CISA regarding an advocate: ECHR pointed out the need to justify the proportionality of the goal

When a court authorizes covert actions in «general terms», without reference to the specific circumstances of the case, and simply duplicates the investigation's statements about «essential importance» and «no other option», such authorization does not serve as a real guarantee against arbitrary interference with privacy.

This was confirmed by the European Court of Human Rights in the case of Vykhor v. Ukraine (application No. 36618/14). The decision of 22 January 2026 was published on the official website of the ECHR.

In May 2013, criminal proceedings were initiated against an advocate for allegedly inciting a client to transfer money which, according to the prosecution, was «demanded» by the judicial and police authorities for a favorable resolution of a criminal case.

The investigating judge issued two rulings allowing covert investigative (search) measures to be used against the advocate. These measures included wiretapping his two mobile phones and audio and video surveillance. The judge noted that there were sufficient grounds to believe that during the covert investigative actions, information could be obtained that would be of significant importance for the prevention, early detection, and termination of criminal offenses. He also repeated the police's argument that it was impossible to obtain this information by other means.

The advocate learned that the key evidence in his case had been obtained precisely as a result of these covert measures. The prosecution materials contained transcripts of his telephone conversations and a recording of a meeting with a former client, made by law enforcement agencies on the basis of court authorizations. Copies of these authorizations were attached to the case file.

The advocate repeatedly filed various criminal, disciplinary, and civil complaints, challenging the legality and proportionality of the covert measures applied to him. In these appeals, he insisted, in particular, that the warrants had been issued without proper assessment of the grounds and that the interference violated the confidentiality of his private communications.

He also attempted to challenge the authorizations themselves, but the High Specialized Court of Ukraine for Civil and Criminal Cases refused to consider his complaints, stating that such decisions of the investigating judge were not subject to appeal.

He then lodged an application with the European Court of Human Rights, claiming, in particular, that the special investigative measures applied to him (interception of mobile communications and visual, audio, and video surveillance in public places) had violated his right to respect for private life.

The Strasbourg court rejected the arguments of Ukraine's representative that the applicant had not exhausted domestic legal remedies and found that the contested actions constituted an interference with the rights protected by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Assessing the circumstances of the case through the prism of its approach to surveillance measures, the ECHR focused primarily on the content of the investigating judge's rulings authorising the covert actions. The European Court noted that these rulings were vague: they did not specify the circumstances of the criminal proceedings and essentially boiled down to a general statement about the possible «significant importance» of the information for the investigation and a repetition of the police's position that it was impossible to obtain it by other means.

Separately, the Court emphasized that there was no indication in the text of the rulings that the investigating judge had applied the criterion of «necessity in a democratic society» or verified the proportionality of the interference in light of the legitimate aim. In this context, the ECHR explicitly took into account that the applicant was a practicing advocate (such communications are subject to higher standards of confidentiality - ed.).

In these circumstances, the ECHR concluded that the authorization procedure in this case did not provide effective guarantees that the surveillance was indeed necessary and proportionate.

In addition, the Court found that there was no accessible post factum judicial review of the lawfulness or necessity of the covert measures used.

In view of all this, the ECHR found that the interference with the applicant's right to respect for private life and correspondence was not «in accordance with the law», found a violation of Article 8 of the Convention, and awarded the applicant €4,800 in compensation for non-pecuniary damage.

It should be recalled that, in accordance with Part 2 of Article 8 of the Convention, public authorities may not interfere with the exercise of this right, except where such interference is in accordance with the law and is necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

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