"On Counterintelligence Activity"
[published in Holos Ukrayiny (Kiev, Ukraine) January 28, 2003] [FBIS Translated Text] This Law defines the concept and the legal principles governing the organization and conduct of counterintelligence activity. Article 1. The Concept of Counterintelligence Activity Counterintelligence is a special form of activity in the sphere of protecting the security of the state, which is conducted with the help of a system of intelligence, counterintelligence, search, operational [rezhymni], and administrative measures taken to forestall, uncover in good time, and prevent external and internal threats to the security of Ukraine, and intelligence, terrorist, and other illegal encroachments upon the interests of Ukraine by special services of foreign states, as well as by organizations, individual groups, or persons. Article 2. The Purpose and Tasks of Counterintelligence Activity The purpose of counterintelligence activity is to forestall, uncover in good time, and prevent external and internal threats to the security of Ukraine, to stop intelligence, terrorist, and other illegal encroachments upon the state security of Ukraine by special services of foreign states, as well as by organizations, individual groups, or persons, and remove the conditions that make possible such activities and eliminate their causes. The tasks of counterintelligence activity are: gathering, evaluating, and utilizing information that contains indications or proof of intelligence, terrorist, or other illegal activities by special services of foreign states, as well as by organizations, individual groups, or persons, intended to harm the state security of Ukraine; counteracting intelligence, terrorist, or other activities by special services of foreign states, as well as by organizations, individual groups, or persons, intended to harm the state security of Ukraine; developing and implementing measures to prevent, remove, and neutralize threats to the interests of the state, society, and the rights of citizens; Article 3. The Legal Foundation of Counterintelligence Activity The legal foundation of counterintelligence activity is the Constitution of Ukraine, international treaties entered into by Ukraine and ratified as binding by the Supreme Council of Ukraine, this and other laws of Ukraine, as well as other normative legislative acts approved pursuant to the aforesaid documents. Article 4. The Principles of Counterintelligence Activity The fundamental principles governing counterintelligence activity are: legality; respect for and observance of the rights and freedoms of individuals and citizens; nonaffiliation with any political party; continuity; secrecy, the combination of open and covert forms and methods of activity; comprehensive utilization of legal preventive and organizational measures; commensurateness of measures to protect state security with real and potential threats; cooperation with bodies of the state government of Ukraine, local self-government bodies, associations of citizens, juridical and natural persons; subordination and accountability to relevant state bodies within the limits provided for by law. Article 5. The Right To Conduct Counterintelligence Activity The body of state government specially authorized to conduct counterintelligence activity is the Security Service of Ukraine. Certain counterintelligence operations conducted exclusively in the interests of protecting the state border of Ukraine or of officials who are afforded state protection, as well as operations to protect their own forces and resources, information systems, and operational records, may be conducted by intelligence agencies of Ukraine and the Administration for the State Protection of Ukraine, which have been granted the power to conduct operational and investigative or intelligence activity under the Law of Ukraine On Operational and Investigative Activity and the Law of Ukraine On the Intelligence Services of Ukraine. Law enforcement and other agencies of state government, local self-government bodies, enterprises, institutions, and organizations of Ukraine, irrespective of form of ownership, shall assist, within the limits stipulated by the laws of Ukraine and other normative legislative acts, the agencies and subdivisions of the Security Service of Ukraine in conducting counterintelligence activity to safeguard state security. Entities other than those specified by this Law are prohibited from conducting counterintelligence operations. Article 6. Grounds for Conducting Counterintelligence Activity The grounds for conducting counterintelligence activity are: 1) the existence of sufficient information that needs to be investigated with the help of special forms, methods, and means concerning: intelligence operations against Ukraine conducted by special services of foreign states, as well as by organizations, individual groups, or persons; encroachments upon the national sovereignty, constitutional order, and territorial integrity of Ukraine; terrorist attempts or terrorist activity, crimes against the peace and security of humanity and international law and order; 2) the execution of tasks defined by law with regard to: safeguarding through counterintelligence [national] economic, informational, and scientific-technical resources, the military-industrial and transportation complexes, the national communications system, the Armed Forces of Ukraine and other military formations created in accordance with the laws of Ukraine, military-technical cooperation, compliance with international nonproliferation regimes, as well as the security of foreign diplomatic missions of Ukraine and the citizens of Ukraine abroad; protecting through counterintelligence state government bodies, law enforcement and intelligence agencies, and safeguarding state secrets; protecting the embassies and representations of foreign states in Ukraine and their personnel from terrorist attempts; conducting background investigations of persons undergoing the formal procedure of obtaining clearance for access to state secrets, to work with nuclear materials or at nuclear installations, or who have been engaged to cooperate on a confidential basis; safeguarding its own security, including the security of personnel of agencies and subdivisions engaged in counterintelligence activity, the members of their families, and persons who help and assist in conducting counterintelligence activity; providing information and analysis to state government bodies (concerning threats to the national security of Ukraine); 3) the need to detect with the use of technical means and to stop the operation of radioelectronic and other devices that pose a threat to the state security of Ukraine or serve as a means for the outflow of classified information, as well as radio signals by radioelectronic devices used for illegal purposes. The grounds for the conduct of counterintelligence operations by the intelligence agencies of Ukraine and the Administration for the State Protection of Ukraine are the execution of the tasks specified by law with regard to the protection (defense) of the state border of Ukraine, officials afforded state protection, as well as protecting the security of their own forces and resources, information systems, and operational records. Information about the grounds specified in this article may be contained in statements and reports from citizens, persons engaged to cooperate on a confidential basis, officials, public organizations, the mass media; in materials from investigatory bodies, pretrial investigations, and trials; in inquiries, reports, and materials of the special services or law enforcement agencies of foreign states, international institutions, and organizations; in materials of law enforcement agencies and other state government bodies of Ukraine about threats to the state security of Ukraine, in materials of the Security Service of Ukraine about the organization, execution, forms and methods of terrorist, intelligence, and other activities intended to harm the state security of Ukraine; in inquiries from state bodies, institutions, and organizations authorized by the Cabinet of Ministers of Ukraine to grant access to persons to state secrets or to work with nuclear materials and at nuclear installations. Article 7. The Functions and Powers of the Agencies, Subdivisions, and Employees of the Security Service of Ukraine Who Conduct Counterintelligence Activity The functions of agencies, subdivisions, and employees of the Security Service of Ukraine who conduct counterintelligence activities are defined by the Law of Ukraine On the Security Service of Ukraine. To carry out the tasks specified by law and if the grounds set forth in Article 6 of this Law exist, in the course of their counterintelligence activity, the agencies, subdivisions, and employees of the Security Service of Ukraine have the right: 1) to conduct counterintelligence search operations, intelligence and operational-investigative operations, using operational and operational-technical forces and means; to question persons with their consent and utilize their voluntary assistance; 2) to uncover, record, and document openly and secretly intelligence, terrorist, and other encroachments upon the state security of Ukraine; to maintain an operational record of the aforesaid; to conduct visual surveillance in public places with the help of photo, film, and video equipment, optical and radio devices, and other technical means; 3) to conduct counterintelligence operations and use any necessary operational and operational-technical measures to forestall, uncover in good time, and put a stop to subversive intelligence, terrorist, or other illegal activity intended to harm the state security of Ukraine; 4) to employ publicly known and covert staff and nonstaff personnel; to create enterprises, institutions, and organizations for clandestine purposes; to utilize documents that conceal the identity or departmental affiliation of agents, premises, or means of transportation of the agencies and subdivisions that conduct counterintelligence activity; 5) to demand and obtain, gather and study, if the grounds specified by law exist, documents and information describing the activity of enterprises, institutions, and organizations, as well as the way of life of certain persons, the sources and amounts of their incomes for the purpose of preventing and stopping intelligence, terrorist, and other illegal encroachments upon the state security of Ukraine; 6) exclusively for the purpose of forestalling, uncovering in good time, and stopping intelligence, terrorist, and other encroachments upon the state security of Ukraine, to obtain intelligence information for counterintelligence purposes in pursuing the relevant counterintelligence case by conducting operations defined in section 2 of Article 8 of the Law of Ukraine On Operational and Investigative Activity - only based on a court decision, without informing the third party, and in instances set forth in section 3 of Article 8 of the aforesaid law - in accordance with the procedure agreed upon with the Prosecutor General of Ukraine and the Chairman of the Supreme Council of Ukraine; 7) to arrest and detain in facilities especially designated for this purpose: persons suspected of planning or conducting subversive intelligence or terrorist activity and committing other crimes, the authority to investigate which has been vested in the agencies of the Security Service of Ukraine - for periods of time and in accordance with the procedure specified by the laws of Ukraine; persons who have infiltrated facilities and sites protected by the agencies and subdivisions of the Security Service of Ukraine - for a period of up to three hours, and in the event of an urgent need to prevent a crime or to put a stop to it and for the purpose of identifying the person - for up to 72 hours with mandatory notification of a court within 24 hours of the arrest for review by the latter of the justification of this preventive measure. To perform a personal search of the aforesaid persons and a search of the personal belongings in their possession at the time of arrest and of their means of transportation, and to confiscate documents and items that could serve as material evidence or pose a threat to the life and health of people; 8) exclusively for the purpose of putting a stop to intelligence, terrorist, or other illegal encroachments upon the state security of Ukraine, as well as when pursuing persons suspected of engaging in such activity, to enter unimpeded at any time and to remain on the territory or premises of state government bodies and their structural subdivisions, local self-government bodies, enterprises, institutions, and organizations, irrespective of their form of ownership, and at protected military facilities - in accordance with established procedure; 9) to enter and remain in accordance with the procedure approved by heads of the state border protection agencies of the Border Troops of Ukraine for the purpose of conducting counterintelligence operations inside the zone along the border, the monitored border region, and at crossing points on the state border and in the territorial waters of Ukraine; 10) in an emergency, when conducting counterintelligence operations, to use without hindrance communication means belonging to enterprises, institutions, and organizations, and also means of communication belonging to private citizens, but with their consent and with the subsequent compensation of costs upon request; 11) in the interests of protecting state security and carrying out the tasks of counterintelligence activity, to coordinate and perform scientific and scientific-technical studies; to create in accordance with the procedure specified by the laws of Ukraine appropriate scientific institutions and interdepartmental coordinating and advisory bodies; 12) to keep, carry, employ, and use weapons and special means; to use physical force in accordance with the laws of Ukraine and other legislative acts of Ukraine; to carry weapons and other special means on all forms of transport; 13) to exercise the powers defined by the laws of Ukraine On the Security Service of Ukraine, On State Secrets, and other laws of Ukraine; The powers granted to the employees of the agencies and subdivisions that conduct counterintelligence activity may not be used for illegal purposes. In the event of a failure to abide by these requirements, they shall be held liable in accordance with the requirements established by law. Article 8. Fundamental Principles of the Organization of Counterintelligence Activity The organization and coordination of counterintelligence activity shall be the responsibility of the Central Administration of the Security Service of Ukraine. The procedure for organizing and conducting counterintelligence activity shall be defined by the laws of Ukraine and the normative-legal acts of the Security Service of Ukraine approved in accordance with the aforesaid laws, and in instances provided for by law, by interdepartmental normative-legal acts. Counterintelligence activity shall be conducted openly and in secret. Open counterintelligence operations envisage the utilization of open (official) forms and methods of activity in the sphere of protecting state security. Covert counterintelligence operations shall be conducted with the participation of persons who work on a confidential basis with the counterintelligence agencies and subdivisions, as well as with the use of operational, operational-technical, and special forces and means. The procedure for using covert methods and means in conducting counterintelligence operations shall be defined on the basis of this Law by normative-legal acts of the Security Service of Ukraine. For the purpose of organizing and conducting counterintelligence activity, systematizing and documenting the results obtained, for purposes of analysis and operational and legal evaluation, and for purposes of approving appropriate administrative decisions, the agencies and subdivisions of the Security Service of Ukraine that conduct counterintelligence activity shall maintain counterintelligence case files. A counterintelligence case file shall be opened if there exist grounds as defined by this Law for conducting counterintelligence activity. The decision to open a case file shall be subject to approval by the heads of the relevant subdivisions of the Central Administration of the Security Service of Ukraine that conduct counterintelligence activity, heads of regional bodies, and of military counterintelligence bodies of the Security Service of Ukraine or their deputies. Exclusively for the purpose of conducting counterintelligence operations, systematizing and documenting the results obtained within the limits of the powers and tasks defined by law pertaining to the protection (defense) of the state border of Ukraine, counterintelligence case files may be maintained with the approval of the Security Service of Ukraine and in cooperation with it by border intelligence units with the permission of the head of the intelligence agency of the State Committee for the Protection of the State Border of Ukraine or his deputy. Counterintelligence cases shall be closed in the event that: 1) the counterintelligence measures have been completed or the possibilities for conducting them have been exhausted; 2) the materials that served as grounds for conducting counterintelligence measures have been refuted; 3) the intelligence, terrorist, or other illegal activity intended to harm the state security of Ukraine has ceased; 4) the subject has departed the country to take up permanent residence outside Ukraine and the possibility of implementing counterintelligence measures against him no longer exists; 5) an operational and investigative case has been opened on the basis of the materials of the counterintelligence operation; 6) criminal charges have been brought against the subject, including abroad, for actions that served as grounds for opening a counterintelligence case; 7) the death of the person against whom a counterintelligence case had been opened. In order to forestall, uncover in good time, and prevent intelligence, terrorist, and other illegal encroachments upon the state security of Ukraine, the agencies and subdivisions of the Security Service of Ukraine that conduct counterintelligence activity shall, if necessary based on the results of this activity, take preventive measures against crimes in the sphere of state security. If in the course of their counterintelligence activity, the aforesaid agencies and subdivisions find persons who require the implementation of precautionary measures, they shall issue them an official warning that their illegal conduct is inadmissible. The Security Service of Ukraine shall report the results of its counterintelligence activity to the President of Ukraine and inform the Supreme Council of Ukraine of them. The disclosure of the results of counterintelligence activity shall be carried out in accordance with the requirements of the laws of Ukraine. Article 9. Protection of Information about Counterintelligence Activity Information about the organization, plans, substance, forms, methods, means, financing, and material and technical supply, about the results of counterintelligence activity and of scientific and scientific-technical studies pertaining to the protection of state security, as well as information about persons who are currently cooperating or have cooperated in the past on a confidential basis with the agencies and subdivisions of the Security Service of Ukraine that conduct counterintelligence operations and general information about the personnel of these agencies and subdivisions constitute a state secret and are subject to protection in accordance with the procedure prescribed by the Law of Ukraine On State Secrets. Access to the aforesaid information may be granted in instances and in accordance with the procedure determined by the Security Service of Ukraine in conformity with the law. Article 10. Social and Legal Guarantees Provided to Employees of the Agencies and Subdivisions of the Security Service of Ukraine That Conduct Counterintelligence Activity The social and legal guarantees established by the laws of Ukraine On the Security Service of Ukraine, On the Social and Legal Status of Military Servicemen and Members of Their Families, and other laws of Ukraine shall extend to the employees of the agencies and subdivisions of the Security Service of Ukraine that conduct counterintelligence activity. In the course of performing their official duties, employees of the counterintelligence agencies and subdivisions of the Security Service of Ukraine may, if necessary, be detained and be subjected to a personal search, a search of the belongings in their possession, and of their means of transportation only in the presence of an authorized representative of the relevant agency or subdivision of the Security Service of Ukraine. This provision does not apply if a counterintelligence officer has committed a crime. No one, except their immediate superiors, may interfere with the official duties of employees of the agencies or subdivisions of the Security Service of Ukraine that conduct counterintelligence activity. Interference or obstruction in the performance of their official duties, resistance, insults to their honor or dignity, threats, or violence shall be punishable under the law. Article 11. Guarantees of Compliance With the Law in the Course of Conducting Counterintelligence Activity The state guarantees observance of the constitutional rights and freedoms of individuals and citizens when counterintelligence operations are conducted. Restrictions on the rights and freedoms of individuals and citizens are prohibited, except in instances provided for by law. The activity of the agencies and subdivisions of the Security Service of Ukraine that conduct counterintelligence operations may not be used to perform tasks that are not provided for by this Law. Officials and employees of the agencies and subdivisions of the Security Service of Ukraine that conduct counterintelligence activity are liable to disciplinary, administrative, material, or criminal penalties as provided for by law. Information pertaining to the personal life and honor and dignity of a person gathered in the course of counterintelligence operations may not be disclosed. Citizens have the right, in accordance with the procedure prescribed by law, to receive a written explanation of the restriction of their rights and freedoms in the course of counterintelligence operations and to appeal such actions. Article 12. Oversight of Counterintelligence Activity of the Agencies and Subdivisions of the Security Service of Ukraine and Monitoring of Compliance With the Law by the Agencies and Subdivisions That Conduct Such Activity Oversight of counterintelligence activity conducted by the agencies and subdivisions of the Security Service of Ukraine and monitoring of their compliance with the laws of Ukraine shall be effected in accordance with the Constitution of Ukraine and the laws of Ukraine. Article 13. Closing Provisions 1. This Law shall enter into force on the date of its publication. 2. Until the laws of Ukraine and other normative-legal acts are brought into conformity with this Law, the aforesaid laws and acts shall apply in the parts that do not contravene this Law. 3. Within six months of the date on which this law enters into force, the Cabinet of Ministers of Ukraine shall: bring its normative-legal acts into conformity with this Law; ensure that ministries and other central bodies of executive power of Ukraine bring their normative-legal acts into conformity with this Law. 4. The Security Service of Ukraine shall prepare drafts of laws on amending laws of Ukraine that proceed from this Law to be submitted for consideration by the Supreme Council of Ukraine in accordance with established procedure. President of Ukraine L. KUCHMA Kiev 26 December 2002 No. 374-IV