Covert Investigative Measures in criminal proceedings: the balance between efficiency and human rights

Abstract

The purpose of the article is to comprehensively analyze the problematic aspects of the use of covert investigative (search) actions (hereinafter referred to as (CRI)) in criminal proceedings in Ukraine, taking into account the guarantees of compliance with constitutional and conventional human rights. Particular attention is paid to the issue of the effectiveness of judicial control, the access of the defense to materials obtained during CRI, and the compliance of national practice with the standards of Article 8 of the European Convention on Human Rights (hereinafter referred to as the ECHR).

The research methods were based on a combination of analysis of the current legislation of Ukraine, the comparative law method taking into account the decisions of the European Court of Human Rights (hereinafter referred to as the ECHR), as well as the generalization of scientific approaches and practical conclusions of domestic and foreign researchers. Systemic, formal-legal and logical-analytical methods were used to identify shortcomings in legal regulation and assess its compliance with international standards.

The results of the study indicate that the current practice of applying CRI is characterized by an imbalance between the interests of the state in ensuring effective investigation criminal offenses and the need to guarantee human rights. It was established that judicial control is mainly formal in nature, which reduces its preventive potential and does not provide for a proper verification of the validity of the petitions. Limited access of the defense to the materials of the N(R)D violates the principle of adversarial and equality of parties in the criminal process. It was also revealed that there is no complete statistical reporting on the effectiveness of the N(R)D, which makes it impossible to objectively assess their effectiveness. The practice of the ECHR demonstrates that interference with private life is permissible only if there is a legitimate purpose, compliance with the principle of proportionality and effective safeguards, which is currently lacking in Ukrainian law enforcement practice. The conclusions emphasize the need to improve the legal regulation of the N(R)D institute and reform the mechanisms of judicial control in order to ensure their real, rather than declarative, effectiveness. It is proposed to introduce clear procedural guarantees of access of the defense to the materials that justify the N(R)D, create a system of proper statistical reporting, and strengthen the role of courts in verifying the proportionality and legality of such measures. The implementation of these proposals will contribute to the harmonization of Ukrainian practice with international standards, increasing the efficiency of criminal proceedings and strengthening guarantees for the protection of human rights. The article contributes to the development of human rights protection standards within covert procedural activity in criminal justice.