Judicial control over the observance of human rights and freedoms during the consideration of the prosecution’s motions for permission to conduct covert investigative (search) actions in terms of observance of the principles of the right to a fair trial

The article is devoted to the problematic issues of regulation of judicial control during consideration of applications for permission to conduct covert investigative (detective) actions and use their results for other purposes, in terms of ensuring the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The principle of fairness of a trial is interpreted in certain judgments of the European Court of Human Rights as the proper administration of justice, the right of access to justice, equality of parties, adversarial nature of the trial, reasonableness of the trial, etc. The construction of Article 6 of the Convention indicates the existence of the following key elements of the right to judicial protection: 1) the right to a hearing; 2) fairness of the hearing; 3) publicity; 4) reasonable time; 5) hearing by a court established by law; 6) independence and impartiality of the court. The author examines the key issues affecting the objectivity of court decisions in this area, imperfections of the procedures provided for in the criminal procedure legislation in terms of ensuring the fairness of the trial, reasonableness and motivation of the court decision. Special attention is paid to the problems of ensuring the independence and impartiality of the court as a factor that significantly affects the legality of such decisions, and the author suggests ways to improve the effectiveness of judicial control in this area. According to the author the legal regulation provided for by criminal procedure legislation in the area of judicial control over covert investigative (detective) actions, both in terms of consideration of applications for permission to conduct activities related to interference with private life and the use of the information obtained in another criminal proceeding or for another purpose, does not ensure compliance with the guarantees of the right to a fair trial provided for in Article 6 of the European Convention. Along with the need to take effective measures aimed at ensuring the independence of the judiciary and the impartiality of judges, criminal procedure legislation also needs to be improved. In particular, the article suggests that reforms should be aimed at overcoming “formalism” in the course of consideration of applications for permission to conduct covert investigative (detective) actions.