02 April 2021 of the year

Who and when can use cellphone surveillance to
the first officials of the state

Today, the topics of confidentiality of telephone conversations, messages in messengers and cellphone surveillance are especially popular in the information field. The situation with the network of recordings of the meeting of the former Prime Minister and the numerous cases of telephone hooliganism against officials with the “identity change” of the interlocutor and the subsequent publication of such correspondence add fuel to the situations. Of course, the mentioned facts of interference are outside the legal field, that is, they are illegal. However, such methods can be quite legally used by law enforcement agencies, subject to the procedure provided by the Criminal Procedure Code (CCP) of Ukraine.



In what cases are covert investigative (search) actions applied? And what kind of communication channels does Secret Service monitor?

The list of covert investigative (search) actions is established by the Code of Criminal Procedure of Ukraine, which is performed on the basis of the determination of the investigating judge only under the criminal proceedings for serious or especially serious offences. As part of this article, you should pay attention to the audio and video control of the person (Article 260 of the Code of Criminal Procedure of Ukraine) and the lifting of the information from transport telecommunication networks (Article 263 of the Code of Criminal Procedure of Ukraine).

Audio and video control of a person consists in secret fixation his conversations and actions using technology, such as microphones, masked voice recorders, bugs in printers or other devices in close proximity, laser listening devices, hidden cameras, etc.

In turn, the removal of information from transport telecommunication networks includes the monitoring of telephone conversations using special technical equipment. Such kind of the lifting of the information is taken by intercepting a signal or by involving owners of communication channels.


What information can be obtained by lifting the information from transport telecommunication networks?

During such a covert investigative (search) action, operational units can establish data on the beginning, duration and end of the connection, the location of the subscriber, the content of telephone conversations, the fact of transmission and content of SMS, MMS, the recipient of such information. In addition, approximately the same information you can obtain using the hidden functionality of some popular messengers.


Who has the right to carry out covert investigative (search) actions?

According to the Code of Criminal Procedure of Ukraine, investigators or intervention units of the National Police, the Security Service of Ukraine (SBU), the National Anti-Corruption Bureau of Ukraine (NABU), the State Bureau of Investigation, the bodies performing the functions of the Tax Police, the State Penal Service and the State Border Service of Ukraine have the right to carry out covert investigative (search) actions.

In October, Act was passed permitting the NABU and the State Bureau of Investigation to remove independently information from transport telecommunication networks. It should be noted that a number of publications on traffic trade by some law enforcement officers via Telegram (data on the connection and location of the subscriber) and wiretapping are in the media.

“Now the situation is almost uncontrolled: many private structures have the opportunity to listen to anyone …” – the Attorney General stated after wiretapping of the Prime Minister.


Is it possible to protect yourself from the illegal removal of confidential information by these structures?

In this context, you should pay attention to the protection of various messengers, the number of users is growing due to ease of use. Also, there is a sense of the confidentiality of the transmitted information is ensured.

The views have arrived in the society that all messengers in one way or another cooperate with the Special Services of various countries: both Russian and Western. The ability of our law enforcement officers to receive correspondence of interest to them depends on cooperation with foreign colleagues. This fact must be taken into account in choosing messengers. However, access to the accounts of instant messengers. If they are connected with phone numbers of Ukrainian operators. Internal Special Services can access, for example, via a cloned SIM card. Viber chats is not a problem for hacking. The Head of the NABU stated that WhatsApp chats can be accessed not only using colleagues from the US FBI, but also with the help of the Security Service of Ukraine.

It should be remembered that you synchronize a mobile device with your computer with all correspondence and connections during authorization in desktop versions of instant messengers. All this information will be removed and attached to the materials of the criminal proceedings in the event of a search.

Calls via instant messengers are safe relatively in this situation. However, you have not forget about the possibility of conducting audio monitoring and recording conversations using a hidden microphone or other specialized technical tools. That is, you should be taken into account that on the other side of the “wire” there is always a second subscriber who can cooperate with unfair law enforcement officers and provoke ambiguous conversations, which are further interpreted in favour of opponents.


In what case will the information received during the conducting covert investigative (search) actions become evidence in court?

Although getting information about the conversations of any person is not difficult. If it is necessary to use officially such information in criminal proceedings, the conditions to be satisfied and obtain an appropriate determination by the investigating judge of the Court of Appeal. The time limit for considering applications is six hours, after its reception.

The results should be recorded in the protocol to which the applications are attached, as available. Moreover, the prosecutor has to inform the person against whom the covert investigative (search) actions were carried out and about the fact of their conduct within 12 months from the date of their completion.But the latest when the moment when the application was filed in court with an indictment.

The Code of Criminal Procedure of Ukraine established that evidence may be permissible only if it is obtained legally. Unscrupulous law enforcement officers can unofficially start listening to people who interested them. And based on the results of such preliminary activities, they can make a decision, get the sanction of the investigating judge and continue to document the person officially or wait with the received information.


And what about listening to top officials and politicians?

The Criminal Procedure Code of Ukraine provides that permission to conduct covert investigative (search) actions is provided by Justices of Appeal. The sanction is given by the Judge of Appeal of the most territorially approximate region in order to avoid leaks if the application for conducting the investigative (search) actions is under consideration for judges, court employees or law enforcement officials.

The procedure for obtaining permission to conduct the covert investigative (search) actions regarding the deputies of Ukraine is the same as the general one. Except that the Attorney General must approve the application.

The procedure for obtaining permission to conduct the covert investigative (search) actions regarding the deputies of Ukraine is the same as the general one. Except that the Attorney General must approve the application.

The fact that since the presidency of Leonid Kuchma, listening devices, in addition to the workplace of presidents and the government, were found in high offices of security agencies and the judiciary, indicates the absence of serious barriers to listening to any person. Thus, you should always consider that your conversations with this or that interlocutor can be heard.

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