Covert investigative (surveillance) measures are a complex set of tools used in pretrial investigations which, as international practice shows, are employed only in exceptional cases. However, in an adversarial legal system, the prosecution seeks to gain an additional advantage in its battle against the defense, and law enforcement officials strive to classify any case as “exceptional” in order to be able to employ covert investigative measures. Alexander Shadrin, an attorney and partner at Barristers LLP, explained how to identify and counter unlawful special investigative measures during his lecture “The Concept of Special Investigative Measures: Procedures for Granting Authorization.” “Preemptive” Defense Strategies” as part of the “Searches and Other Investigative Actions” module at the Legal High School’s School of Criminal Practice.

Since the definition of investigative measures set forth in the relevant law and the Criminal Procedure Code of Ukraine does not provide an unambiguously clear understanding of what they are, in which cases they are applied, and to what extent they are lawful, there is no single answer to the question of how to counter such actions. At the same time, the CPC and the Law of Ukraine “On Operational-Investigative Activities” establish procedural options for the prosecution, but not for the defense.

The problem is that the law presumes the lawful use of NSD, yet cases of abuse of this authority are not uncommon; the lecturer cited examples of such cases, having encountered similar situations in his personal practice.

Oleksandr Shadrin, a partner at Barristers Law Firm, briefly discussed various types of special investigative means, noting typical violations in their application, and focused on issues related to access to mobile phone data.

Unfortunately, “wiretapping” has already become a common occurrence, despite the fact that courts often refuse to grant permission for its use. The situation becomes even more complicated if a detainee’s phone falls into the hands of law enforcement. On the one hand, if a person knows that their data is being accessed, it is no longer considered covert. On the other hand, if the person did not grant permission for access, it must be authorized by a court, which requires filing a motion—just as with a warrant for the collection of electronic communications data. “The trend is toward obtaining temporary access to data on a phone,” noted Mr. Shadrin.

The lecturer offered several pieces of advice for such a situation. As soon as an investigator or other representative of the prosecution gains physical access to the phone, you must clearly state your unequivocal refusal to allow access to the data stored on the phone. Since all investigative actions—such as arrests and searches—may be video-recorded, the verbal statement must be made loudly and clearly. This objection must also be noted in the official record.

In addition, it is advisable to set a numeric (or alphanumeric) passcode on the phone (and the more complex it is, the better). Security measures designed to protect data in the event of loss or theft—such as facial recognition or fingerprint authentication—can be easily bypassed if a person is physically in the custody of law enforcement. Moreover, holding a phone up to one’s face is even easier than “forcibly” taking a fingerprint, though the latter is also not difficult.

The most challenging situation for the defense is dealing with special investigative measures conducted as part of counterintelligence activities. Such motions and court orders authorizing special investigative measures are classified as “Top Secret,” and the only thing a defense attorney can verify is whether or not a court order actually authorized the measure.