Proportionality of Intervention and the Balance of Public and Private Interests in Covert Evidence Collection in Criminal Proceedings
Proportionality of Intervention and the Balance of Public and Private Interests in Covert Evidence Collection in Criminal Proceedings

Summary/Abstract: The Article addresses problematic issues of proportionality of interference and the balance of public and private interests during covert evidence collection in criminal proceedings. The relevance of this topic is driven by the fact that, in the context of contemporary challenges related to security, digitalization, and globalization, covert investigative (search) actions should be considered indicators of adherence to the balance of public and private interests during criminal procedural activities. The aim of the Article is to provide a scholarly understanding of ensuring proportionality of interference and balance of public and private interests in criminal proceedings during covert evidence collection. The following scientific methods were used to achieve this purpose and accomplish the related objectives: dialectical, formal-legal, formal-logical, analysis and synthesis, and inductive. The empirical basis of the research comprises the most relevant and significant positions of the cassation court concerning covert evidence collection, which are perceived as guidelines and, consequently, as indicators of trends in the national law enforcement system. The authors examine the Supreme Court’s positions on specific procedural issues related to interference with private communication, identifying a trend toward emphasizing public interest. Analyzing critical decisions of the cassation court on the appropriate limits of procedural confidentiality allows the authors to conclude that protecting the confidentiality (secrecy) of the technical component in covert investigative (search) actions, though justified for specialized technical means, cannot be considered proportionate concerning the carriers of obtained results. The procedural analysis of issues related to crime provocation highlights the cassation court’s practice of using a comprehensive approach to consider the circumstances of covert operations and the diligence and fairness of the prosecution’s procedural conduct within the adversarial court process, which is actively used to assess the presence or absence of elements indicating crime provocation. Based on the analyzed material, the study identifies procedurally significant trends and prospective directions for further research.

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