the State Ukroboronprom Concern in accordance with the OECD Guidelines on Corporate Governance at State-Owned Enterprises with the adoption of necessary legislative changes.
The relevant Draft Law №3822 “On Peculiarities of Reforming State-Owned Defence-Industrial Complex Enterprises” as of June 2021 has passed the first reading and is being prepared for the second reading.
8. Adoption of a new law on the protection of classified information that complies with Euro-Atlantic principles of transparency and openness of public information.
Although no new legislation has been developed and adopted, in December 2020 the Security Service of Ukraine approved a new "Code of Information Constituting a State Secret". It is the Code that details and classifies information that is constitutes a state secret. In particular, the Code stipulates that information relating to contracts for the supply (repair) of armaments and military equipment (respectively, the State Defence Order) may be classified only under martial law or during a special period.
Work is underway on a new bill "On the security of classified information" (the bill was to be submitted by the end of the second quarter of 2021) to replace the law of Ukraine "On State Secrets". The proposed version of the bill does not address the complex task of unifying the classifying process and ensuring a balance between transparency and classification of information. There are comments on the guarantees of accountability, openness and prevention of corruption in the field of classifying public information as restricted information.
9. Conducting the audit and proper registration of land and property of the Ministry of Defence of Ukraine, systematizing the electronic register and making necessary changes to the relevant regulations.
The issue of audit of defence lands was included in the draft Law "On Anti-Corruption Strategy for 2020-2024" (adopted as a basis). A Memorandum of Cooperation between the Ministry of Defence and the State Land Registry was signed, the purpose of which is to unite efforts to include information on defence lands in the registry. Subsequently, information was entered into the State Land Registry and cadastral numbers were assigned to 1764 land plots with a total area of 255,86 thousand hectares, which is approximately 50% of the registered lands of the Ministry of Defence.
10. Conducting an audit of the existing housing queue, introducing an electronic queue, developing an alternative model of social security for service persons and their families and making the necessary changes to the relevant legal acts.
Since 2020, a working group at the Parliamentary Committee on National Security, Defence and Intelligence has been working on a bill "On providing housing for servicemen and members of their families with non-state funds, land lease and alienation of property." The presentation of the bill took place in the committee on June 2, 2021.
The draft law in its proposed form contains significant corruption risks, namely the relevant Committee of the Parliament proposes to give itself the right to approve the list of land plots for construction projects and to approve the results of the inspection of existing investment agreements. The bill does not regulate the issue of providing housing for servicemen and members of their families, but rather concerns the procedure for organizing auctions, allocating land plots, alienating real estate, transferring defence lands for rent, etc.
11. Improving the system of civilian control in accordance with NATO principles according to the following options: 1) creation of an independent (from the ombudsman of general jurisdiction) state institution of the military ombudsman of the Parliament; 2) expansion of the powers of the sectoral committees of the Parliament.
Work in this direction was not carried out in the reporting period.
12. In the field of social security, the adoption of the Law "On the status of veterans and family members of deceased veterans" remains a priority in order to modernize the system of state support for veterans and their families.
Despite the decision of Parliamentary Committee on Social Policy and Protection of Veterans' Rights, which recommended adopting draft laws №3407 On the status of veterans and family members of deceased Defenders of Ukraine and veterans and №3408 On the status of persons who contributed to the protection of the Motherland and persons, which were the victims of armed conflicts, these projects were not considered at the plenary sessions of the Parliament.
No other comprehensive bills related to the reform of the state support system taking into account the needs and proposals of the veterans in 2021 were registered.
Bills relating to certain benefits and guarantees often do not contain a proper financial and economic justification, which complicates their practical application.
13. The problem of the legal status and social guarantees of persons illegally deprived of their liberty as a result of the armed aggression of the Russian Federation needs to be addressed.
There is currently no comprehensive system of social protection for such persons at the legislative level. The procedure for social and legal protection of persons deprived of liberty as a result of armed aggression against Ukraine, after their release is regulated by the decree of the Cabinet of Ministers №1122 of December 11, 2019 and provides fragmentary state guarantees instead of a comprehensive system of state support. The one-time financial assistance provided by the CMU decree №328 of April 18 2018 actually depends on the decision of the Interdepartmental Commission and the financial capacity of the state. Thereby, on June 4, according to the Ministry of Transport and Communications, payments were made to only 65 citizens who were dismissed.
Draft law "On social and legal protection of persons deprived of liberty as a result of armed aggression against Ukraine" developed jointly by the Ministry of Veterans Affairs of Ukraine, the Office of the President and the Commissioner for Human Rights with the participation of NGOs was not registered in the Parliament.
Section 2. The current major challenges in implementing the reform.
The analysis of the existing plans of reorganization and rearmament of the armed forces and other military formations, in particular, testifies to their inconsistency with the available budgetary resources. Therefore, they must be realistic, clearly based on a set of documents of defence and budget planning, the capabilities of the domestic defence industry and available financial resources.
The implementation of the law on defence procurement is delayed, which in particular has a negative impact on the approval and implementation state defence procurement process. Some of the documents were adopted only in the spring of 2021, i.e. more than three months late, and some have not been developed yet. For example, the starting point for launching procurement - the list of public customers - was determined only on April 21, 2021. As of today, the profile committee of the Parliament has considered and partially approved the annual procurement plan for 2021 to only one state customer - the Ministry of Defence. There is still no state quality assurance system.
The planned measures to reform the SBU require additional assessment in terms of the effectiveness of the service in the face of military aggression by the Russian Federation. The proposed European practices are applied in Western countries, which have a radically different level and nature of threats to national security. The issue of bringing the SBU Military Counterintelligence into an independent structure is urgent and special department No.3 of the SBU National Academy (Department of Military counterintelligence), which was liquidated in 2009, needs to be re-established.
Bill №5557, on should serve as the basis for creation of a system of national resistance and, in particular, territorial defence, is quite “raw” and contains many inaccuracies and contradictions, in particular with the existing legislation. Therefore, there is an urgent need for a detailed analysis and alignment with existing laws and strategic documents in the field of defence and security at the level of the relevant parliamentary committee with the involvement of an expert community.
The existing staffing system is inefficient and does not meet the needs of the military organization of Ukraine to provide the necessary quota of trained and motivated personnel, especially given the long-term plans for its development within the concept of national resistance.
The draft Law No.3822 “On the peculiarities of reforming the enterprises of the defence-industrial complex of the state form of ownership” contains a number of corruption and administrative risks. At the same time, by the second reading most of these risks at the level of the profile committee have been eliminated - the Cabinet of Ministers has been appointed as the sole governing body to implement OECD recommendations, the exclusive powers of the supervisory board of the joint-stock company are fixed, the number of independent members will constitute from one third to half, etc.
The issue of audit of defence lands needs constant control by anti-corruption bodies. For example, today there are discrepancies between the accounting data of the Ministry of Defence and the State Land Registry of more than 175 thousand hectares, which means that there are corruption risks.
The reform of the social protection of servicemen is currently virtually suspended, in part due to the reduction of a significant number of experts from the Directorate of Defence Policy and the failure to address the issue of creating an electronic queue.
One of the main challenges for updating the system of state support for veterans is the lack of a Unified State Register of Veterans, i.e. there is currently no official up-to-date statistical information on the number of persons with veteran status and the benefits and guarantees they require. This is an obstacle to renewing state support, taking into account the necessary budget expenditures. It should be noted that the operation of the Unified State Register of Veterans in a test mode was scheduled for February 2021.
Section 3. Recommendations on reform priorities for 2021-2022
The Law of Ukraine "On National Security of Ukraine" remains the framework document for systemic reforms. The ultimate goal of the reforms should be to create an integrated national security and defence sector based on NATO standards, which will be subject to comprehensive democratic civilian oversight.
To adopt the bill №3196-d and implement the SBU reform. The main indicator of the success of the reform is the effectiveness of the service in combating hybrid aggression of the Russian Federation.
To focus efforts on the full implementation of the Law on Defence Procurement, which provides for the development and approval of a set of bylaws at various levels.
Given the level of existing threats from Russia, which does not plan to abandon aggressive plans against Ukraine, the experience of other countries (including Israel), and the urgent needs of national defence, it is necessary to increase funding for the national security and defence sector above 5% GDP (we propose to allocate 5% of GDP only to the Armed Forces).
On the basis of the bill №5557 and taking into account the best elements of the bill №4504, to create a legal basis for the deployment of an effective system of territorial defence considering for the geographical, territorial and socio-political features of Ukraine in the face of aggression by Russia. Bill №5557 requires the introduction of clearly defined functionalities for the Ministry of Internal Affairs, the Security Service of Ukraine, the National Police, the SBU Military Counterintelligence and their involvement in preparing the resistance movement and ensuring its internal security.
In the current environment, the principle of voluntariness should be the basis for the staffing of the armed forces and other security forces as the most effective in terms of quality. At the same time, the constitutional provision on the civil duty to protect the country must be preserved and reflected in legislation. Based on this, there should be a system of basic military training of the population, which would provide sufficient human resources to staff the professional component of the Armed Forces and other military formations, reserve forces and territorial defence. Forced conscription should be replaced by legal forms of refusal to serve (e.g. alternative service, financial benefits). At the same time, an effective mechanism should be created to increase the social status of personswho are serving in the military (for example, creating preferences and facilitating access to higher education, civil service, etc.).
To adopt the draft law No.3822 in compliance with the principles of transparency and accountability in the process of future transformation of the Ukroboronprom. In particular, we propose to involve representatives of the public and international partners of Ukraine in the nomination committee, which will select and appoint supervisory boards to corporatized joint stock companies. We also call the Ukroboropnrom to ensure maximum transparency and public access to the analysis of property expropriation processes after the expected adoption of Bill №3822. In the course of further corporatization of the Ukroboropnrom, the issue of avoiding loss of control (hidden privatization) over certain productions (technologies) requires additional control.
To complete the process of audit and proper registration of lands and property of the Ministry of Defence of Ukraine, taking into account all existing risks.
To complete the audit of the existing housing queue, substantially finalize and adopt the draft law "On providing housing for servicemen and members of their families with the involvement of private funds, transfer of land for rent and alienation of property." Further work on this bill requires control by civil society given the presence of corruption risks.
To improve the system of civilian control in accordance with NATO principles according to the following options: 1) creation of a state institute of military ombudsman of the Parliament independent of the ombudsman of general jurisdiction; 2) expansion of the powers of the profile committees of the Parliament on the establishment of temporary commissions of inquiry, control over the assignment of higher military ranks and appointments to military positions of the nomenclature of higher military ranks;
To update the system of state support for veterans at the legislative level on the principle of priority of public services over benefits.
To adopt the Law on State Support of Released Prisoners and Hostages in order to provide comprehensive state support to released persons (in medical, psychological, housing, educational and other spheres) and to prevent the provision of social guarantees for such persons depending on the financial or political capacity of the state.