Concept for the Draft Law ‘On Law Enforcement Agencies’

Problem Statement

The Rule of Law Roadmap, the Overarching Strategic Plan for Law Enforcement Reform as Part of the Security and Defence Sector of Ukraine for 2023–2027 and the Government Action Plan for its implementation provide for unifying the legal framework for organising the system of law enforcement agencies, by establishing criteria for distinguishing the areas of activity of law enforcement agencies and other state bodies based on their exclusive functional focus. A similar measure is also set out in the Rule of Law Roadmap.

This concerns the development and adoption of the Law ‘On Law Enforcement Agencies’, which should define:

1. the system of law enforcement agencies;
2. the unified foundations for their organisation and functioning, the main criteria for delimiting their competence and areas of activity;
3. the entrenchment of the principles of integrity, gender equality and non-discrimination in their activities;
4. the development of their analytical capacities, including criminal analysis and the ILP model;
5. the consolidation of their institutional independence, an adequate level of financial, logistical and technical support and guarantees of social and legal protection for employees of law enforcement agencies;
6. forms of inter-agency cooperation and coordination between law enforcement agencies and the prosecution service, including information exchange, as well as interaction with other public authorities and local self-government bodies.

In addition, state policy documents on the reform of all law enforcement agencies provide for improving internal control and anti-corruption mechanisms, applying uniform integrity criteria and standards to vet employees of all law enforcement agencies and monitor them on an ongoing basis, as well as introducing common ethical principles for employees of law enforcement agencies.

These measures are aimed at addressing problems related to duplication of functions, more clearly delimiting the powers of law enforcement agencies, strengthening their independence, increasing their effectiveness and improving mechanisms for interaction as well as legal and social guarantees for their employees.

Proposals for the Law of Ukraine ‘On Law Enforcement Agencies’

• 2.1. Key Definitions

For several decades, legal scholarshipFor example: A. V. Lapkin. Prosecutor in Criminal Proceedings: Theoretical, Legal, Organisational and Methodological Problems: monograph. Kharkiv: Pravo, 2020, pp. 98, 122–123, 287; O.S. Tarasenko. On the Concept of Law Enforcement Bodies of Ukraine. Scientific Bulletin of Public and Private Law. Issue 3, 2025, pp. 246–260; A.V. Stolitnii. Legislative Collisions in Defining ‘Law Enforcement Bodies’ and ‘Law Enforcement Agencies’ in the Context of Prosecutorial Supervision: Ways to Unify Terminology. Current Problems of Innovative Economy and Law. 2026. No. 1, pp. 27–31 etc. has debated the meaning and relationship between the concepts of law enforcement bodies and law enforcement agenciesIn Ukrainian «правоохоронні органи» and «органи правопорядку» properly — first is the ‘law defending/securing bodies’ and second is ‘law and order bodies’ (this semantic difference is not obvious in English, but reflects some conceptual aspects of the Ukrainian legislation development during past years)., a debate that intensified after the 2016 amendments to the Constitution of Ukraine.

At that time, the concept of law enforcement agencies appeared in the text of the Basic Law as an object of prosecutorial supervision: in accordance with the new functions of the prosecutor’s office, it supervises covert and other investigative and search actions of law enforcement agencies (Article 131-1 of the Constitution of Ukraine).

In view of this, it may be concluded that, according to the constitutional functions of the prosecutor’s office, law enforcement agencies are vested with powers to carry out covert and other investigative and search actions. Therefore, from the perspective of constitutional regulation, law enforcement agencies primarily include bodies authorised to conduct pre-trial investigations of criminal offences and covert investigative (search) actions, as defined respectively by the CPC of Ukraine (Articles 41 and 216) and the Law of Ukraine ‘On Operational-Search Activities’ (Article 5).

At the same time, Section I of the Constitution of Ukraine uses the concept of law enforcement bodies: ‘ensuring state security and protecting the state border of Ukraine shall be entrusted to the relevant military formations and law enforcement bodies of the state, the organisation and procedure for whose activities shall be determined by law’ (Article 17 of the Constitution). However, this wording is more likely an artefact of outdated terminology, as indicated by two circumstances: (1) law enforcement bodies are mentioned in the general section of the Constitution in the context of national security, rather than in special provisions concerning the activities of executive authorities and justice; (2) amendments to Section I of the Constitution are extremely difficult, unprecedented and, in practice, almost impossibleA draft law amending Section I ‘General Principles’, Section III ‘Elections. Referendum’ and Section XIII ‘Amendments to the Constitution of Ukraine’ is submitted to the Verkhovna Rada of Ukraine by the President of Ukraine or by at least two thirds of the constitutional composition of the Verkhovna Rada of Ukraine and, provided it is adopted by at least two thirds of the constitutional composition of the Verkhovna Rada of Ukraine, is approved by an all-Ukrainian referendum called by the President of Ukraine (Article 156 of the Constitution of Ukraine). There are no known cases of amendments to Section I in the history of the current Constitution of Ukraine., because this section defines the general principles of the state system, while constitutional amendments introduced after 2014 were primarily aimed at reforming the justice system and defining the state’s European integration and Euro-Atlantic course.

Practising lawyers often refer to the Law of Ukraine ‘On State Protection of Court Employees and Law Enforcement Officers’, which allegedly defines the list of law enforcement bodies. However, this Law expressly states that the list contained in it may be used only for the purposes of regulation by this Law. Under it, ‘law enforcement bodies’ are the prosecution authorities, the National Police, the security service, the Military Law Enforcement Service in the Armed Forces of Ukraine, the National Anti-Corruption Bureau of Ukraine, state border protection bodies, the Economic Security Bureau of Ukraine, penitentiary bodies and institutions, pre-trial detention centres, state financial control bodies, fish protection bodies, state forest protection bodies and other bodies exercising law-applying or law enforcement functions (Part 1 Article 2 of the Law).

The problem is, first, that this concept applies precisely for the purposes of that Law, as expressly stated in its text; second, that there is no clear criterion by which those particular bodies are included in the list; and third, that the list is not exhaustive, while defining law enforcement bodies through law application and law enforcement functions expands it to a state of complete uncertainty because the features and the subject of the definition repeat each other. Law enforcement bodies cannot be defined as bodies that perform law enforcement functions, since this definition adds nothing to the content of the concept and does not make it possible to understand what such functions consist of.

The law enforcement function is an extremely broad concept. In theory, it includes not only any activity of public authorities involving the application of legal norms but, in some views, even the activity of any person who obeys legal norms and therefore applies them. In other words, reliance on the definition contained in the Law ‘On State Protection of Court Employees and Law Enforcement Officers’ is impossible under any circumstances except where practical issues of applying its provisions are being resolved. Moreover, the legal uncertainty of the list of law enforcement bodies is disorientingWhite Paper on the Depoliticisation of Law Enforcement Agencies and the Prosecutor’s Office: Appointment/Dismissal of Leadership, Y.O. Krapyvin. Centre for Policy and Legal Reform. Kyiv: O.D. Buria, PE. 2023, p. 46..

In 2023, the Supreme Court resolved an exceptional legal problem consisting in the absence, at the legislative level and in case law, of clear criteria for defining the concepts of ‘law enforcement body’ and ‘employee of a law enforcement body’. This had led to inconsistent application of substantive and procedural law and had an extremely negative impact on the implementation of the principle of legal certainty. The subject of divergent case law was the determination of the victim who enjoys enhanced protection by the state (an employee of a law enforcement body) in the relevant elements of criminal offencesA law enforcement officer is designated as a victim of such criminal offences as resistance (Article 342 of the CC of Ukraine), interference with activities (Article 343 of the CC of Ukraine), threat or violence (Article 345 of the CC of Ukraine), intentional destruction or damage to property (Article 347 of the CC of Ukraine), attempt on life (Article 348 of the CC of Ukraine), taking hostage (Article 349 of the CC of Ukraine) and failure to take security measures (Article 380 of the CC of Ukraine)..

According to the legal position of the Supreme Court in case No. 633/195/17 (proceedings No. 13-39ks23), law enforcement bodies should include: (1) public authorities defined in the laws of Ukraine as law enforcement bodies or (2) those exercising a law enforcement function assigned to them at the legislative level. When resolving whether a person is an employee of a law enforcement body, it is necessary to proceed from a systemic analysis of: the provisions of the Constitution of Ukraine, the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, the Code of Ukraine on Administrative Offences and normative legal acts regulating the legal status of the relevant public authority with which the person is in an employment or service relationship; the employee’s powers under their job description, which provide for the exercise of a law enforcement function, including the application of preventive measures and coercive measures defined by law, as well as measures provided for by criminal procedure legislation and legislation on administrative offences; and legislation on pension provision for the relevant category of employees.

Attention should also be paid to work by auxiliary bodies of Parliament. In 2024, the Research Service of the Verkhovna Rada of Ukraine published a document entitled ‘Scientific Concept of Legislative Support for the Activities of Law Enforcement Agencies of Ukraine’. It rightly notes that the existing conceptual and legislative uncertainty regarding the concept, fundamental principles, status, tasks and functions of law enforcement agencies as a separate autonomous system, as well as their delimitation from other state bodies performing related functions, has a negative impact on combating crime and on the effectiveness of the relevant state policy in this field. As a result, this legal uncertainty leads to inconsistency and imbalance in the work of the relevant state institutions, ineffective performance of their functional powers and, consequently, failure to ensure guarantees for protecting citizens from criminal and other unlawful encroachments, failure to observe the rule of law and failure by state bodies to perform their main task of protecting the constitutional rights and freedoms of the individual and citizen.

In general, imperfect legal regulation has a negative impact on determining the status of a particular state body and its place in the system of public authorities, and leads to inconsistent law enforcement practice, including in criminal proceedings concerning offences against the authority of public authorities.

In our view, the most productive approach to distinguishing between the concepts of law enforcement bodies and law enforcement agencies is a functional approach, based on the main tasks and functions of the relevant bodies. This approach is fully consistent with the Constitution of Ukraine and corresponds to the Rule of Law Roadmap, the Overarching Strategic Plan for Law Enforcement Reform as Part of the Security and Defence Sector of Ukraine for 2023–2027 and the Government Action Plan for its implementation.

This approach makes it possible to define:

1. the relationship between these concepts. It appears most appropriate to distinguish between law enforcement bodies and law enforcement agencies as a broader and a narrower category: every law enforcement agency is a law enforcement body, but not every law enforcement body may be classified as a law enforcement agency;
2. the criteria for classifying a particular state body as law enforcement, including functions and corresponding powers, namely: 1) functions: protection of the rights and freedoms of the individual, society and the state from unlawful encroachments; protection of public order; ensuring public and national security; 2) powers: prevention, detection, solving and investigation of criminal offences; conducting operational-search measures and covert investigative (search) actions; application of direct coercive measures on behalf of the state, including the use of firearms.

• 2.2. The Concept of a ‘Law Enforcement Agency’ and Its Features

Legal order is a term widely used both in legal scholarship and in national and international law. Thus, Part 1 Article 19 of the Constitution of Ukraine provides that the legal order in Ukraine is based on principles according to which no one may be compelled to do what is not provided for by legislation.

Therefore, legal orderTheory of State and Law: textbook for students of higher legal education institutions / O.V. Petryshyn, S.P. Pohrebniak, V.S. Smorodynskyi et al.; edited by O.V. Petryshyn. Kharkiv: Pravo, 2014, p. 337. is the actual state of ordering of social relations through legal means. The latter formulation effectively emphasises three components of this concept: (a) law; (b) coercion; and (c) order. In all cases, therefore, it concerns, in one way or another, the coercive application of the law to protect legal order by the bodies responsible for its protection.

In view of this, the following definition is proposed:

Law enforcement agencies are central executive bodies and structural units of state bodies and military formations whose main functions under the law are to protect the rights and freedoms of the individual, society and the state from unlawful encroachments, protect public order and ensure public and national security.

This definition takes into account situations where these functions are not the main functions of a state body or military formation, but its structure includes units that perform such functions, for example the Military Law Enforcement Service in the Armed Forces of Ukraine.

The main features of law enforcement agencies may be considered to include:

1. performance of functions related to protecting the rights and freedoms of the individual, society and the state from unlawful encroachments, protecting public order and ensuring public and national security;
2. the organisation and procedure for the activities of such agencies and their administrative and legal status are defined by law;
3. belonging to the security and defence sector;
4. powers to prevent, detect, suppress, solve and investigate criminal offences;
5. powers to conduct operational-search activities and/or covert investigative (search) actions;
6. the right to apply direct coercion on the grounds and in cases defined by law, including the right to use firearms;
7. prosecutorial supervision over the activities of such agencies in countering offences and carrying out covert and other investigative and search actions of law enforcement agencies.

• 2.3. Subject Matter of the Law

The following state bodies and military formations that could be classified as law enforcement agencies, or whose units could fall within the scope of the relevant law, were analysed* for compliance with the features listed above: the National Police of Ukraine (NPU); the State Bureau of Investigation (SBI); the National Anti-Corruption Bureau of Ukraine (NABU); the Economic Security Bureau of Ukraine (ESBU); the Security Service of Ukraine (SSU); the State Border Guard Service of Ukraine (SBGS); the Foreign Intelligence Service of Ukraine (FISU); the Department of the State Protection of Ukraine (UDO); penitentiary bodies and institutions and pre-trial detention centres of the State Criminal-Executive Service of Ukraine (SCES); the intelligence body of the Ministry of Defence of Ukraine (Defence Intelligence of Ukraine); the Military Law Enforcement Service in the Armed Forces of Ukraine (MLES AFU); units of the National Guard of Ukraine (NGU); the State Customs Service of Ukraine (SCS); and the Court Security Service (CSS).

The list of bodies and military formations was formed on the basis of Article 216 of the Criminal Procedure Code of Ukraine, the Laws of Ukraine ‘On National Security of Ukraine’ and ‘On State Protection of Court Employees and Law Enforcement Officers’, the Overarching Strategic Plan for Law Enforcement Reform as Part of the Security and Defence Sector of Ukraine for 2023–2027 and the Government Action Plan for its implementation.

Compliance with the above features is established on the basis of the provisions of the laws of Ukraine regulating the activities of these bodies.

In addition, the analysis identified certain shortcomings in legislation that will need to be addressed.

• 2.3.1. Status of state bodies

The NPU, the ESBU, the SCES and the SCS have the status of central executive bodies, while the NABU is a central executive body with special status. Under Ukrainian legislation, these bodies belong to the executive branch.

The SBI is a law enforcement body, while the UDO and the SBGS are special-purpose law enforcement bodies. Under the Law of Ukraine ‘On Intelligence’, the SBGS is also classified as an intelligence body.

The SSU has the status of a special-purpose state body with law enforcement functions.

The Court Security Service is a state body within the justice system.

The FISU is defined as an intelligence body with the status of a separate state body that is not an executive authority.

The NGU is a military formation with law enforcement functions, while the MLES AFU is a special law enforcement formation within the Armed Forces of Ukraine.

The status of a central executive body means that such bodies are established in accordance with the Law of Ukraine ‘On Central Executive Bodies’ and that this Law applies to their activities insofar as it does not contradict special laws. Under Article 16, central executive bodies are established to perform specific functions related to implementing state policy. Their activities are directed and coordinated by the Cabinet of Ministers of Ukraine through the relevant ministry. Special status of a central executive body provides for a special procedure for forming the composition of such a body, if it is collegial, or a special procedure for appointing its head, as well as a special form of interaction with the Government.

The concept of a ‘state body’ has a broad and generalising meaning. The Law of Ukraine ‘On Prevention of Corruption’ defines this concept as follows: a public authority, including a collegial state body, or another public-law entity, regardless of whether it has the status of a legal entity, which is vested by legislation with powers to exercise authoritative managerial functions on behalf of the state and whose jurisdiction extends to the entire territory of Ukraine or to a separate administrative-territorial unit. Accordingly, this concept covers legislative, executive and judicial bodies.

• 2.3.2. Functions and tasks

The laws regulating the activities of the state bodies and military formations included in the list show different approaches to defining the functions and tasks of these bodies, as well as to the content of the concepts of ‘task’ and ‘function’. However, the prevailing approach is that a body’s function is its main purpose, while its tasks are specific areas of activity.

Protection of the rights and freedoms of the individual, society and the state from unlawful encroachments is, in essence, a function of all the bodies on the list. Such protection means ensuring the right to life, liberty, inviolability, personal security and private property, preventing crime, combating terrorism and organised crime and protecting the sovereignty, territorial integrity of the state and the inviolability of its borders.

Ensuring public and national security is also among the functions of all state bodies on the list.

National security is the protection of state sovereignty, territorial integrity, the democratic constitutional order and other national interests of Ukraine from actual and potential threats.

Public security and order means the protection of interests vital to society and individuals, as well as the rights and freedoms of the individual and citizen, the safeguarding of which is a priority task of the security forces, other state bodies, local self-government bodies, their officials and the public, which implement coordinated measures to realise and protect national interests from the impact of threats.

Five bodies on the list have powers to conduct pre-trial investigations: the NPU, the SBI, the NABU, the ESBU and the SSU. In addition to these five bodies, operational-search activities may also be conducted by the SBGS, the FISU, the UDO, the SCES and Defence Intelligence of Ukraine. In view of Article 131-1 of the Constitution of Ukraine, all these bodies are subject to prosecutorial control. However, the FISU and Defence Intelligence of Ukraine cannot be classified as law enforcement agencies, since their main function is intelligence rather than law enforcement activity.

All bodies on the list have the right to use physical force, special means and firearms on the grounds and in cases defined by law. At the same time, the provisions of the laws regulating the activities of the SBI, the NABU, the ESBU, the FISU, the UDO, the SCES, Defence Intelligence of Ukraine, the NGU and the Court Security Service are blanket provisions and refer to the relevant provisions of the Law of Ukraine ‘On the National Police’.

• 2.3.3. Belonging to the security and defence sector

Under the Law of Ukraine ‘On National Security of Ukraine’, the SBI, the NABU, the ESBU, the SCES and the SCS are not included in the security and defence sector.

Three of the listed bodies have almost identical legal status: the NABU, the ESBU and the SBI. In our view, however, their exclusion from the security and defence sector is erroneous.

Under the Law of Ukraine ‘On National Security of Ukraine’, the security and defence sector is a system of public authorities, the Armed Forces of Ukraine, other military formations established in accordance with the laws of Ukraine, law enforcement and intelligence agencies, special-purpose state bodies with law enforcement functions, civil protection forces, the defence-industrial complex of Ukraine, whose activities are subject to democratic civilian control and, in accordance with the Constitution and laws of Ukraine, are functionally aimed at protecting Ukraine’s national interests from threats, as well as citizens and civil society associations that voluntarily participate in ensuring Ukraine’s national security.

Thus, an important criterion for classifying a particular state body as part of the security sector is its functional focus on protecting the national interests of the state from threats.

Ukraine’s national interests are the vital interests of the individual, society and the state, the realisation of which ensures Ukraine’s state sovereignty, its progressive democratic development and safe living conditions and welfare for its citizens.

Accordingly, threats to Ukraine’s national security are phenomena, trends and factors that make impossible or complicate, or may make impossible or complicate, the realisation of Ukraine’s national interests and the preservation of its national values. Crime is among such threats.

The SBI, the NABU and the ESBU were established to counter specific categories of criminal offences. Moreover, the Law ‘On the National Anti-Corruption Bureau of Ukraine’ states that this body counters corruption and other criminal offences committed by senior officials authorised to perform state or local self-government functions and constituting a threat to national security. Under the Law ‘On the Economic Security Bureau of Ukraine’, this body is tasked with countering threats to Ukraine’s economic security, which is a component of national security. Therefore, the SBI, the NABU and the ESBU should be classified as part of the security and defence sector as security forces.

Based on the analysis conducted, it is proposed to classify the following as law enforcement agencies:

2.3.4. Law enforcement agencies and the list of issues to be regulated by the law

a) the following public authorities, to which the provisions of the Law of Ukraine ‘On Law Enforcement Agencies’ would apply in full:

• the National Police of Ukraine;
• the State Bureau of Investigation;
• the National Anti-Corruption Bureau of Ukraine;
• the Economic Security Bureau of Ukraine.

b) structural units of the following state bodies and military formations, to which the provisions of the Law of Ukraine ‘On Law Enforcement Agencies’ would apply partially:

• the Security Service of Ukraine;
• the State Border Guard Service of Ukraine;
• the Department of the State Protection of Ukraine;
• the State Criminal-Executive Service of Ukraine;
• the National Guard of Ukraine;
• the State Customs Service;
• the Military Law Enforcement Service in the Armed Forces of Ukraine;
• the Court Security Service.

In the future, the State Bureau of Military Justice and customs may be added to the list of law enforcement agencies to which the provisions of the Law would apply in full.

It is proposed that the subject matter of the Law ‘On Law Enforcement Agencies’ include the following issues:

1. the concept of a law enforcement agency and other definitions related to the activities of such agencies;
2. the organisational and legal status of law enforcement agencies and the features of special status within the executive branch;
3. an exhaustive list of law enforcement agencies;
4. the foundations for the activities of law enforcement agencies, including principles of activity, functions, powers, tasks, guarantees of independence, organisational foundations, model structure and the overall authorised staffing level of each agency;
5. the foundations for analytical activity, including the use of the ILP model, consideration of criminal policy in the activities of law enforcement agencies, application of the SOCTA and IOCTA systems, regular assessment of the crime situation through crime surveys and victimisation surveys, as well as public trust in these agencies, including the sense of security as a key component of trust;
6. the foundations of service in law enforcement agencies, including the principles and procedure for appointing heads, candidate requirements, terms of office of heads, grounds and procedure for early termination of their powers, a list of typical positions such as detective and analyst, the procedure for appointing and dismissing employees, requirements for candidates for positions, general principles for wearing uniforms, general principles for awarding special ranks, social protection and guarantees of material support;
7. the grounds and procedure for using physical force, special means and firearms;
8. the foundations for international and inter-agency cooperation and coordination of the activities of law enforcement agencies, including principles, coordination and cooperation arrangements, the role of the MIA, the procedure and forms of cooperation and specific features of interaction between law enforcement agencies during martial law;
9. the foundations of integrity and professional ethics for employees of law enforcement agencies, including ethical principles for interaction with participants in criminal proceedings;
10. the audit and internal control system and the foundations for whistle-blower protection;
11. the general procedure and grounds for holding employees disciplinarily liable;
12. external control over the activities of law enforcement agencies, including parliamentary and public oversight.

Unifying the key foundations for the activities of the above-mentioned bodies would make it possible to eliminate gaps in legislation, clarify the place of these bodies in the overall system of public authorities and their status, strengthen guarantees of their independence and improve the system of interaction between them so that they can perform their main functions more effectively.