Who Authorises Surveillance? Coercive Digital Surveillance, the Rule of Law, and Access to Judicial Oversight: A Central and Eastern European Perspective

Background: Debates on digital surveillance are largely centred on privacy and data protection. However, the fundamental constitutional issue with coercive digital surveillance lies less in the severity of the interference than in who authorises it, and the oversight to which it is subject. In other words, the issues are essentially the separation of powers and access to justice. Method: The study uses a comparative doctrinal approach. Four countries selected through purposive sampling, Poland, Hungary, Ukraine, and the United Kingdom, are analysed based on the European Parliament’s PEGA Inquiry, the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), and reports by the European Commission. Results and Conclusions: The shift of the authority to authorise surveillance from the legislature to the executive, and from there to lower-level administration and, increasingly, to private actors, has necessitated an examination of the authorisation architecture through four key hinges: the legislative reserve, independent prior authorisation, effective ex post oversight, and delegation safeguards. The study shows how digital surveillance challenges each hinge individually and how this manifests in the case study. The study’s contribution lies in reframing digital surveillance primarily as a matter of authority allocation, identifying the four hinges of the authorisation architecture, and proposing a cumulative authorisation test tiered to the intensity of the intervention. Within this framework, access to justice becomes a prerequisite for legitimacy; the criterion, meanwhile, becomes transferable across different regimes. The case studies bear this out: in Poland and Hungary, all four hinges are failing simultaneously; in Ukraine, three are being rebuilt under EU accession conditionality; and in the United Kingdom, strengthening a single hinge is not enough to compensate for weakness in the others. The comparison shows that no matter how meticulously a proportionality review is conducted, it cannot correct a defect at the authorisation stage.