Covert investigative actions under judicial oversight: analysis of judicial practice & prospects for reform taking into account the experience of State Border Guard Service of Ukraine

Abstract

The article is devoted to the analysis of the legal nature of covert investigative (search) actions (CISA) within the system of judicial control and the identification of key problems in their application. It is emphasized that judicial control is the main guarantee of the legitimacy and proportionality of interference in private life, particularly in the spheres of communication, housing, and personal data. Statistical data indicate an imbalance between the high rate of granted motions and the low evidentiary value of their outcomes, which confirms the formalization of judicial control. The study distinguishes between investigative measures and CISAs, reveals their procedural nature and significance in criminal proceedings, and examines the experience of the State Border Service of Ukraine in this area. Attention is paid to the practice of the Supreme Court, which determines the criteria for the admissibility of evidence obtained as a result of CISAs. At the same time, the analysis highlights the problems of insufficiently reasoned motions, formalism in their review, and the limited access of the defense to procedural documents. The article also examines the case law of the European Court of Human Rights, which has established standards of legality, proportionality, effective judicial control, and the prohibition of excessive interference. The application of these standards in the national legal system is considered a necessary condition for ensuring genuine, rather than declarative, protection of individual rights. The conclusion emphasizes the need to reform the institution of CISAs through the improvement of judicial decisions, the introduction of a mechanism for notifying individuals after investigative risks have been eliminated, the expansion of the defense’s procedural rights, and the enhancement of proportionality safeguards. Such an approach would preserve the exceptional nature of CISAs and maintain a balance between the state’s interest in combating crime and human rights.