Venice Commission - Report on a rule of law and human rights compliant regulation of spyware

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5.Who authorises/approves measures of targeted surveillance in criminal and intelligence investigations (judiciary, executive, expert bodies, security services)?

Austria

Investigation measures and the conditions under which they are permissible are regulated in detail in the Code of Criminal Procedure (Sections 134 ff). According to Section 137 para. 1, the criminal investigation department (Kriminalpolizei) may carry out surveillance pursuant to Section 136 para. 1 lit. 1 leg.cit. on its own initiative. Information on master data pursuant to Section 135 para. 1a first case leg.cit. shall be provided at the requests of the criminal investigation department, the public prosecutor's office or the court. The public prosecutor's office shall order information on access data in accordance with Section 135 para. 1a second case and data retention for specific reasons in accordance with Section 135 para. 2b. The other investigative measures pursuant to Sections 135 to 136 leg.cit. (confiscation of letters, information on master data and access data, information on message transmission data, localisation of technical equipment, data retention for specific reasons and monitoring of messages pursuant to Section 135; repealed Section 135a leg.cit.; optical and acoustic surveillance of persons pursuant to Section 136) shall be ordered by the public prosecutor's office on the basis of a court authorisation, whereby entry into premises pursuant to (repealed) Section 135a para. 3 or Section 136 para. 2 leg.cit. requires a court authorisation in each case. Section 137 para. 3 regulates the duration of the measures, whereas Section 138 sets forth additional provisions on what the order and court authorisation must contain in the case of individual measures.

Belgium

Dans le cadre d’une enquête judiciaire, la pénétration dans un système informatique est ordonné doit être ordonné par un juge d’instruction, et en cas de flagrant délit par le procureur du Roi. Dans le cadre des activités des services de renseignement, les interceptions, prises de connaissance et enregistrement des communications sont encadrées par l’article 18 LR&S. La mise en œuvre d’une méthode exceptionnelle nécessite impérativement une décision motivée du dirigeant de service concerné et ce, après avis conforme de la « Commission administrative chargée de la surveillance des méthodes spécifiques et exceptionnelles de recueil de données des services de renseignement et de sécurité » (ci-après la commission BIM) (art. 18/9, § 2, 2eme alinéa). L’article 18/2, § 3 dispose en outre que la mise en œuvre de la méthode à l'égard d'un avocat, d'un médecin ou d'un journaliste, ou de leurs moyens de communication qu'ils utilisent à des fins professionnelles, ne peut être exécutée sans que, suivant le cas, le président de l'Ordre des barreaux, le président du Conseil national de l'Ordre des médecins ou le président de l'Association des journalistes professionnels, en soit averti au préalable. L’article 18/6, § 1, 2° alinéa dispose en outre que la méthode ne peut être mise en œuvre à l'égard des systèmes informatiques de l'autorité publique qu'avec l'accord préalable de l'autorité concernée.

Bosnia and Herzegovina

Investigative actions referred to in Article 116, paragraph 2 of the Criminal Procedure Act are determined by order the judge for the preliminary proceedings, at the reasoned proposal of the Prosecutor. In connection with this issue, see the previously cited Article 74 of the Law on Intelligence security agency.
Also, in accordance with Article 77 of the Law on the Intelligence and Security Agency, monitoring of places that do not have a public character, monitoring communications through telecommunications and other forms of electronic devices, as well as the search of property without the consent of the owner or person which temporarily occupies that property, can only be exercised in the cases for which it was obtained prior authorization from the President of the Court of Bosnia and Herzegovina or a judge of the Court of Bosnia and Herzegovina determined by the President of the Court of Bosnia and Herzegovina.
Article 78, para. 3, 4 and 5 of the Law on Intelligence and Security Agency provides for the following: The order cannot be approved for a period longer than 60 days. In justified cases, the judge may extend the validity of the order for additional periods of 30 days each if it is convinced that it is account still required. Exceptionally from the provisions of Article 77 of this Law and the previous paragraph of this Article, the use of these the measure can be approved by the Director General with the consent of the Chairman of the Council of Ministers Bosnia and Herzegovina, if the delay would cause irreparable damage to the security of Bosnia and Herzegovina Herzegovina. After approving the use of those measures, the Director General must immediately notify the judge, who takes appropriate action to confirm approval or suspend collection information, in accordance with this law. However, by Decision of the Constitutional Court of Bosnia and Herzegovina No. U-21/16 of June 1, 2017. it was established that Article 78, para. 3, 4 and 5 is not in accordance with the Constitution of Bosnia and Herzegovina and Article 8. European conventions. The Constitutional Court concluded that the provisions of Article 78, para. 3, 4 and 5 opposed provisions of Article I/2. of the Constitution of Bosnia and Herzegovina in connection with Article II/3.f) of the Constitution of Bosnia Herzegovina and Article 8 of the European Convention because it is not clear when extending the validity of the order prescribed scope of discretion granted to the President of the Court of Bosnia and Herzegovina, i.e. the judge authorized by him, given that his discretion is manifested in the form of unlimited powers when interprets the vague legal terms "in justified cases" and "when he is convinced that the order and still needed" and when the maximum duration of these measures solely depends on discretion decisions of the president of the Court of Bosnia and Herzegovina, that is, the judge authorized by him so that they do not guarantee an individual appropriate protection against arbitrary interference with constitutional rights. Disputed provisions also do not ensure that monitoring and search measures will not be introduced accidentally, irregularly or without proper and adequate consideration. In relation to the introduction of secret collection measures data, that is, monitoring and search measures, the Constitutional Court pointed out that the legislator did not provided for the prior consent of the judge, but provided for the prior obtaining of consent Chairman of the Council of Ministers of Bosnia and Herzegovina. The Constitutional Court reiterated that effective control and from by a non-judicial body may be in accordance with the Convention provided that such a body sufficiently independent from the executive. In the specific case, as emphasized by the Constitutional Court the chairman of the Council of Ministers of Bosnia and Herzegovina is the executive power. Furthermore, the legislator is provided that after approving the use of those measures, the Director General must immediately notify the judge who takes appropriate action to confirm the approval or suspend it collection of information in accordance with this law. The Constitutional Court found that it could be interpreted that the corresponding actions from the disputed provision are the same actions that he undertakes the judge when he approves the order (verifies the fulfillment of the conditions prescribed by the Law). However, the legislator did not prescribe that the general director send a written request to the judge (who in within the meaning of the law, it has a prescribed content), nor did it prescribe within which period the judge must either approve or suspend the application of these measures. Since there is no deadline, monitoring and search measures continue indefinitely adequate consideration of justification until the judge "takes appropriate action" to confirm approval or stop the collection of information. The Constitutional Court concluded that contested provisions according to which, in cases where there is an additional "stronger" danger to security of Bosnia and Herzegovina, the application of monitoring and search measures can be approved by the General director after obtaining the consent of the chairman of the Council of Ministers and according to which the general director, after approving the application of these measures, must inform the judge who takes "appropriate action" to confirm authorization or stop collection information does not ensure that monitoring and search measures will not be introduced without proper and adequate consideration. In this case, the Constitutional Court issued a Decision on non-execution in which it determined that the Parliamentary Assembly of Bosnia and Herzegovina did not implement the decision number U-21/16 of June 1, 2017 and determined method of execution. Namely, until the parliamentary assembly executes this decision of the provision Article 78, para. 3, 4 and 5 of the Law on the Intelligence and Security Agency of Bosnia and Herzegovina ("Official Gazette of BiH" no. 12/04, 20/04, 56/06, 32/07, 50/08 and 12/09) will be applied in in accordance with the aforementioned decision, standards from the Constitution of Bosnia and Herzegovina and the European Constitution convention for the protection of human rights and fundamental freedoms and the practice of the Constitutional Court of Bosnia and Herzegovina and the European Court of Human Rights.

Bulgaria

In the case of Bulgaria, it is up to the judicial authorities to manage authorizations. Bulgaria’s legal framework aligns with general targeted surveillance laws, applying to both criminal and intelligence investigations. Any use of surveillance technology requires judicial approval, which acts as a prior or post-action check on its application. Unauthorized surveillance is punishable under the Criminal Code, with penalties ranging from one to eight years in prison depending on the severity of the misuse.
Spyware use in national security is regulated under acts like the State Agency of National Security Act and the Special Intelligence Means Act. These laws allow intelligence officers to surveil individuals and gather intelligence, but only with judicial authorization in serious cases like terrorism and organized crime.

Canada

In both the criminal law and intelligence contexts, the courts authorize the use of targeted surveillance.

Crotia

Article 332 of the Criminal Procedure Act stipulates that in order to conduct special evidence-collecting measures during preliminary criminal investigations, it is necessary to obtain a written order from the investigating judge, which must include a statement of reasons specifying: information concerning the person in respect of whom the measures are carried out, relevant circumstances justifying the need for secret surveillance measures, the time-limits in which the measures can be carried out – which must be proportionate to the legitimate aim pursued – and the scope of the measures (Article 182, paragraph 1 of the Criminal Procedure Act). These measures can only be ordered upon a written request from the State Attorney, which must include a statement of reasons. Article 33 of the 2006 SISA specifies a list of measures for secret data collection by the Security and Intelligence Agency. For the following more intrusive measures, a judicial warrant of the highest court (the Supreme Court of the Republic of Croatia) is needed: secret surveillance of the communication content, postal censorship (secret surveillance of mail and other postage), secret surveillance and technical recording of the interior of facilities, closed spaces and objects, as well as the secret surveillance and monitoring, with audio recording of the content of communication between persons in open and public spaces (Article 36). On the other side, the following measures can be taken if approved by one of the Directors of security and intelligence agencies within their respective scope of activities: secret surveillance of the telecommunications traffic data, location of the user and international telecommunications; secret surveillance and monitoring, with recording of images and photos of persons in open and public spaces; secret purchase of documents and objects (Article 38).

Denmark

Authorization of measures of targeted surveillance (including data reading) is issued by the court. This is the case with both criminal and intelligence investigations. However, if the purpose of data reading would be defeated by having to initiate court procedures, the police (or intelligence service) may decide on its own to initiate data reading. In such cases the police (or intelligence service) must, within 24 hours, refer the case to the court for decision. If the court deems that data reading should not have been initiated, the court must report this to the Director of Public Prosecution (in case of the intelligence service to the Ministry of Justice).
See Art. 783 of the Administration of Justice Act.

Estonia

In intelligence investigations, covert entry into computer system for the purposes of covert collection or recording of information or installation and removal of technical aids necessary for such purposes requires an autorisation by the chairman of an administrative court or an administrative judge appointed by the chairman. In other cases, collection of personal data is decided by the head of a security authority or an official authorised thereby. In criminal proceedings, Covert examination of a postal item and secret interception of auditory or visual information require an authorization by the pre-trial investigation judge, in other cases an authorization by the Prosecutor’s Office is required.

Finland

Criminal and civilian and military intelligence investigation methods vary widely, with the choice of method adapted to the nature of the threat in question. Depending on the method used, decisions on the use of criminal and intelligence collection methods are made by a court, the Director of the Finnish Security and Intelligence Service or the head of intelligence operations. In each case, the Finnish Security and Intelligence Service must justify why the use of the method is necessary. While most measures of targeted surveillance in criminal and civilian and military intelligence require auhtorisation by a court, the installation and removal of a decive, process or software does not need authorisation by a court. Instead, Section 42 of the Act on Military Intelligence on installation and removal of a decive, process or software simply provides that “(a) public official serving a military intelligence authority has the right to install a device, process or software used for telecommunications interception, collecting data other than through telecommunications interception, data traffic monitoring, on-site interception, technical observation, technical tracking or technical surveillance of a device in the object, substance, item of property, premises or other location or in the information system targeted by the action if the use of the said intelligence collection method necessitates this.” Section 26 of the Coercive Measures Act provides essentially similarly on the installation and removal of a decive, process or software in criminal and civilian intelligence investigations.

France

With regard to judicial investigations, surveillance, such as electronic eavesdropping and data collection, is reserved for serious and complex crimes and must be authorized by judicial authorities who oversee individual liberties. With regard to intelligence investigations, the authorisation is entrusted to the executive backed up by an independent authorisation body. If the Prime Minister decides not to consider the negative opinion delivered by the National Commission for Control of Intelligence Techniques (Commission nationale de contrôle des techniques de renseignement, CNCTR), the CNCTR must immediately refer the case to the Council of State. The Council takes the final decision.

Germany

According to Section 49 (4) BKAG, the Federal Criminal Police Office (BKA) may only intervene on the information technology systems used by suspects and collect data from them without the knowledge of the person concerned, at the request of the President of the Federal Criminal Police Office or alternatively by authorisation from the court. Moreover, Sections 100a and 100b of the Strafprozeßordnung (StPO) prescribes that telecommunications surveillance and online searches may only be ordered by the court at the request of the public prosecutor’s office. Under strict circumstances provided by law, the order can also be issued by the public prosecutor’s office. However, if the order of the public prosecutor’s office is not confirmed by the court within three working days, it becomes ineffective.
Federal laws govern broader anti-terrorism measures, primarily via the Federal Criminal Police Office and Intelligence Services. Individual German states (Länder) have their police laws regulating preventive surveillance.
Authorisation of targeted surveillance measures in intelligence investigations is entrusted to the executive backed up by an independent authorisation body. Indeed, the federal intelligence services are not permitted to carry out telecommunications interceptions at source until they have received orders from the Federal Ministry of the Interior and Community and the operation has been cleared by the G10 Commission (a commission composed of five members, at least three of whom must be qualified to hold judicial office appointed by the Parliamentary Oversight Panel), while the Federal Intelligence Service (BND) requires clearance from the Independent Oversight Council (Unabhängiger Kontrollrat) before it can undertake computer network exploitation measures.

Greece

Article 19 of the Greek Constitution provides that surveillance may be ordered by the “judicial authority” for two reasons: first for reasons of national security and, second, for the purpose of investigating serious crimes.
In the case of surveillance for reasons of national security, as provided by Article 4 of law 5002/2022, the relevant order (διάταξη) is issued by the competent prosecutor following a request by EYP. The request should mention the reasons for which it is believed that national security is endangered. However, the competent prosecutor is detached (απoσπασμένος) on a full-time assignment tο EYP (under Article 5§3 of law 3649/2008) and his independence is thereof often contested. The EYP’s prosecutor’s order must be confirmed by a second (high-ranked) prosecutor who serves either at the Court of Appeals or at the Supreme Court (Areios Pagos). As provided, both prosecutors must deliver in 24 hours after EYP’ request has been submitted. Their order, however, is not supposed to reveal the reasons of the surveillance. Moreover, since it does not derive from an administrative agent but from the judiciary, it cannot be contested as such by way of a petition for annulment.
In the case of “serious crimes” -which, by the way, are enumerated by Article 6 of law 5002 of 2022- surveillance is ordered by the prosecutor who is in charge of the investigation of the relevant crime, following a request by the Directorate of Serious Crimes of the Greek Police.
Law 5002 of 2022 devotes a special section to the surveillance for national security purposes of “political persons” («πολιτικά πρόσωπα», Article 4§3). Beyond the head of the State, the Prime Minister, Ministers and MPs that term also includes local authorities’ officials. For the surveillance of these persons, before submitting a request to the competent prosecutor (see hereabove), EYP’s commander should seek the approval of the Speaker of the House of Representatives (the “Vouli”).

Iceland

This is the task of the police and the prosecutor and based on court order in cases of listening, as previously described.

Ireland

Criminal Justice (Surveillance) Act 2009
Authorisation for surveillance must be granted by a judge of the District Court. A superior officer of An Garda Síochána (the national police force), the Defence Forces, the Revenue Commissioners, the Competition and Consumer Protection Commission, or the Ombudsman Commission can apply for authorisation if they have reasonable grounds to believe that the surveillance is necessary for specific purposes such as investigating an arrestable offence, preventing the commission of such offences, or in the interests of state security. The application made by the superior officer is heard ex parte and in private. The judge may grant the authorisation if they are satisfied that the conditions outlined in the law are met, ensuring that the surveillance is justified, proportionate and the least intrusive means available. In cases of urgency, members of the relevant agencies can carry out surveillance without an authorisation if the surveillance has been approved by a superior officer. Authorisation must be obtained as soon as practicable following the approval.
The courts have emphasised that an authorisation under the 2009 Act does not grant state agencies complete authority. In The People (DPP) v R McC, the Court of Appeal noted that the circumstances in which surveillance devices can be used are strictly delineated by the conditions of the authorisation and the provisions of the Act. In Idah v DPP, MacMenamin J emphasised that state agencies are not free to choose whether to apply for an authorisation with judicial oversight or internal approval.
Interception of Postal Packets and Telecommunications Act 1993
The Minister for Justice can authorise interceptions for the purpose of criminal investigations or in the interests of the security of the State. Applications for authorisations must be made in writing by the Commissioner of the Garda Síochána for criminal investigations. The Minister can consult with the designated judge before deciding whether to give an authorisation.
The Minister must be satisfied that the conditions outlined in the law are fulfilled. Authorisation may only be granted where other investigative methods have failed or are likely to have failed. For criminal investigations, interception must assist in investigations of An Garda Síochána for a serious offence, or the prevention of the commission of an offence. For state security, there must be reasonable grounds to believe that activities endangering the security of the State are occurring or are imminent, and interception must provide material assistance in obtaining necessary information that other methods cannot quickly or effectively produce.
Communications (Retention of Data) Act 2011, as amended by the Communications (Retention of Data) (Amendment) Act 2022
Section 3A permits the Minister for Justice to apply the High Court ex parte for an order providing for the retention of Schedule 2 data for 12 months. User data can be accessed by An Garda Síochána, the Defence Forces, and the Garda Síochána Ombudsman Commission. User data may be accessed the purposes of investigating an offence, a revenue offence, for national security purposes, for police disciplinary matters for protecting the life or personal safety of a person, or to locate a missing person. Disclosure of user data can be required following an internal authorisation by a senior official within each body. There is no requirement for authorisation by a judge or an independent body.
Internet source data can be accessed by An Garda Síochána, the Defence Forces, the Revenue Commissioners, and the Garda Síochána Ombudsman Commission. User data may be accessed, depending on the investigating body, for the purpose of investigating a serious offence, a revenue offence, for national security purposes, for police disciplinary matters, for protecting the life or personal safety of a person, or to locate a missing person. Authorisation to require disclosure of internet source data is granted by a District Court judge, applying a test of necessity and proportionality. In cases of urgency, these bodies can access internet source data on the basis of internal authorisation by a senior official, followed by an application to a District Court judge for approval after the fact.
Schedule 2 data can be accessed by An Garda Síochána and the Defence Forces for the purpose of protecting state security. Authorisation to require disclosure of Schedule 2 data is granted by a District Court judge. In cases of urgency, this data can be accessed on the basis of internal authorisation by a senior official, followed by an application to a District Court judge after the fact. Schedule 2 data which is being held by a service provider for a purpose other than compliance with a High Court retention order under section 3A can be accessed for purposes other than national security, including an investigation of serious offences and other offences. The mechanism for accessing such data is the same as other Schedule 2 data.
Cell site location data can be accessed by An Garda Síochána on the basis of internal authorisation for protecting the life or personal safety of a person, or for determining the whereabouts of a missing person.

Italy

Judicial Authorities in any case: see the above-mentioned Article 15 of the Italian Constitution. However, a distinction should again be made according to the context in which the spyware can be used (in terms that we described supra).
A) In the context of criminal proceedings, Article 267 CCP lays down the necessary conditions for ordering a wiretap, stating that «the Public Prosecutor shall require the Preliminary Investigation Judge to issue an authorisation for ordering the activities
referred to in Article 266. The authorisation shall be given by reasoned decree if there is serious suspicion that an offence has been committed and the interception is absolutely necessary to continue the investigation» (paragraph 1). With specific reference to the use of spyware as a form of interception of face-to-face conversations by means of a portable electronic device, the same paragraph further provides that the order of the judge in charge of the preliminary investigation must «set out, with an independent assessment, the specific reasons that make this modality necessary in concrete terms for the conduct of the investigation; and, in the case of proceedings for offences other than those referred to in article 51, paragraphs 3-bis and 3quater, and for offences committed by public officials or employees against the public administration for which the penalty is not less than five years' imprisonment, determined in accordance with article 4, the places and times, even indirectly determined, in relation to which the activation of the microphone is authorised».
B) In the context of preventive interception, Article 226 implementing provisions CCP confers the power to request preventive interception on the Minister of the Interior or, by his delegate, on the heads of the central services referred to in Article 12 of Decree-Law No. 152 of 13 May 1991, converted with amendments by Law No. 203 of 12 July 1991, and on the Questore or the Provincial Commander of the Carabinieri and the Guardia di Finanza. The request shall be addressed to the Public Prosecutor of the Court of the main town of the district in which the person to be intercepted is located or, failing that, of the district in which the need for prevention has arisen, who may authorise the interception.
C) With regard to the intelligence phase, Article 4 of Decree-Law No. 144 of 27 July 2005 assigns to the President of the Council of Ministers the power to authorise the Directors of the Security Intelligence Services referred to in Article 2, paragraph 2, of Law No. 124 of 3 August 2007 to request authorisation for the interception of communications or conversations, including by telematic means, as well as for the interception of communications or conversations, even in the places referred to in article 614 of the
Penal Code, if this is deemed necessary for the performance of the tasks entrusted to them by articles 6 and 7 of law no. 124 of 3 August 2007. The authorisation shall be requested from the Public Prosecutor's Office at the Court of Appeal in Rome, that shall
grant the authorisation if the conditions laid down in Article 4-bis are fulfilled.

Korea

Kosovo

There are two sets of procedure, each applicable within its own context: (1) targeted surveillance in criminal procedure, and (2) targeted surveillance in intelligence investigations. The latter one is also known by domestic law as surveillance for the security needs of Kosovo and its citizens. In principle, both contexts require authorization / approval by a court order, however with certain specific nuances and limited exceptions as spelled out below.
In the case of criminal procedure, the surveillance measures are authorized through a court order upon request from the state prosecutor. According to the Law on Interception of Electronic Communications, "the Kosovo State Prosecutor is the only authorized institution to submit request for lawful interception of electronic communications before the competent court" which is the basic court. However, a number of institutions are entitled to propose such requests to the Prosecutor’s Office for lawful interception in the context of criminal procedure, namely the Police, the Customs, the Police Inspectorate, and the Tax Administration. The provision that sanctions the competent authority to order surveillance measures provides as follows: "The measure of electronic communications interception, including text messages or other electronic messages, interception of communications through computer networks shall be ordered by the court upon the request of Kosovo State Prosecutor."
One should note that there is a temporary exception to this rule in connection with a criminal procedure, which allows for the possibility that, in urgent criminal cases, the measure can be authorized by a provisional order issued in writing by the Kosovo State Prosecutor: "In urgent criminal procedures, the competent authority to order in writing the provisional interception measure shall be the Kosovo State Prosecutor." This exception is permitted by the Criminal Procedure Code, which provides: "Exceptionally, the state prosecutor may temporarily order one of the measures ... only if there is a risk of delay and if the state prosecutor has reason to believe that he will not be able to obtain an order of the pretrial judge on time, and he shall notify the court immediately, but not later than twenty-four (24) hours from the moment of issuance of the order. Such temporary order shall cease to have effect unless it is confirmed in writing by the pretrial judge within seventy-two (72) hours of its issuance. When confirming the temporary order of the state prosecutor, the pretrial judge shall ex officio make a written assessment of its
legality. If the court accepts the order of the prosecutor, it shall then confirm the order for special investigative measure." The same content is reflected in the Law on Interception of Electronic Communications: "The provisional order ... shall cease its effects and any information or evidence collected during this period shall not be lawful if such order is not confirmed in writing from the competent Judge within three (3) days from the issuing of such order" and that such provisional orders cannot be repeated.
In the case of intelligence investigations, the demanded authorization ought to be given by a Supreme Court Judge upon a request from the Director or Deputy Director of the Kosovo Intelligence Agency. The procedure is detailed in the Law on the Kosovo Intelligence Agency (KIA). The relevant legal provision provides as follows: "Surveillance in non-public places, or where the parties might reasonably expect to have privacy, the surveillance of telecommunications, and all other forms of electronic surveillance, as well as the entry into property without consent of the owner or temporary occupant, may only be used in cases where there has been an advance authorization by a Supreme Court Judge which shall only be granted upon the review of a written application made under oath and approved by the KIA Director or Deputy KIA Director." In such cases, the Supreme Court Judge is bound by an obligation of secrecy with respect to the information gained.
The Law also provides for the possibility of emergency surveillance orders, which are granted orally, and subsequently confirmed in writing by a Supreme Court Judge: "In an emergency situation, when time does not permit the preparation of a written application by the KIA Director or Deputy KIA Director or the granting of a written order by a Supreme Court Judge, the application may be made and the order for covert surveillance granted orally, to be confirmed in writing within forty-eight (48) hours." This procedure is also referenced in the Law on the Interception of Electronic Communications in connection with the security needs of the country and its citizens. It provides: "Interception for the security needs of the Republic of Kosovo and its citizens are carried out in accordance with the Law on Kosovo Intelligence Agency, following the issuance of a Court Order from a Supreme Court judge."

Kyrgzstan

The decision to carry out special investigative actions is made by the investigating judge on the basis of a petition from the investigator with the consent of the prosecutor.
In cases that cannot be delayed and may lead to the commission of a terrorist act or sabotage, on the basis of a reasoned decision of one of the heads of the relevant body carrying out operational-search activities, operational-search activities may be carried out, with immediate notification of the relevant court (judge) and the supervising prosecutor and subsequent receipt of a court
decision within 24 hours.
In the event of a threat to the life, health, or property of individuals, at their request or with their written consent, wiretapping of conversations conducted from their telephones or other communication devices is permitted on the basis of a resolution approved by the head of the body carrying out operational investigative activities, with mandatory notification of the relevant
court (judge) and the supervising prosecutor and subsequent receipt of a court decision within 24 hours.

Liechtenstein

Targeted surveillance (interception of communication) needs according to § 103 par 2 StPO the authorization of the investigating judge.

Lithuania

According to the Law on Criminal Intelligence, the use of technical means (including spyware) shall be sanctioned by a court order based on submissions of the prosecutors. However, in urgent cases (i.e., a danger to human life, health, property, public or state security), the use of technical means shall be permitted by the prosecutor’s order. In such a case, the prosecutor, having made this order, shall, within 24 hours, submit to the judge a confirmation request. If the judge does not confirm the actions, they are terminated, and the information obtained during them is immediately destroyed. For more information on these aspects, please see Articles 10 and 15 of the Law on Criminal Intelligence.
According to the Criminal Procedure Code, the use of technical equipment shall be sanctioned by a court order based on the prosecutor’s submission. In urgent cases, the prosecutor may also sanction this use. If the prosecutor’s order is adopted, the pre-trial investigation judge must confirm its legality within three days. The decision of the pre-trial investigation judge may be appealed to the higher court. For more information, please see Articles 154 and 160 and Part X of the Criminal Procedure Code.

Luxembourg

Law enforcement can deploy spyware under judicial authorisation.
In the framework of intelligence investigations, according to Article 7 § 4 of the Loi SRE, after the SRE’s decision to make the related request, the Director of the SRE sends a written and reasoned request to the Ministerial Intelligence Committee, composed of members of the Government. The written and reasoned request of the Director of the SRE is subject to the prior consent of a special commission composed of senior judges, namely the President of the Superior Court of Justice, the President of the Administrative Court and the President of the District Court of Luxembourg. After obtaining the consent of the special committee, the Director of the SRE submits the written request, together with the written consent of the special committee, to the Ministerial Committee on Intelligence composed of members of the Government, including the Minister responsible for intelligence to have the requested measure ordered.

Malta

The system of authorisations for surveillance and the system of oversight is dependent on the Executive. Under Chapter 391 of the Security Service Act, the Security Service of Malta can obtain authorisation for interception or interference with communications by means of a warrant issued by the Minister responsible for the Security Service, that is, as a norm, the Minister for Home Affairs. The law also applies to criminal proceedings.

Moldova

Targeted surveillance in intelligence investigations Article 27 in conjunction with article 20 of Law no. 59/2012 on the special investigation activity provides that:
The following special investigative measures may be ordered and carried out in order to perform the tasks provided for by this law:
1) with the authorization of the investigating judge by reasoned judgment, at the reasoned request of the public prosecutor:
a) localization or tracking by technical means;
b) interception and recording of communications and/or images;
(c) seizure, search, handing over or picking up postal items
(d) collecting information from providers of electronic communications services;
e) accessing, intercepting and recording computer data;
2) with the authorization of the prosecutor by reasoned order, at the reasoned request of the head of the specialized subdivision:
a) identification of the subscriber or user of an electronic communications network;
b) access to financial information
c) acquisition of control;
d) undercover investigation;
(e) collection of samples for comparative research;
3) with the authorization of the head of the specialized subdivision by resolution, at the reasoned request of the investigating officer:
a) search of objects and documents;
b) visual surveillance;
c) gathering information.
2. Targeted surveillance in criminal investigations Article 134 of the Criminal Procedure Code
(1) The following special investigative measures may be carried out in criminal proceedings:
1) with the authorization of the investigating judge:
a) search of the domicile, use and/or installation therein of devices providing photography or surveillance and audio and video recording;
(b) technical surveillance;
c) interception and recording of communications and/or images;
d) detaining, searching, handing over or collecting postal items;
e) monitoring or controlling financial transactions and/or access to financial information;
(f) collecting information from electronic communications service providers;
g) accessing, intercepting and recording computer data;
2) with the authorization of the prosecutor:
(a) identification of the subscriber or user of an electronic communications network;
(b) control of the transmission or receipt of money, services or other material or non-material value demanded, accepted, extorted or offered;
(c) controlled delivery
(d) controlled acquisition
e) undercover investigation;
f) visual surveillance;
(g) intelligence gathering.

Monaco

Autorité judiciaire.

Morocco

L’article 108 du Code de procédure pénale précité indique c’est au juge d’instruction en premier lieu d’ordonner l’interception des appels téléphoniques ou des communications effectuées par des moyens de communication à distance. Toutefois, le Procureur général du Roi peut intervenir également dans ce sens soit pour demander une ordonnance au premier président de la cour d’appel soit pour informer ce dernier de sa décision d’intercepter des communications lorsqu’il s’agit des crimes les plus graves et en cas d’extrême urgence.
Il convient de souligner à ce titre que depuis l’adoption de la loi n° 33-17 du 30 août 2017, le parquet n’est plus placé sous la tutelle du ministère de la Justice.

North Macedonia

The judiciary authorizes targeted surveillance. Targeted surveillance as special investigative measure in criminal procedures is authorized by the pre-trial judge on the demand of the public prosecutor (Art. 7 of the Law on Communications Surveillance). The interception of communications in intelligence investigations are approved by the Supreme Court judge on the demand of the Public Prosecutor of the Republic of North Macedonia on initiative of the Minister of Interior or Minister of Defense (Art. 20 of the Law on Communications Surveillance).
Request for the Implementation of a Special Investigative Measure
Article 7 of the Law on Communications Surveillance
A request for the implementation of a special investigative measure, specifically the monitoring and recording of telephone and other electronic communications (hereinafter referred to as the special investigative measure), is submitted to the competent pre-trial judge by the competent public prosecutor, either on their own initiative or at the suggestion of an authorized person from the judicial police.
Request for Issuance of an Order
Article 20 of the Law on Communications Surveillance
(1) A request for the issuance of an order to implement a measure for monitoring communications as outlined in Article 18 of this law is submitted by the Public Prosecutor of the Republic of North Macedonia at the proposal of the Minister of Interior or an
authorized person from the Ministry of Interior, or at the proposal of the Minister of Defense or an authorized person from the Ministry of Defense.
(2) The request described in paragraph (1) of this article must include:
The type of communication monitoring measure for which the request is made,
Data on the physical or legal person to whom the measure will be applied,
Data on the object, space, or item for which the measure will be applied,
The authority that will execute the order,
Justification of the reasons and necessity for proposing the implementation of the measure,
The duration of the measure, and
The type of telecommunications system, telephone number, or other identifying information, as well as an identification number for each of them individually.
(3) If the request is for the issuance of an order for multiple measures of communication monitoring, data for each measure must be specified separately.
(4) The request for the implementation of the measure for communication monitoring as described in paragraph (1) of this article is submitted by the Public Prosecutor of the Republic of North Macedonia to the judge of the Supreme Court of the Republic of
North Macedonia, designated by the internal court schedule.

Netherlands

Law enforcement authorities:
Prior authorisation is required from a public prosecutor and examining judge of a Dutch court to use the investigative power in Article 126nba DCCP.
Intelligence and Security Services:
Yes, prior authorisation is required from the head of service of the General Intelligence and Security Service (AIVD) or the Military Intelligence and Security Service (MIVD). A minister must authorise the use of this investigative power in Article 45 Act on intelligence and security services. The Investigatory Powers Commission (TIB) conducts a review of the lawfulness of using this power prior to its use (i.e., the penetration of a computer system).

Norway

Poland

In Poland for targeted surveillance measures related to criminal investigations, such as the interception of communications, the authorization must be obtained from a court. This typically involves obtaining a warrant from a judge who assesses whether the surveillance is necessary, proportionate, and justified based on the evidence presented. This judicial oversight ensures that surveillance measures are legally sanctioned and respect individual privacy rights.
The application for operational control is submitted to the competent district (sąd okręgowy) court along with the materials justifying the need for its implementation. This process provides the court with the opportunity to conduct a thorough analysis of the application and ensures independent and objective ex ante control over the restriction of constitutional rights and freedoms. Applications for the authorization of surveillance are considered by single judges, and in accordance with Article 47a of the Law on the System of Common Courts (Ustawa o ustroju sądów powszechnych), they are assigned to a judge on duty. At the meeting, a prosecutor and a representative of the authority requesting operational control may participate. Operational control is managed for a period not exceeding 3 months, but may be extended with the court's consent.

Portugal

Authorization for interception and recording is granted by a decision of the investigation judge upon request from the Public Prosecutor, under certain assumptions: the seriousness of the crime, considered by its nature and applicable penalty; and the assessment of the (indispensable) need of this means to obtain evidence, and that the proof would be impossible or extremely difficult to obtain through other means; from the meaning and intention of the law, this mean must be, therefore, exceptional.
The access by SIS and SIED intelligence officers to telecommunications and Internet data within the scope of research activity depends on prior and mandatory judicial authorization, by a Formation of the criminal chambers of the Supreme Court of Justice, which guarantees the weighting of the relevance of grounds of the request and the safeguard of the rights, freedoms and guarantees constitutionally provided for. The data access authorization process is always communicated to the Attorney General of the Republic.
Under article 6 of the Law, the request to data access can only be authorized when there are reasons to believe that the diligence is necessary, appropriate and proportionate, to obtain information about a target or a specific intermediary; or to obtain information that would be very difficult or impossible to obtain in any other way or in a timely manner to respond to an emergency situation, with real-time interconnection with the databases of telecommunications and Internet operators for direct access to line to the required data. Real-time interconnection with the databases of telecommunications and Internet operators for direct online access to the required data is prohibited.

Romania

Surveillance warrants are issued by a judge when evidence cannot be obtained through less intrusive means. In emergency situations, prosecutors can authorize surveillance for up to 48 hours, with subsequent judicial review (Article 141 § 1 of the Code of Criminal Procedure). If surveillance yields no useful information, it must be destroyed to protect individual privacy.
Surveillance activities by the SRI and SIE are authorized only when aligned with national security interests.

San Marino

Law no. 98 of 21 July 2009 governing the interception instrument authorises its use in investigative matters only by the Judicial Authority that orders it. The actual execution of interceptions is entrusted to the Judicial Police designated by the Judge.

Serbia

Judiciary. The authorisation (deciding on) of the measures of targeted surveillance in criminal and intelligence investigations is exclusively within the jurisdiction of the court.
Depending on the grounds, reasons and types of surveillance measures, the court makes a decision based on the reasoned proposal of the public prosecutor or the director of the Security Information Agency.
- According to the Law on Security Information Agency (Article 15), if conditions stipulated by this Law are met, court may order the application of a special measure based on substantiated proposal of the Director of the Agency. Decision on this proposal shall be made by the President of the Higher Court in Belgrade, i.e. judge whom he shall delegate among judges from the Special department of that Court, which, according to the law, processes cases dealing with criminal offences relating to organized crime, corruption and other particularly severe criminal offences.
If the Court adopts proposal for prescribing of a special measure, it shall issue an order. The order prescribing a special measure shall include title of the special measure, data available on an individual, group or organization against which it shall be applied, reasons stating that conditions (from Article 14 of this Law) are met, manner of application, extent and duration of the special measure. Special measure may be in effect for three months, and due to necessity of detection, prevention or collection of evidence, it may be prolonged not more than three times, each time for three months period. Application of the special measure shall be discontinued when reasons for its application cease to exist.
- According to the Criminal Procedure Code, if the conditions stipulated by this Law are fulfilled, acting on a reasoned request by the public prosecutor, the court may order supervision and recording of communications conducted by telephone or other technical means or surveillance of the electronic or other address of a suspect and the seizure of letters and other parcels.
The special evidentiary action shall be ordered by the judge for preliminary proceedings by a reasoned order. The order shall contain available data on the person against whom the covert interception of communication is being ordered, legal designation of the criminal offence, designation of a known telephone number or address of the suspect or telephone number or address for which grounds exist for suspicion that the suspect is using, the reasons on which the suspicion is founded, manner of conduct, scope and duration of the special evidentiary action.
The order shall be executed by the police, Security Information Agency or Military Security Agency. Daily reports shall be made on the conduct of the covert interception of communication and together with the collected recordings of communications, letters or other parcels shall be sent to the suspect or sent by the suspect, delivered to the judge for preliminary proceedings and the public prosecutor at their request.
The same procedure is prescribed for another Special Evidentiary Actions that can be related to spyware and that is Computer Data Search. If the conditions of this Code are fulfilled, acting on a reasoned motion by the public prosecutor the court may order computer searches of already processed personal data and other data and their comparison with data relating to the suspect and the criminal offence.
This special evidentiary action shall be ordered by the judge for preliminary proceedings by a reasoned order. The order shall contain data on the suspect, the statutory title of the criminal offence, description of the data it is necessary to search and process by computer, designation of the state authority which is required to conduct the search of the requested data, scope and duration of the special evidentiary action.
This order shall be executed by the police, Security Information Agency, Military Security Agency, customs service, tax administration or other services or other public authority, or a legal person vested with public authority on the basis of the law.

Slovakia

Targeted surveillance must always be authorised by the competent court. Under Section 4a PAIA, the jurisdiction lies with the regional court in whose district the requesting state authority is located. The only exception concerns crimes within the competence of the Specialised Criminal Court.
Surveillance measures may only be used with the prior written consent of the lawful judge and the consent may only be granted for six months. The consent may be extended upon a new application, but each time only for another six months. There is no remedy against the court’s decision either granting or dismissing the application. The application must contain the reasons for the use of surveillance measures and especially must justify the ineffectiveness of other measures in attaining the legitimate aim (Section 4 PAIA).
Both the judge and the applicant authority must continuously examine the persistence of the reasons for the surveillance and if the reasons no longer apply, the surveillance must be immediately terminated (Section 4 par. 6 and Section 6 par. 1 PAIA).
The surveillance under the CPC may only be authorised by a judge. In urgent matter, a prosecutor may do so but a judge but confirm their decision within 24 hours. The court warrant authorising surveillance must be substantiated and may only be issued for six months, with the possibility of repeated prolongation for a maximum of two months in each instance. The court and the police unit carrying out the surveillance must continuously verify whetherthe reasons for surveillance persist and if they no longer apply, the surveillance must be terminated immediately.
If no relevant information has been uncovered, any recordings or their copies must be destroyed.

Spain

5.1.- Intelligence services: ex ante judicial authorisation:
The general principle of prior judicial control is formulated in Art. 12 of Law 11/2002 and developed in Organic Law 2/2002.
In essence (a full translation of LO 2/2002 is annexed to this report) the legal regulation establishes the appointment by the General Council of the Judiciary of a Supreme Court magistrate (from the administrative or criminal chamber) and a substitute to authorise interceptions of communications by intelligence services. Both must have at least three years' seniority in the Supreme Court. Their term of office shall be five years. This judge may authorise the interception of communications at the proposal of the Director of the CNI. The director's proposal shall always be in writing and shall clearly state the reasons and the duration. The judicial decision shall be duly reasoned and for a fixed duration. It shall also provide for the destruction of all information obtained which is not related to the subject matter of the authorisation. The judicial decision shall be secret, although (see below) it may be declassified in accordance with the procedure provided for in the general legislation on official secrets.
5.2.- Criminal investigations: ex ante judicial authorisation
As stated supra in answer to question 2, the law stablishes a detailed regulation on the judicial authorisation needed to use these kinds of programs.

Sweden

Normally, the police or the Security Police provide the basis for the application to a prosecutor who in turn applies to a court which decides upon its use. As regards the use of secret data reading in connection with foreign terrorist suspects (section 9 of the Act), the application is made directly to a specialist court by the Security Police.
Where an application is made by a prosecutor, the prosecutor is to propose conditions on its use (section 18, first paragraph 4).
All such requirements to provide concrete/factual indications, and satisfy given evidential thresholds must be accompanied by duties to document this in the application. This is necessary, partly because the conditions might well change during the investigation and partly because it will be necessary for the follow-up oversight which must occur.

Switzerland

Authorization of targeted surveillance in criminal proceedings:
The public prosecutor's office is required to use special computer programs in targeted surveillance during criminal proceedings. These programs must be authorised by an independent judicial authority, namely the coercive measures court (cf. Article 274 CCP, a
priori control).
Art. 274 Procédure d’autorisation
1 Le ministère public transmet dans les 24 heures à compter du moment où la surveillance a été ordonnée ou les renseignements fournis, les documents suivants au tribunal des mesures de contrainte:
a. l’ordre de surveillance;
b. un exposé des motifs ainsi que les pièces du dossier qui sont déterminantes pour l’autorisation de surveillance.
2 Le tribunal des mesures de contrainte statue dans les cinq jours à compter du moment où la surveillance a été ordonnée ou les renseignements fournis, en indiquant brièvement les motifs de sa décision. Il peut autoriser la surveillance à titre provisoire, assortir l’autorisation de conditions ou encore demander que le dossier soit complété ou que d’autres éclaircissements soient apportés.
3 Le tribunal des mesures de contrainte communique immédiatement sa décision au ministère public et au service chargé de la surveillance de la correspondance par poste et télécommunication au sens de l’art. 3 LSCPT195. 196
4 L’autorisation indique expressément:
a. les mesures visant à protéger le secret professionnel qui doivent être prises;
b. s’il est permis de pénétrer dans un local qui n’est pas public pour introduire des programmes informatiques spéciaux de surveillance de la correspondance par télécommunication dans le système informatique considéré.
5 Le tribunal des mesures de contrainte octroie l’autorisation pour trois mois au plus. L’autorisation ne peut être prolongée que pour des périodes n’excédant pas trois mois. Si la prolongation de la surveillance est nécessaire, le ministère public la demande avant l’expiration du délai en en indiquant les motifs.
Authorization of targeted surveillance in intelligence procedures:
There are two situations to be distinguished:
− If the target is in Switzerland, the intelligence measure must be authorised by the president of a special section of the Federal Administrative Court (Article 29 IntelSA). Furthermore, the measure must be cleared by the Minister of Defence after consultation with the Minister of Foreign Affairs and the Minister of Justice. The Federal Council (the seven ministers' government) must be informed of cases of particular importance (Article 30 IntelSA).
Art. 29 Procédure d’autorisation
1 Lorsque le SRC envisage d’ordonner une mesure de recherche soumise à autorisation, il adresse au TAF une demande contenant les éléments suivants:
a. l’indication du but spécifique de la mesure de recherche et la justification de sa nécessité ainsi que les raisons pour lesquelles les investigations sont restées vaines, n’auraient aucune chance d’aboutir ou seraient excessivement difficiles;
b. les données relatives aux personnes concernées par la mesure de recherche;
c. la désignation exacte de la mesure de recherche envisagée et la base légale sur laquelle elle s’appuie;
d. la désignation des éventuels autres services qui seront chargés de la mise en œuvre de la mesure de recherche;
e. l’indication du début et de la fin de la mesure de recherche et le délai dans lequel elle doit être mise en œuvre;
f. les pièces essentielles au traitement de la demande.
2 Le président de la cour compétente du TAF [Tribunal Administratif Fédéral] statue en tant que juge unique dans les cinq jours ouvrables à compter de la réception de la demande du SRC en indiquant brièvement les motifs; il peut confier cette tâche à un autre juge.
3 Le président de la cour compétente du TAF n’autorise pas une mesure de recherche demandée lorsque celle-ci a déjà été autorisée sur la base d’une procédure pénale engagée à l’encontre des personnes visées à l’al. 1, let. b, et que l’enquête pénale présente un lien avec la menace concrète que la mesure de recherche du SRC doit éclaircir. Les tribunaux des mesures de contrainte compétents et le service de surveillance de la correspondance par poste et télécommunication fournissent au TAF les renseignements dont il a besoin.
4 Le président de la cour compétente du TAF peut demander l’audition d’un ou de plusieurs représentants du SRC avant de prendre sa décision.
5 Il peut assortir l’autorisation de conditions, demander au SRC de compléter les pièces du dossier ou demander des compléments d’informations.
6 Les mesures de recherche sont autorisées pour trois mois au plus. L’autorisation peut être prolongée à plusieurs reprises de trois mois au plus.
7 Lorsqu’une prolongation s’avère nécessaire, le SRC présente au TAF une demande motivée au sens de l’al. 1 avant l’expiration de l’autorisation.
8 Le président de la cour compétente du TAF établit un rapport d’activité annuel à l’intention de la Délégation des Commissions de gestion (DélCdG).
Art. 30 Aval
1 Une fois la mesure de recherche autorisée, le chef du DDPS décide s’il y a lieu de la mettre en œuvre après avoir consulté le chef du DFAE et le chef du Département fédéral de justice et police (DFJP). Les cas d’importance particulière peuvent être présentés au Conseil fédéral.
2 La procédure de consultation doit être organisée par écrit.
Art. 31 Procédure en cas d’urgence
1 En cas d’urgence, le directeur du SRC peut ordonner la mise en œuvre immédiate de mesures de recherche. Il en informe sans délai le TAF et le chef du DDPS. Ce dernier peut mettre un terme immédiat à une mesure de recherche.
2 Le directeur du SRC soumet la demande au président de la cour compétente du TAF dans les 24 heures et justifie l’urgence.
3 Le président de la cour compétente du TAF communique sa décision au SRC dans les trois jours ouvrables.
4 Une fois la mesure de recherche autorisée, le chef du DDPS décide s’il y a lieu de la poursuivre après avoir consulté le chef du DFAE et le chef du DFJP.
− If the target is outside Switzerland, only the Federal Council (the seven ministers' government) has the authority to decide on attacks on computer networks (Article 37, paragraph 1, IntelSA). In the case of computer network exploitation (paragraph 2), it is the Minister of Defence, after consulting the Ministers of Foreign Affairs and Justice. In both cases, no judicial authorisation is required.
Art. 37 Infiltration dans des systèmes et réseaux informatiques
1 Lorsque des systèmes et réseaux informatiques qui se trouvent à l’étranger sont utilisés pour attaquer des infrastructures critiques en Suisse, le SRC peut les infiltrer afin de perturber, empêcher ou ralentir l’accès à des informations. Le Conseil fédéral décide de la mise en œuvre d’une telle mesure.
2 Le SRC peut infiltrer des systèmes et réseaux informatiques étrangers en vue de rechercher les informations qu’ils contiennent ou qui ont été transmises à partir de ces systèmes et réseaux. Le chef du DDPS décide de mettre en œuvre une telle mesure après avoir consulté le chef du DFAE et le chef du DFJP.

Ukraine

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.
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.

United Kingdom

Authorizations involve the judiciary and the executive. Indeed, Section 108 of the IPA specifies that both in the context of criminal and intelligence investigation, the Investigatory Powers Commissioner (IPC) approves the warrants for equipment interference at the request of public authorities, such as the Secretary of State, intelligence agencies, police and local authorities. The IPC is supported by a team of Judicial Commissioners. They are appointed by the Prime Minister but must hold or have held high judicial office.

United States of America

In criminal investigations, judicial authorities provide authorization for targeted surveillance.
Electronic surveillance is considered to be a search in certain circumstances, requiring a warrant.
To obtain such a warrant, the law enforcement agency must show probable cause to believe that the search in question is justified, and they must provide a detailed description of the activities to be surveilled among other requirements. In the intelligence context, the FISA courts serve as an approval body for the use of surveillance tools.