Venice Commission - Report on a rule of law and human rights compliant regulation of spyware
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1. Does your legal framework allow for the use of spyware as a tool of targeted surveillance either in criminal or intelligence investigations or is there an explicit prohibition on the use of spyware? If so, how does your domestic legal framework define spyware?
The legislation of Ukraine in the field of criminal investigations or intelligence investigations does not single out spyware as a tool of targeted surveillance or as a means of collecting information.
2. Are there specific rules (covering notably the scope ratione materiae, temporis and personae) in place or do the general rules on targeted surveillance (interception of communications) apply (could you please provide us with such specific or general rules)?
The Criminal Procedure Code of Ukraine regulates the procedure for conducting Collecting information from electronic communication networks [Chapter 21. Covert investigative (detective) actions], which include:
3. What kind of data, if any, could be collected with spyware?
The joint Order of the General Prosecutor's Office of Ukraine, the Ministry of Internal Affairs of Ukraine, the Security Service of Ukraine, the Administration of the State Border Guard Service of Ukraine, the Ministry of Finance of Ukraine, the Ministry of Justice of Ukraine (dated 16.11.2012) “On the approval of the Instructions on the organization of Covert investigative (detective) actions and the use of their results in criminal proceedings":
4. Has there been any official evaluation of the need for, or added value of, spyware?
The officials didn't provide the evaluation of the need of spyware.
5.Who authorises/approves measures of targeted surveillance in criminal and intelligence investigations (judiciary, executive, expert bodies, security services)?
According to Article 246 of the Criminal Procedural Code of Ukraine "Grounds for covert investigative (detective) actions" investigating judge in cases specified by this Code, upon request of the public prosecutor or upon request of the investigator approved by public prosecutor, shall take decision on the conducting of covert investigative (detective) actions.
6. What are the national oversight mechanisms in place in your country for the activities of the security services (are they judicial, parliamentary, executive, or expert)? Do these bodies have (binding) remedial powers?
1) Law of Ukraine “On Criminal Intelligence Operation activities” establishes the following:
7. Does a post-surveillance notification mechanism exist? Are there any other remedies available for individual targeted by measures of targeted surveillance?
1) Criminal code of Ukraine
Ukraine
- Collecting information from electronic communication networks (Article 263)
- Collecting information from electronic information systems (Article 264).
According to Article 246 of the Criminal Procedure Code of Ukraine "Grounds for covert investigative (detective) actions" covert investigative (detective) actions shall mean a type of investigative (detective) actions the information on the fact and methods in which they are conducted may not be disclosed, except as prescribed by this Code (part one).
This article of the Code also states that covert investigative (detective) actions shall be conducted where information on criminal offence and its perpetrator cannot be obtained otherwise. Covert investigative (detective) actions specified, in particular, in Articles 263, 264 shall be conducted exclusively in criminal proceedings in respect of grave or special grave crimes. An investigator
conducting a pre-trial investigation of a criminal offence or, on his behalf, authorised criminal intelligence units of the National Police, security agencies, the National Anti-Corruption Bureau of Ukraine, the State Bureau of Investigations, bodies, penitentiary institutions and pre-trial detention centres of the State Penitentiary Service of Ukraine, bodies of the State Border Guard Service of Ukraine. Upon investigator’s or public prosecutor’s decision, other persons may also be engaged in the conducting of covert investigative (detective) actions.
Other relevant articles of the Code are as follows:
Article 258. General provisions related to interference in private communication
1. Nobody may be subjected to interference in private communication without the investigating judge’s ruling.
2. Public prosecutor or investigator upon approval of the public prosecutor shall be required to apply to the investigating judge for permission to interfere in private communication as prescribed by Articles 246, 248, 249 of this Code, where any investigative (detective) action implies such interference.
3. Communication shall mean the transmission of information in any form from one person to another directly or through any means of communication. Communication shall be deemed private insofar as information is transmitted and stored under such physical or legal conditions where participants to the communication can expect that such information is protected from interference on the part of others.
4. Interference in private communication shall imply access to the contents of communication under conditions when participants to the communication can reasonably expect that their communication is private. The following shall be types of interference in private communication:
1) audio, video monitoring of an individual;
2) arrest, examination and seizure of correspondence;
3) collecting information from electronic communication networks;
4) collecting information from electronic information systems.
5. Interference in private communication of a defence counsel, between clergyman and the suspect, accused, convict or acquitted shall be prohibited.
Article 263. Collecting information from electronic communication networks
1. Collecting information from electronic communication networks (a body of technical means of electronic communications and facilities intended for the provision of electronic communication services) shall mean a variety of interference in private communication conducted without the knowledge of individuals who use telecommunication facility for transmitting information based on the ruling rendered by the investigating judge, where there is possibility to substantiate the facts during its conducting, which have the importance for criminal proceedings.
2. Investigating judge’s ruling to authorise interference in private communication in such a case shall additionally state identification characteristics which will allow to uniquely identify the subscriber under surveillance, electronic communication network, and terminal equipment which can be used for interference in private communication.
3. Collecting information electronic communication networks shall consist in conducting with the use of appropriate technical means of surveillance, selection and recording of the content of information transmitted by a person and important for pre-trial investigation, as well as receiving, converting and recording various types of signals transmitted by communication channels.
4. Collecting information from electronic communication networks shall be effected by authorised units of National Police, National Anti-Corruption Bureau of Ukraine, and State Bureau of Investigation and Security. General managers and employees of electronic communication networks’ operators shall facilitate conducting the actions on collecting information from electronic communication networks, taking required measures in order to not disclose the fact of conducting such actions and the information obtained, and preserve it unchanged.
The following is defined in the joint Order of the General Prosecutor's Office of Ukraine, the Ministry of Internal Affairs of Ukraine, the Security Service of Ukraine, the Administration of the State Border Guard Service of Ukraine, the Ministry of Finance of Ukraine, the Ministry of Justice of Ukraine (dated 16.11.2012) “On the approval of the Instructions on the organization of Covert
investigative (detective) actions and the use of their results in criminal proceedings":
Collecting information from electronic communication networks consists of:
- control over telephone conversations, which consists of covert surveillance, selecting and recording telephone conversations, other information and signals (SMS, MMS, fax, modem, etc.) using special technical means, including those installed in electronic communication networks, which are transmitted by the telephone communication channel, which is controlled;
- collecting information from electronic communication networks, which consists of covert receiving, transforming and fixing with the use of technical means, including various types of signals installed in electronic communication networks, transmitted by communication channels of the Internet and other networks data transmission, which are controlled.
According to Article 264 of the Criminal Procedure Code of Ukraine "Collecting information from electronic information systems" search, detection, and recording information stored in an electronic information system or any part thereof, access to the information system or any part thereof, as well as obtaining such information without knowledge of its owner, holder or keeper
may be made based on the ruling rendered by the investigating judge, where there it is known that such information system or any part thereof contains information of importance for a specific pre-trial investigation. Obtaining information from electronic information systems or parts thereof the access to which is not restricted by the system’s owner, holder or keeper, or is not related to circumventing a system of logical security shall not require permission of the investigating judge.
Investigating judge’s ruling to authorise interference in private communication in such a case shall additionally state identification characteristics of the electronic information system which can be used for interference in private communication.
The following is defined in the joint Order of the General Prosecutor's Office of Ukraine, the Ministry of Internal Affairs of Ukraine, the Security Service of Ukraine, the Administration of the State Border Guard Service of Ukraine, the Ministry of Finance of Ukraine, the Ministry of Justice of Ukraine (dated 16.11.2012) “On the approval of the Instructions on the organization of Covert
investigative (detective) actions and the use of their results in criminal proceedings":
- сollecting information from electronic information systems without knowledge of its owner, holder or keeper (Article 264 of the Criminal Procedure Code of Ukraine) consists in obtaining nformation (including with the use of technical equipment) contained in electronic computing machines (computers), automated systems, computer network.
The Criminal Procedure Code of Ukraine establishes the requirements for conducting investigative (detective) actions (Article 223.8), according to which investigative (detective) actions shall not be conducted upon expiration of time limits of pre-trial investigation, except in cases stipulated by part 3 of Article 333 hereof. Any investigative (detective) actions or covert investigative (detective) actions conducted after expiry of the period of the pre-trial investigation shall be void and the resulting evidence shall be deemed inadmissible.
As for intelligence investigations, the Decree of the President of Ukraine "On streamlining the production, acquisition and use of technical means for collecting information from communication channels" (April 13, 2001) establishes that the Security Service of Ukraine exercises the implementation of the state policy on the development, production, implementation and acquisition special technical means for collecting information from communication channels, other means of covertly obtaining information and ensuring state control and coordination of the activities of state bodies.
The Order of the Security Service of Ukraine dated December 23, 2020 "On approval of the Сompilation of Іnformation Constituting a state secret" defines the special technical means as technical means, equipment, facilities, instruments, devices, software, drugs and other products, intended (specially developed , manufactured, programmed or adapted) to obtain information covertly. Information, in particular, about the nomenclature, actual availability, financing, the need for provision of technical means of intelligence, special technical means or special equipment is a state secret; information that makes it possible to identify a person, place or thing, in relation to which an covert investigative (detective) action is being conducted or is planned, the disclosure of which poses a threat to national interests and security.
In accordance with the Law of Ukraine "On Intelligence", intelligence agencies (under Article 5 of this law they are: the Foreign Intelligence Service of Ukraine; the intelligence agency of the Ministry of Defense of Ukraine; the intelligence agency of the central executive body that implements state policy in the field of state border protection) shall exercise powers, in particular,
to create and use information, information systems, telecommunication systems and database system to ensure intelligence activities; to create, purchase, program, modernize, adapt and use technical means of intelligence, special technical means (Article 12).
The Order of the Security Service of Ukraine dated December 23, 2020 " On approval of the Сompilation of Іnformation Сonstituting a state secret" defines the concept of technical intelligence as unauthorized acquisition of secret information using technical means and its analysis. Means of technical intelligence are, in particular, devices, machines and equipment or
technical systems made with their use, as well as tools and substances intended for: obtaining intelligence information from telecommunications channels, information systems and certain technical means of information processing; covert surveillance of objects of interest to intelligence agencies as a source of intelligence information.
In accordance with the first part of Article 15 of the Law of Ukraine "On Intelligence" "Intelligence measures carried out on the basis of a court decision", intelligence agencies may conduct certain intelligence measures in relation to a person, place or thing located on the territory of Ukraine, which consist, in particular, in:
Collecting information from electronic information systems by selecting and recording the content of relevant information or data that a person transmit or receive;
Collecting information from electronic information systems by searching, selecting and fixing relevant information or data contained in the electronic information system or in the part of it, without knowledge of its owner, holder or keeper.
Such intelligence activities are carried out under conditions they are directly related to the implementation of intelligence activities outside Ukraine or are aimed at obtaining intelligence information originating outside Ukraine, and only on the basis of a court decision.
An intelligence agency may start conducting intelligence activities, provided for in the first part of Article 15, in relation to a person who is in the territory of Ukraine on legal grounds and who was identified during the intelligence activity based on search criteria, solely on the basis of a court decision. In such a case, under the decision of the head of the intelligence agency, the conduct of an intelligence measure, based on the search criteria, may be extended for a period until a court decision is obtained, but not more than 72 hours from the moment of identification of the person.
Article 46 of the Law of Ukraine "On Intelligence" «Information on intelligence agencies and intelligence activities» establishes, in particular, the following:
1. Information on intelligence agencies and intelligence activities is the information on intelligence agencies, information received or created in connection with the execise of tasks and functions by intelligence agencies, provided by this Law.
Access to information on intelligence agencies and intelligence activities may be limited in accordance with the procedure established by law.
2. Information on intelligence activities, intelligence methods, intelligence forces and means, intelligence information, information on providing consumers with intelligence information, on the interaction of intelligence agencies with other subjects of the intelligence community, with state bodies, local self-government bodies, enterprises, institutions, organizations, competent bodies of foreign states, international organizations, belongs to secret information and is subject to classification as an intelligence secret and/or state secret in accordance with the procedure established by law.
Information belonging to intelligence secret is not subject to disclosure and submission to requests in accordance with the Law of Ukraine "On Access to Public Information", as well as to other appeals and requests, except for cases expressly defined by law.
3. Іndividual information or data belonging to intelligence secrets may be transferred or made public under head of the intelligence agency decision in order to carry out the functions assigned to the intelligence agencies, to ensure interaction with other subjects of the intelligence community, as well as to ensure citizens' access to information about the activities of intelligence agencies.
Information or data belonging to an intelligence secret, transferred by an intelligence agency to another subject, may be made public or transferred by such a subject to third parties only with the written permission of the head of the relevant intelligence agency.
4. Requirements for classification, organization and provision of the regime of information belonging to intelligence secrets are determined by the President of Ukraine, including on the basis of proposals of the coordination body on intelligence.
It is also worth noting that in the Law of Ukraine «On the Basic Principles of Cybersecurity» in
Ukraine, October 5, 2017, contains the concept of cyber intelligence – actions carried out by
intelligence agencies in cyberspace or with its use and the concept of cyberespionage – espionage
that takes place in cyberspace or with its use.
According to Article 8 of the Law "National cybersecurity system" the national cybersecurity system is a set of cybersecurity subjects and interrelated measures of a political, scientific and technical, informational, educational, organizational, legal, intelligence, counterintelligence, defense, engineering and technical nature, as well as measures for the cryptographic and technical protection of national information resources and the cyber defense of critical information infrastructure facilities.
The main entities of the national cybersecurity system are the State Service for Special Communication and Information Protection of Ukraine, the National Police of Ukraine, the Security Service of Ukraine, the Ministry of Defense of Ukraine and the General Staff of the Armed Forces of Ukraine, intelligence agencies and the National Bank of Ukraine, which, under the Constitution and the laws of Ukraine, perform the following main tasks in the prescribed manner. The Security Service of Ukraine prevents, detects, suppresses and solves criminal offenses against peace and security of humanity that are committed in cyberspace; carries out counterintelligence and criminal intelligence operation activities aimed at combating cyberterrorism and cyber espionage, and covertly checks the readiness of critical infrastructure facilities for possible cyberattacks and cyber incidents; counteracts cybercrime, the consequences of which may threaten the vital interests of the state; investigates cyber incidents and cyberattacks against state electronic information resources and information, the requirement for protection of which is established by law, and critical information infrastructure; provides a response to cyber incidents in the field of national security.
The Criminal Procedural Code of Ukraine contains provisions (Article 482-2) that regulate the. Specific aspects of the procedure for prosecuting, detaining, choosing a measure of restraint, conducting investigative (detective) and covert investigative (detective) actions against a Member of Parliament of Ukraine, in particular:
1. Information that may testify to the commission of a criminal offence by a Member of Parliament of Ukraine shall be entered into the Unified Register of Pre-trial Investigations by the Prosecutor General (Acting Prosecutor General) in accordance with the procedure established by this Code.
2. Request for permission to apprehend, choose a measure of restraint in the form of detention or house arrest, search, violation of the secrecy of correspondence, telephone conversations, telegraph and other correspondence, as well as the application of other measures, including covert investigative (detective) actions, which in accordance with the law restrict the rights and freedoms of a Member of Parliament of Ukraine, the consideration of which is attributed to the powers of the investigating judge, shall be approved by the Prosecutor General (Acting Prosecutor General).
Such motions, in addition to the use of covert investigative (detective) actions, shall be considered by an investigating judge within whose territorial jurisdiction the pre-trial investigation agency is located, and in the criminal proceedings for crimes within the jurisdiction of the High Anti-Corruption Court they shall be considered by an investigating judge of the High Anti-Corruption
Court.
Such requests shall be considered with the obligatory participation of a Member of Parliament of Ukraine. The investigating judge shall inform a Member of Parliament of Ukraine in advance about the consideration of the said request, except for the request for the use of covert investigative (detective) actions or search.
The body or officials who detained the Member of Parliament of Ukraine, informed him/her of the suspicion or applied a measure of restraint against him/her, or conducted other investigative actions (except for search and covert investigative (detective) actions), shall immediately, but not later than 24 hours from the moment of committing such actions, inform the Chairman of the Verkhovna Rada of Ukraine.
According to the provisions of the Criminal Procedure Code of Ukraine, covert investigative (detective) actions are carried out, depending on their type and specific purpose, against a suspect or another person, if only as a result of their conduct it is possible to obtain information about the crime and the person who committed it, or the circumstances , which are important for the pre-
trial investigation (about events, things and documents that are of significant importance for the pre-trial investigation) (articles 246, 253, 261 of the Criminal Procedure Code of Ukraine).
The investigating judge shall be provided with information, depending on the type of covert investigative (detective) action, obtained during the pre-trial investigation, confirming the impossibility of obtaining information about the crime or the person who committed it in another way.
Decision to conduct a covert investigative (detective) action shall state the time limit for its conduct. Time limit for the conducting of a covert investigative (detective) active may be extended by investigating judge, if the covert investigative (detective) action is conducted by his decision, as prescribed by Article 249 of the present Code.
Other relevant articles of the Criminal Procedural Code of Ukraine are as follows:
Article 247. Investigating judge who considers requests to conduct covert investigative (detective) actions
1. Consideration of motions referred to the powers of an investigating judge in accordance with the provisions of this Chapter shall be conducted by an investigating judge of the appellate court within whose territorial jurisdiction the pre-trial investigation agency is located, and in criminal proceedings concerning criminal offences it shall be conducted by the investigating judge of the
High Anti-Corruption Court.
2. Consideration of requests for permission to conduct covert investigative (search) actions against judges, court and law enforcement officers and/or in the premises of judicial and law enforcement agencies, which in accordance with the provisions of this Chapter is referred to the powers of an investigating judge, the court of appeal outside the territorial jurisdiction of the pre-trial investigation body conducting the pre-trial investigation, and in criminal proceedings concerning criminal offences within the jurisdiction of the High Anti-Corruption Court, it shall be conducted by an investigating judge of the High Anti-Corruption Court (except as provided for by paragraph 7, part 1 of Article 34 hereof).
In this case, the investigator or public prosecutor shall apply for permission to conduct covert investigative (detective) actions to the investigating judge of the respective appellate court closest to the appellate court within whose territorial jurisdiction the pre-trial investigation is conducted, or the High Anti-Corruption Court and and in the case provided for by paragraph 7, part 1 of Article 34 hereof, he shall appeal to the appellate court specified in paragraph 7, part 1 of Article 34 hereof).
Article 248. Examination of the request to obtain permission for the conducting of a covert investigative (detective) action
1. Investigating judge shall consider the request to obtain permission for the conducting of a covert investigative (detective) action within six hours after he has received such request. The request shall be considered with participation of the person who has filed the request.
2. The motion shall state:
1) name and registration number of the criminal proceeding concerned;
2) brief description of circumstances of the criminal offence in connection with which the motion is filed;
3) legal qualification of the crime with indication of Article (part of Article) of the Criminal Code of Ukraine;
4) information on the individual (individuals), place or object in whose respect it is necessary to conduct covert investigative (detective) action;
5) circumstances that provide grounds for suspecting the individual of committing the crime;
6) type of covert investigative (detective) action to be conducted, and substantiation of the time limits for the conducting thereof;
7) substantiation of impossibility to obtain otherwise knowledge on crime and the individual who has committed it;
8) information, depending on the type of covert investigative (detective) action, on identification signs, which will allow to uniquely identify the subscriber under surveillance, electronic communication networks, and terminal equipment etc.;
9) substantiation of the possibility to obtain in the course of conducting of covert investigative (detective) action of evidence which, alone or in concurrence with other evidence, may be significantly important for the clarification of the circumstances of crime or the identification of perpetrators thereof.
Investigator’s or public prosecutor’s request shall be attached with an extract from the Unified Register of Pre-Trial Investigations pertaining to the criminal proceedings within the framework of which the request is filed.
3. Investigating judge shall pass a ruling to allow conducting the requested covert investigative (detective) action where the public prosecutor proves that sufficient grounds exist that:
1) a crime of respective gravity has been committed;
2) in the course of covert investigative (detective) action, information is likely to be obtained, which alone or in totality with other evidence may be of essential importance for establishing circumstances of the crime or identification of perpetrators thereof.
4. Investigating judge’s ruling to allow conducting a covert investigative (detective) action shall meet general requirements for judicial decisions as prescribed by this Code, as well as contain information on:
1) public prosecutor or investigator who has applied for permission;
2) criminal offence which is subject of pre-trial investigation within which the ruling is passed;
3) person (persons) place or object targeted by the requested covert investigative (detective) action;
4) type of the covert investigative (detective) action and information depending on the type of investigative (detective) action, on identification signs, which will allow to uniquely identify the subscriber under surveillance, electronic communication networks, and terminal equipment, etc.;
5) time in which the ruling is valid.
5. The ruling rendered by investigating judge to give no permission to conduct covert investigative
(detective) action shall not impede filing a new motion to obtain such permit.
Article 249. Time in which the investigating judge’s ruling to allow conducting a covert investigative
(detective) action is valid
1. Time in which the investigating judge’s ruling to allow conducting a covert investigative
(detective) action may not be valid for more than two months
2. Where investigator or public prosecutor finds it necessary to extend conducting a covert
investigative (detective) action, the investigator upon approval of public prosecutor, or public
prosecutor shall have the right to apply to the investigating judge for making a new ruling
under Article 248 hereof.
3. In addition to information specified in Article 248 of this Code, investigator or public prosecutor
shall provide additional information which provides grounds for extending the conducting of covert
investigative (detective) action.
4. The aggregate duration of a covert investigative (detective) action in one criminal proceeding
given permission of the investigating judge shall not exceed the maximum duration of pre-trial
investigation as set forth in Article 219 hereof. In case where such investigative (detective) action
is conducted to locate an individual hiding from the pre-trial investigation authority, investigating
judge or court or being searched, it shall last until the wanted individual is located.
5. Public prosecutor shall take decision to discontinue conducting of a covert investigative
(detective) action where such action is no longer needed.
Article 250. Conducting a covert investigative (detective) action before investigating judge adopts a ruling
1. In the exceptional and urgent cases related to saving human life and preventing the commission of grave or special grave crime as provided for by Sections I, II, VI, VII (Articles 201 and 209), IX, XIII, XIV, XV, XVII of the Special Part of the Criminal Code of Ukraine, a covert investigative (detective) action may be initiated before investigating judge adopts a ruling in the cases prescribed by this Code, upon decision of investigator approved by the public prosecutor, or upon decision of the public prosecutor. In such a case, public prosecutor shall immediately after the initiation of such covert investigative (detective) action apply to investigating judge with an appropriate request.
2. Investigating judge shall consider this request in accordance with the requirements of Article 248 hereof.
3. Conducting any activities related to rendering a covert investigative (detective) action shall be immediately discontinued where the investigating judge passes a ruling denying permission to conduct the covert investigative (detective) action concerned. Information obtained as a result of conducting such covert investigative (detective) action shall be subject to destruction as prescribed by Article 255 hereof.
Article 9. Guarantees of legality during the implementation of criminal intelligence operation activities
Violation of the human rights and freedoms and legal entities is not allowed during the implementation of investigative activities. Single restrictions of these rights and freedoms are of an exceptional and temporary nature and can be applied only by the decision of the investigating judge for the purpose of detecting, preventing or to stop grave crimes or especially grave crimes and in cases provided for by the legislation of Ukraine, for the purpose of protecting the rights and freedoms of other persons, public safety .
In cases of violation of the human rights and freedoms or legal entities in the process of criminal intelligence operation activities, as well as in the event that the person against whom criminal intelligence operation measures were carried out was not confirmed as involved in the criminal offense, the Security Service of Ukraine, the State Bureau of Investigation, the National Police , the central body of executive power that implements state policy in the sphere of state border protection, the Office of State Security of Ukraine, the Bureau of Economic Security of Ukraine, the central body of executive power that ensures the formation and implementation of state policy in the sphere of execution of criminal punishments and probation, the intelligence body of the Ministry of Defense of Ukraine, the intelligence body of the central executive body that implements state policy in the sphere of state border protection, the Foreign Intelligence Service of Ukraine, the National Anti-Corruption Bureau of Ukraine are obliged to restore the violated rights immediately and compensate in full the material and moral damages caused.
Citizens of Ukraine and other persons have the right, in accordance with the procedure established by law, to receive from the criminal intelligence operation bodies a written explanation regarding the restriction of their rights and freedoms and to appeal these actions.
It is forbidden to transmit and disclose information about security measures and persons taken under protection, or such information that may harm the investigation or the interests of a person or the security of Ukraine. It is prohibited to make public or provide collected information, as well as information regarding the conduct or non-conduct of criminal intelligence operation activity in relation to a certain person until a decision is made based on the results of such activity. The issue of publicizing or providing such information after a decision is made is regulated by law.
Information obtained as a result of criminal intelligence operation activities related to the personal life, honor, and dignity of a person, if it does not contain information about the commited actions prohibited by law, is not subject to storage and must be destroyed. Information obtained as a result of criminal intelligence operation activities, regarding preparation for terrorist acts or their commission by individuals and groups, is stored for up to 5 years.
Criminal intelligence operation measures related to the temporary restriction of human rights are carried out in order to prevent grave crimes or especially grave crimes, also for detection and termination of them, the search for persons who are evading criminal punishment or who have disappeared, also to protect life, health, housing and property of court employees and law enforcement agencies and persons participating in criminal proceedings, also for termination of intelligence and subversive activities against Ukraine.
2) Law of Ukraine "On National Security of Ukraine"
Section III
DEMOCRATIC CIVIL CONTROL
Article 4. Principles of democratic civil control
1. Within the limits of the powers granted in accordance with the Constitution of Ukraine, the security and defense sector is subject to democratic civil control (hereinafter referred to as civil control).
The system of civil control consists of control carried out by the President of Ukraine; control carried out by the Verkhovna Rada of Ukraine; control carried out by the National Security and Defense Council of Ukraine; control carried out by the Cabinet of Ministers of Ukraine, executive authorities and local self-government bodies; judicial control; public supervision.
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Article 11. Responsibility for violation of the legislation on national security of Ukraine
1. Officials guilty of non-fulfillment or violation of the legislation on the national security of Ukraine shall bear responsibility in accordance with the law.
2. Citizens who believe that their rights, freedoms, or legitimate interests have been violated by the decisions, actions, or inactivity of members of the security and defense sector or their officials have the right to apply to the court, the Commissioner for Human Rights of the Verkhovna Rada of Ukraine, or use any other mechanisms for the protection of rights and freedoms provided for by the legislation of Ukraine.
3. Control of compliance with legislation during civil control is carried out in accordance with the procedure determined by the Constitution and laws of Ukraine.
3) Law of Ukraine “On the Security Service of Ukraine”
Section VI. CONTROL AND SUPERVISION OF THE ACTIVITIES OF THE SECURITY SERVICE OF UKRAINE
Article 31. Accountability of the Security Service of Ukraine
Permanent control over the activities of the Security Service of Ukraine and its compliance with legislation is carried out by the Verkhovna Rada of Ukraine.
The head of the Security Service of Ukraine annually, by February 1, submits a report on the activities of the Security Service of Ukraine to the Verkhovna Rada of Ukraine.
Article 32. Control of the President of Ukraine over the activities of the Security Service of Ukraine
Control over the activities of the Security Service of Ukraine is carried out by the President of Ukraine and state bodies authorized by him.
Permanent control is carried out by officials specially appointed by the President of Ukraine over the observance of the constitutional rights of citizens and legislation during criminal intelligence operation activities and activities in the field of protection of state secrets of bodies and units of the Security Service of Ukraine, as well as control over the compliance of the provisions, orders, decrees, instructions issued by the Security Service of Ukraine with the Constitution and laws of Ukraine. The powers of these officials and the legal guarantees of their activities are determined by the Regulation, which the President of Ukraine shall approve.
The Security Service of Ukraine regularly informs the President of Ukraine, members of the National Security Council of Ukraine and officials specially appointed by the President of Ukraine about the main issues of its activity, about cases of violations of legislation, and also submits other necessary information at their request.
The head of the Security Service of Ukraine annually submits a written report on the activities of the Security Service of Ukraine to the President of Ukraine.
The head of the Security Service of Ukraine bears personal responsibility for the timeliness, objectivity and completeness of the submitted information.
4) Law of Ukraine “On the Foreign Intelligence Service”
Article 1. Legal status of the Foreign Intelligence Service of Ukraine
1. The Foreign Intelligence Service of Ukraine is an intelligence body of Ukraine that functions as a separate state body, is not part of the system of executive authorities and carries out its activities under the guidance of the President of Ukraine and democratic civilian control in accordance with the Law of Ukraine "On Intelligence".
5) Law of Ukraine "On Intelligence"
Section VIII. FEATURES OF DEMOCRATIC CIVIL CONTROL OVER INTELLIGENCE
Article 51. Principles of implementation of democratic civilian control over intelligence
1. Democratic civil control over intelligence is carried out in accordance with the Law of Ukraine "On National Security of Ukraine" taking into account the specifics defined by this Law.
2. The procedure for visiting the facilities of intelligence agencies and providing access to information containing intelligence secrets during democratic civil control is determined by joint acts of intelligence agencies and relevant control subjects.
3. During the implementation of democratic civil control, documents or information about persons involved or those who were involved in confidential cooperation with intelligence agencies, about employees under cover, as well as about the methods, forces and means of intelligence involved or were involved during carrying out intelligence activities, as well as planning, organization, financing and logistical support of specific intelligence activities before their full completion are not provided.
4. Information about intelligence agencies and intelligence activities obtained during the execution of democratic civil control shall be processed, stored, transferred or made public in compliance with the requirements provided for in Article 46 of this Law [see above]. The actions of persons who have gained access to such information should not create a threat of its disclosure.
Article 52. Particular aspects of control over intelligence by the President of Ukraine
1. The head of the intelligence body reports to the President of Ukraine on the execution of the tasks assigned to this body and, in accordance with the procedure established by the President of Ukraine, annually submits a report on the activities of the relevant intelligence body to the coordination body on intelligence.
2. On the basis of the report submitted by the head of the intelligence agency, the intelligence coordination body annually prepares an assessment of the intelligence agency's performance of the priority tasks assigned to it, the results of which it reports to the President of Ukraine.
3. In compliance with the requirements of Article 46 of this Law, the coordination body on intelligence publishes information on the directions and main results of the activities of intelligence agencies (White Book).
Article 53. Particular aspects of exercising parliamentary control over intelligence
1. Within the limits set by the Constitution of Ukraine and the laws of Ukraine, parliamentary control is ensured by the committee of the Verkhovna Rada of Ukraine, the subject of which is the issue of ensuring the control functions of the Verkhovna Rada of Ukraine, in particular, over the activities of special-purpose bodies that are entrusted with law enforcement functions, special-
purpose law enforcement bodies and intelligence agencies.
3. […] People's deputies of Ukraine receive the information specified in the second part of Article 46 of this Law exclusively in connection with the exercise of their powers in the committee of the Verkhovna Rada of Ukraine that is authorized to exercise control over special-purpose bodies that are entrusted with law enforcement functions, special-purpose law enforcement bodies and intelligence agencies.
Article 54. Particular aspects of public and judicial control over intelligence
1. Citizens of Ukraine participate in the implementation of democratic civil control in the manner determined by the Constitution of Ukraine and the laws of Ukraine, taking into account the requirements of Article 46 of this Law.
2. Information on the activities of intelligence agencies is published in the media and on the official websites of these agencies in the scope determined by the head of the relevant intelligence agency.
3. Decisions, actions or inactivity of the intelligence community subjects may be challenged in court in accordance with this Law.
For reference: The subjects of the intelligence community are:
1) coordination body on intelligence;
2) intelligence agencies defined by this Law;
3) Security Service of Ukraine;
4) other components of the security and defense sector determined by the National Security and Defense Council of Ukraine, which are involved by intelligence agencies in the execution of intelligence tasks and strengthening of the intelligence capabilities of the state (part two of Article 4 of this Law).
Article 253. Notifying individuals in whose respect covert investigative (detective) actions have been conducted
1. Individuals whose constitutional rights were temporarily restricted during conducting covert investigative (detective) actions, as well as the suspect, his/her defence counsel shall be informed about such restriction in written form by public prosecutor or, upon his instruction, by investigator.
2. Specific time of notification shall be chosen taking into account the presence or absence of possible risks for the attainment of the objective of pre-trial investigation, public security, life or health of individuals who are involved in the conduct of covert investigative (detective) actions.
Appropriate notification of the fact and findings of covert investigative (detective) actions shall be made within twelve months since the date of termination of such actions, but not later than an indictment has been produced to court.
Additional information:
Criminal code of Ukraine
Article 254. Measures to protect information obtained through covert investigative (detective) actions
1. Information on the fact and methods of the conducting of covert investigative (detective) actions, executors thereof, as well as information obtained as a result of the conduct thereof, may not be disclosed by individuals who took knowledge of such information by way of reviewing the materials as prescribed by Article 290 hereof.
2. Where records on the conduct of covert investigative (detective) actions contain information on private (personal or family) life of other persons, defence counsel and other individuals entitled to review such records shall be warned about criminal liability for disclosing information obtained in respect of other persons.
3. Making copies of records on conducting covert investigative (search) actions and appendices to them before making a decision on their declassification in the manner prescribed by law is not allowed.
Article 255. Measures to protect information, which is not used in criminal proceedings
1. Information, objects and documents obtained as a result of the conduct of covert investigative (detective) actions which, in public prosecutor’s opinion, are not necessary for subsequent pre-trial investigation, shall be destroyed immediately based on public prosecutor’s decision, except in cases specified in part 3 of this Article and Article 256 hereof.
2. The use of records referred to in part 1 of this Article for purposes not related to the criminal proceedings, or reviewing such records by the participants to criminal proceedings shall be prohibited.
3. Where the holder of any objects or documents obtained as a result of covert investigative (detective) actions may be interested in recovering them, the public prosecutor shall serve him/her a notice of such objects or documents being in the possession of the prosecutor and find out whether such person would want to recover them. When deciding on the admissibility of actions provided under this part as well as on the time of conducting such, the public prosecutor shall have regard to the need to secure the rights and legitimate interests of persons, as well as the necessity to prevent any prejudice to the criminal proceedings.
4. Destruction of information, objects and documents shall be conducted under supervision of public prosecutor.
5. Destruction of information, objects and documents obtained as a result of covert investigative (detective) actions shall not exempt the public prosecutor from his duty of notification under Article 253 of this Code.
Article 256. Using results of covert investigative (detective) actions as evidence
3. Whenever results of covert investigative (detective) actions are used for proving, persons in respect of whose actions or contacts such investigative action was conducted, may be interrogated. Such persons shall be notified of the conduct of covert investigative (detective) actions only in their respect, within a time limit specified in Article 253 of this Code, and the scope affecting their rights, freedoms, or interests.
Article 517. Protection of state secrets during criminal proceedings
7. Conducting a criminal proceeding that contains a state secret is not a reason to limit the rights of its participants, except for cases provided by law and conditioned by the need to ensure the protection of state secrets.
2) Law of Ukraine "On Intelligence"
Article 25. Observance of human rights and freedoms during intelligence activities
1. Confidential information about a person that became known to intelligence agencies during the performance of the tasks assigned to these agencies and the performance of functions defined by this Law shall not be disclosed, except in cases defined by law.
2. The persons specified in the first part of this article have the right to receive from the intelligence agency information on the restriction of their rights, freedoms and legitimate interests and to challenge the actions that led to to such a limitation, in accordance with the procedure established by law, taking into account the specifics defined by this Law and the legislation on the protection of state secrets.
The intelligence agency provides information regarding the restriction of the rights, freedoms and legitimate interests of a person only after the completion of the intelligence activities to which such restriction was related, and on the condition that the provision of this information will not pose a threat to the national security of Ukraine.