Important Draft Laws. Issue 10: Dual Citizenship, Rebooting the ESB, and a New Mobilization Process

Important Draft Laws. Issue 10: Dual Citizenship, Rebooting the ESB, and a New Mobilization Process

Photo: pexels.com / Borys Zaitsev
13 February 2024
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A review of draft laws registered from January 22 to February 4, 2024.

During the past two weeks, 37 draft laws were registered in the Verkhovna Rada of Ukraine: one authored by the President of Ukraine regarding citizenship, eight by the government, and the remaining 28 by people’s deputies. 

In the past two weeks, there has been extensive discussion in the media about several new legislative drafts. These include the President’s draft law on the introduction of dual citizenship, a governmental draft law on changes to the procedure for electing the head and expanding the powers of the Economic Security Bureau (a condition of the IMF program), as well as a government bill on mobilization (adopted on February 7 in its first reading), which lowers the mobilization age from 27 to 25 years and introduces electronic accounts for those eligible for the draft.

Further, we’ll discuss these and other important legislative drafts.

Changes in the process of gaining and losing citizenship in Ukraine

Presidential Bill No. 10425 on the acquisition/termination of citizenship introduces a new type of document – a declaration of recognition of oneself as a citizen of Ukraine

Foreigners seeking Ukrainian citizenship must renounce their foreign citizenship and provide documentary evidence. The draft law proposes to abolish this requirement for citizens of 35 countries, including European states, the United States, Canada, Japan, and others (separate international treaties may expand this list), stateless persons, refugees (including those from Russia), and individuals who have served in Ukraine’s Armed Forces. They will not need to commit to renouncing the citizenship of another country but only to declare themselves as a citizen of Ukraine and express readiness to fulfill citizen obligations, including military service and tax payment. This draft law effectively allows for dual citizenship. The draft also stipulates that Ukrainian citizens retain citizenship if they voluntarily acquire citizenship in the 35 countries above. 

Dual citizenship is allowed in approximately 130 countries worldwide, including most developed countries such as the United States, Canada, the United Kingdom, and most European countries. Around 60 countries, including Ukraine, do not recognize dual citizenship. European countries that adhere to the principle of single citizenship include Norway, Slovakia, Austria, Estonia, the Netherlands, and others. Among others, dual citizenship is also not recognized by the UAE, China, Uzbekistan, Kazakhstan, Georgia, India, and Japan. Recognition of citizenship from another country varies in each country. For instance, Spanish citizens residing in Latin American countries who acquire citizenship in these countries do not lose Spanish citizenship, and Argentina recognizes the right of its citizens to hold Spanish and Italian citizenship simultaneously. 

Implementing dual citizenship in Ukraine raises many questions regarding its practical application, such as the rights to participate in elections, the obligation to pay taxes, serve in the Armed Forces, and so on, which should be addressed in the draft law.

“Rebooting” the Economic Security Bureau (ESB)

The draft law on reforming the Economic Security Bureau (ESB) is a structural benchmark of Ukraine’s current IMF program. We have committed to introducing competitive selection for the Bureau’s leadership and expanding its investigative powers.

The Cabinet of Ministers appoints the ESB director based on the recommendation of a selection committee. Draft Law No. 10439 changes the procedure for forming such a committee and the powers of its members. Specifically, the number of committee members is reduced from 9 to 6, and there is a change in the approach to forming the committee. The Cabinet of Ministers appoints all members: three are determined independently, and three are based on proposals from international organizations providing Ukraine with international technical assistance in combating corruption and reforming law enforcement agencies. For comparison, currently, the committee’s composition is as follows: three individuals from the National Security and Defense Council (NSDC), three individuals from the Cabinet of Ministers, and three individuals from the Verkhovna Rada, who are chosen by it from representatives of civil associations, professional unions, associations, non-governmental media, etc. 

According to the bill, the selection committee’s decision is considered adopted if at least four out of six members of the selection committee vote for it (currently, no less than 5 out of 9), including at least two members appointed by international organizations. This mechanism makes the influence of international experts on the competition results decisive and prevents government representatives from sabotaging decision-making.

The draft specifies the rights and duties of selection committee members, which are not present in the current law. They have the right to collect and analyze information about candidates, including restricted access information, and have temporary access (for the duration of the competition) to registers and databases owned by government agencies. 

The draft law adds to the grounds for dismissal of the ESB director (expiration of term, change of citizenship, transfer to a new position, etc.) a negative conclusion from the Commission for External Independent Evaluation (Audit) of the Effectiveness of the ESB Activities, which according to the bill will need to be established. This commission consists of three individuals designated by the Cabinet of Ministers based on proposals from international organizations that have provided Ukraine with international technical assistance in combating corruption over the past three years.

Another government draft law (No. 10440) proposes that Economic Security Bureau employees be authorized to enforce court decisions on temporary access to the property and documents of enterprises, as well as searches of enterprise premises, in the presence of a representative of the Business Ombudsman Council (the project defines the procedure for involving, rights, and obligations of this representative). However, if the ombudsman’s representative, notified before the search, fails to turn up, this does not prevent ESB employees from carrying out their work.

In addition, the project proposes to transfer pre-trial investigations of smuggling of cultural valuables and weapons, as well as smuggling of narcotic drugs or counterfeit medicines (Articles 201, 305 of the Criminal Code of Ukraine) from the Security Service of Ukraine (SBU) to the ESB. Finally, the draft law grants exclusive rights to the ESB and the National Anti-Corruption Bureau (NABU) to initiate financial and economic activity audits of enterprises and participate in these audits. Thus, the National Police and the SBU will be excluded from the list of state financial control bodies. 

New government project on mobilization

In December 2023, the government registered a draft law on mobilization, military registration, and military service, as discussed in one of our previous reviews. However, at the beginning of January, that draft was withdrawn, and the government developed a new draft law (No. 10449) on the same issues.

The main provisions include replacing compulsory military service with basic military service (BMS) for up to five months in peacetime and up to three months during martial law. It also introduces compulsory basic military training (mandatory for men, voluntary for women) in higher education institutions, which makes those who have completed it subject to military service obligations. 

The draft law lowers the conscription age from 27 to 25 years, introduces an electronic register of conscripts, and allows for the delivery of summons through a personal account. The draft law obliges men aged 18-60 years, even if they are removed from military registration, to carry their military registration document and present it upon request to an authorized representative of the Territorial Recruitment and Social Support Center (TRSSC) or a police officer, as well as a representative of the State Border Guard Service (SBGS) in the border zone or when crossing the border.

Citizens who arrive independently (without receiving a summons) to the TRSSC will have two months from the date of their medical examination to settle personal matters before being sent for training.

Temporary deferment from the draft due to health reasons will be established for 6-12 months (currently up to 6 months). During that time, the individual must undergo another military medical commission (MMC).

The right to deferment will be granted to foster parents who care for a child (children) under 18 years of age, guardians of incapacitated persons, first-degree relatives (parents, husband or wife, children) of persons with disabilities, as well as full-time or dual-form students who are pursuing a higher level of education than their previous level. 

The draft law specifies the reservation procedure for civil servants: “reserved” status may be granted to all category “A” officials and up to 50% of the number of those eligible for military service in categories “B” and “C.” Employees of the National Police, the State Bureau of Investigation (SBI), the National Anti-Corruption Bureau (NABU), prosecutors, and the ESB will not be temporarily exempted from military service. In addition, those eligible who have lost a grandfather, grandmother, half-sister, or half-brother in the war will no longer receive deferments from being drafted.

Enlisting convicts voluntarily, except those convicted of serious crimes or crimes against Ukraine’s national security, is allowed. 

The draft law specifies influence measures for those not fulfilling their military duties. Should a citizen fail to appear before the Territorial Recruitment Center after receiving a summons, the enlistment office may apply to the court, which can impose the following measures of influence: a ban on leaving Ukraine, a prohibition on driving vehicles, and freezing funds in banks and electronic wallets.

Additionally, men aged 18-60 who are abroad cannot access consular services at Ukrainian diplomatic missions without presenting a military service record document. Exceptions may only be made for specific situations such as obtaining identity documents for return to Ukraine, consular actions concerning children (registration, passport issuance, etc.), inheritance procedures, and similar cases. 

The draft law adds continuous military service during martial law for 36 months as grounds for exemption from military service.

Strengthening responsibility for illegal border crossing during martial law

Bill No. 10453 provides for 3-8 years imprisonment for crossing the border to evade mobilization. Those who attempt to cross the border using violence and weapons illegally can receive up to 12 years. 

If a fugitive returns to Ukraine within six months after illegally crossing the border and voluntarily reports the crime to border service officials, they will be exempted from criminal liability.  

Enhancing the Protection of Rights for Victims of sexual violence

Bill No. 10420 implements the provisions of the Istanbul Convention of the Council of Europe and Directive 2012/29/EU of the European Parliament and of the Council of October 25, 2012, thereby enhancing the protection of the rights of victims of domestic and sexual violence and other crimes.

In 2023, the police received over 291 thousand reports of domestic violence (over 244 thousand in 2022). Among those who contacted the police last year, the majority were adults (over 280 thousand). Crimes related to domestic violence were reported more frequently by women: over 222 thousand statements and reports.

In 2023, there were 6,805 criminal offenses related to domestic violence recorded, as well as 947 criminal offenses against sexual freedom and sexual integrity of individuals. Among these, there were 450 cases of rape, 119 cases of sexual violence, 102 cases of engaging in sexual acts with a person under the age of 16, and 260 cases of corruption of minors. 

Currently, the rights and obligations of the victim arise when they or another person (such as a witness) file a statement regarding the offense. The draft law proposes that criminal cases involving children and adolescents under the age of 18 can be initiated even without a statement from the victims, based on information entered into the Unified Register of Pre-trial Investigations, e.g., after receiving information from open sources (videos on social networks or articles in the media).

These changes are crucial because often, the victim does not report the crime to the police, opts for reconciliation agreements, or withdraws their statement due to intimidation, pressure, or unwillingness to undergo a lengthy judicial process and medical examinations, which can cause moral and physical suffering. 

Additionally, the legislative project stipulates that in cases of sexual violence against individuals under 16 years of age and in all other offenses where the witness or victim is a minor (aged 14-18), interrogation is permitted during pre-trial investigation while adhering to the rules of interrogation during court proceedings (this interrogation will be counted as interrogation in court, meaning the individual will not have to repeat the same testimony in court). This rule aims to reduce the number of interrogations a person has to undergo, as each interrogation can be re-traumatizing for the victim.

Another important provision of the project concerns changes to the procedure of reconciliation agreements. Currently, the law allows victims, suspects, or accused individuals to enter into reconciliation agreements independently. However, in cases of offenses related to domestic violence, such agreements can only be initiated by the victim. The project proposes to extend the requirement for the victim’s exclusive initiative to cases involving sexual freedom and integrity violations, such as forced marriage, abortion, or sterilization. 

Public oversight over the provision of Social Services

Bill No. 20435 introduces public oversight over institutions providing social and psychiatric services. These include territorial social service centers, employment centers, rehabilitation centers for people with disabilities, geriatric institutions (nursing homes for older people and persons with disabilities), shelters for minors, and others.

For the public to better monitor what is happening inside such facilities and whether they comply with the law, the draft law proposes establishing public councils in all institutions of this type (state, municipal, private). Representatives of the public council will have the opportunity to visit the institution’s premises, document legislation violations, receive information about the provision of social or psychiatric services, and participate in the work of advisory bodies. 

The government must develop a model provision for the public council. Representatives from civic associations, charitable organizations, media, relatives, and guardians of recipients of social services may be elected to the council. Employees of government bodies, institutions providing social or psychiatric services, and those receiving social services in that institution cannot be selected. The public council may consist of 5 to 25 members.

The draft law opens up new opportunities for public oversight of the quality of social services, ensuring greater transparency and accountability of institutions providing these services. 

Ensuring the rights of service members to biological parenthood

On November 22, 2023, the Verkhovna Rada adopted Law No. 3496-ІХ regarding the provision of the right to biological parenthood (motherhood) for military members and other individuals. Under this law, the state guaranteed (and paid for) the preservation of reproductive cells provided by service members to ensure parenthood/motherhood in case of injuries affecting reproductive functions. However, an amendment was added to the final version of the law, stipulating the disposal of cells from deceased military personnel three months after their death. This raised societal questions about regulating posthumous parenthood, which was previously unregulated.

Within two weeks, five draft laws were registered aimed at addressing the issue of preserving and using the reproductive cells of deceased war participants. 

On February 7, the Verkhovna Rada adopted Bill No. 10448, which stipulates that “an individual whose reproductive cells are preserved has the right to dispose of them in the event of their death.” If these reproductive cells are used for conception, the deceased individual is recognized as the parent of the child born. In the case of a deceased service member, the reproductive cells will be stored free of charge (at the expense of the budget) for three years from the date of death. After this period, the storage may be extended at the expense of another person designated in the service member’s disposition regarding their own reproductive cells.

Strengthening sanctions against the aggressor state and its accomplices

People’s deputies propose to further synchronize the imposition of sanctions against Russia with our international partners. Currently, one of the grounds for Ukraine  initiating sanctions is resolutions of the UN  General Assembly and Security Council, as well as decisions (regulations) of the EU Council.

The draft law adds to the grounds for the application of sanctions by Ukraine and the decisions on sanctions of the United Kingdom and the United States. The project also obliges the government to: 

  • Within three days from the date of adoption of the decision on sanctions by the countries mentioned above, prepare proposals to the NSDC regarding the implementation of sanctions against the same individuals/companies/states by Ukraine.
  • After adopting the draft law, submit to the NSDC a proposal to join Ukraine to all sanctions already imposed by these countries against the aggressor state, legal and natural persons posing threats to national interests, security, sovereignty, and territorial integrity of Ukraine.

Synchronizing sanctions policies with international partners will increase pressure on the aggressor state and entities posing a threat to Ukraine’s national interests. 

Reforming the System of selecting leaders of Scientific Institutions

The current legislative framework does not provide for a systematic evaluation of the effectiveness of the work of managers of state and municipal scientific institutions. Therefore, the government proposes to carry out a reform (Bill No. 10424) of the appointment of leadership in scientific institutions, introducing performance indicators and term limits for holding managerial positions.

The project proposes to appoint leaders of scientific institutions through a competitive procedure (which is currently absent). Candidates are recommended to submit a five-year strategic development plan for the scientific institution, including performance indicators (common for all scientific institutions) developed by the Ministry of Education and Science and approved by the Cabinet of Ministers. Additionally, the strategic plan may include indicators developed by other central authorities or the academic council (these indicators should not exceed ¼ of those approved by the Cabinet of Ministers).

Candidates present their developed plan at meetings with the collective of scientific workers. Then, the team conducts a secret ballot for the candidates, with each scientist able to support no more than one candidate. If none of the candidates for the leadership position receives more than 50% of the votes of those present, a second round of voting is held. The institution’s owner (a government body, such as a Ministry) appoints the candidate who receives over 2/3 of the votes of the scientific workers in the second round. If, in the second round, a candidate gets more than 50% but less than 2/3 of the votes, the institution’s owner may still appoint this candidate. However, the owner must announce a new competition in case of motivated objections. The bill limits the tenure of one person in the position of leader to two terms of 5 years each (in case of reorganization or merger of several institutions, the number of years in the leadership position is summed up).

The project also changes the requirements for candidates. Specifically, it reduces the minimum tenure in scientific or scientific-educational positions from 10 to 5 years. It also defines the list of positions that a candidate must have held. If currently, any scientific worker can apply for the leadership position, according to the project, only those scientific workers who have held managerial positions (managers, rectors, members of the Presidium of the National (or branch-level) Academy of Sciences, scientific secretaries, heads of scientific departments, chairs, etc.) will have such a right. Advisors, deputies, professors, associate professors, lecturers, and research associates will not be eligible candidates.

Within a month of appointment, the leader must submit the draft strategic plan adopted at the collective meetings of the scientific institution for approval by the institution’s academic council. To implement this plan, the leader develops annual operational plans (which must also be approved by the academic council) and reports annually according to them. If the performance indicators of the scientific institution are not achieved, the leader may be dismissed. Changes to the strategic plan are envisaged only in extreme cases: force majeure, changes in legislation affecting the activities of the scientific institution, changes to the charter, etc.

The bill will positively impact scientific institutions’ development, as competitive conditions will be created for selecting their leaders, and a system for evaluating their effectiveness will be introduced. Limiting the tenure of the leadership position will prevent the emergence of “eternal” leaders who often fail to perceive new trends in their respective fields and the necessity of change. 

Changes to the Road Traffic Rules (RTR) related to electric scooters and the use of handheld speed control radars

In March 2023, the President of Ukraine signed a law that included a new term in the RTR, “light personal transport,” and defined electric scooters as one of the types of such transport. 

The next step is to recognize users of this transport as participants in road traffic and regulate the rules of riding. For this purpose, bill No. 10441 was registered. According to it, responsibility for violating traffic rules extends to those who operate electric scooters. Such individuals are equated to pedestrians, cyclists, and animal herders. Accordingly, the same fine will be imposed on them for violations of twenty non-taxable minimum incomes of citizens, which amounts to UAH 340.

Persons aged 14 and older will be allowed to operate electric scooters and similar means of transport. Electric scooters must be equipped with lights and reflective devices and may move up to 20 km/h on special bicycle lanes. In the absence of such lanes, they can operate on the edge of the roadway, roadside, or sidewalk.

The bill also introduces amendments to the Law of Ukraine “On the National Police” (Article 40), prohibiting handheld (portable) speed control radars and obliging the National Police to install stationary radars. 

Mandatory professional liability insurance for medical workers and pharmacists

Bill No. 10452 proposes to make civil liability insurance mandatory for medical and pharmaceutical professionals. If adopted, medical practitioners and pharmacists will be required to enter into insurance contracts to cover potential financial losses in case of harm caused while performing their professional duties. Without such insurance, medical and pharmaceutical professionals will not be able to start working.

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