Qualification of staff of private security firm in Ukraine
Licensing body that is authorized to issue licenses for private security firms has significantly changed its practice in this regard since January of 2015.
Thus, the Ministry began to refuse to issue a license for security activities to companies that did not specify the data of specific security guards in the package of documents for obtaining a license that would meet the licensing requirements.
It must be clarified that in practice over the past five years the Ministry has never required these documents to obtain a security license for firms in Kyiv and other regions. The main requirements and the package of documents concerned the so-called specialist in organizing security measures, it included the need to provide a certificate of no criminal record, medical certificates: narcologist’s, psychologist’s, general medical examination; confirmation of the required length of service was often required, which necessitated the provision of a military service record book, a copy of the track record and other similar documents.
It goes without saying that such a drastic change in requirements by the licensing authority, which is not caused by a change in the licensing conditions for carrying out business activities to provide security services, caused a stormy reaction of licensees.
The specialists of our company considered this issue and came to the following conclusions.
None of the licensing bodies, including the Ministry of Internal Affairs, in determining the package of documents that a licensee must submit to obtain a license for security activities, can deviate from the provisions of the Law of Ukraine “On licensing certain types of economic activity”.
Part 2 of Article 9 of this Law determines that security activities are subject to licensing not only in accordance with this law, but also taking into account the features defined by the Law of Ukraine “On Security Activities”.
The general rule established by Article 10 of the Law on Licensing stipulates that the licensing authority may, in addition to the application, require only the documents stipulated by the Decree of the Cabinet of Ministers of Ukraine No. 756 of July 4, 2001. However, this reference cannot be used in our case, since this resolution does not mention the licensing of security activities.
Returning to the features that can be determined by the Law on Security Activities, we note that they really are there and they are significant.
So, part 3 of Article 7 of the Law of Ukraine “On Security Activities” establishes that along with the application for the issuance of a security license the documents that confirm compliance with the established conditions for employees involved in security measures are also to be submitted.
However, the question arises: how many employees (security guards) should be employed at the company at the time of obtaining the license? Most licensees would prefer to hire such personnel right after obtaining a security license and signing contracts for the protection of specific facilities in order to minimize startup costs for starting a business.
Until 2015, the licensing authority did not require the availability of security guards at the enterprise at the time of obtaining the license, and this statement was submitted blank.
Item 3.3.of the licensing conditions establishes that the staff of the security activities entity must include guards who meet the qualification requirements.
The Law “On Security Activities” defines the concept of “the security activities entity”. This is a business entity that carries out security activities on the basis of a license. However, the licensee applying for a license is unlikely to fall within this definition. The licensee does not carry out security activities and has not even received a security license. The assignment of a licensee to the category of security activities entities after receiving a security license will be difficult until they really begin to carry out security activities - conclude security agreements and provide related services.
In the context of these norms, the position of the licensing authority regarding the obligation of the licensee at the time of obtaining the security license to have guards on staff does not seem legal.
Of course, carrying out security activities directly, the company is obliged to fulfill the qualification conditions established by paragraph 1 of Article 11 of the Law. It must hire security
personnel from among the citizens of Ukraine who have reached 18 years of age and who have received appropriate education or training.
Thus, it is necessary to sum up the possible illegality of the requirements of the licensing authority regarding the availability of security guards at the time of obtaining the license.
In existing conditions, licensees have a choice: to fulfill the requirements of the licensing authority or challenge them in a judicial proceeding.
In connection with the entry into force of the license conditions of November 18, 2015, the requirements for security personnel at the stage of obtaining a license have changed. You can familiarize yourself with the commentary of our specialist on the new edition of the licensing terms regarding the requirements for security personnel at the following link.
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