UNUSED MATERIALS FROM COVERT INVESTIGATIVE (SEARCH) ACTIONS: REGIME, DESTRUCTION, AND CONTROL

Abstract

Covert investigative (search) actions (CISA) involve concealed interference with private life. In such circumstances, the person affected has no real opportunity to immediately verify the lawfulness of the interference or to use procedural safeguards. Privacy protection therefore depends not only on whether CISA were properly authorised, but also on what happens to the materials afterwards: how they are selected, where and how they are stored, who can access them, whether reuse is possible, and under what procedures the data become genuinely inaccessible. A substantial share of information collected through CISA does not acquire evidentiary value or is not introduced into proceedings at all, yet it may continue to exist as a document, a physical item, a storage medium, or a digital copy.

In digital environments, the risk stems not only from retention but also from the data’s ability to “reappear” through duplicates and technical traces-backups, access logs, synchronised repositories. Moreover, in many systems “deletion” is primarily a logical operation: the content may remain available in other storage layers or backup circuits. Destruction, therefore, should rest on verifiable procedures rather than a single technical step.

The purpose of this article is to clarify the substance of the special regime governing unused CISA materials, identify typical risks of its implementation under digitalisation, and propose practical solutions that strengthen accountability and make destruction effective in practice. The study applies a formal legal analysis of procedural rules on destruction, prohibitions on third-party access and use, the return of items/documents, and notification of persons; a systemic approach to privacy guarantees; and a functional analysis of organisational and technical control barriers (role-based access, logging, audit, and controls over copying and export). It also draws on the European Court of Human Rights’ approach to the “quality of law” requirement and findings from research on secure data deletion and the reliability of digital evidence.

A working typology of unused CISA materials is proposed (records/attachments; storage media; items and documents; derivative materials), demonstrating that the special regime must cover the entire circulation of sensitive data rather than focusing narrowly on evidentiary status. In the digital context, “destruction” should be understood as a proven state of factual inaccessibility of content and the cessation of data circulation-something unattainable without an inventory of storage locations, accounting for copies and backups, and proper documentation of execution. Likewise, prohibitions on third-party use are meaningful only when supported by control mechanisms: role separation, logging, auditing, and restrictions on copying and export.

As practical measures, the article proposes a minimum set of required elements for a prosecutor’s destruction order (identification of objects without disclosing content; storage locations; a separate section on copies/backups; timeframe; responsible persons; and the method of oversight), a unified act for the destruction of digital data that records coverage of backups/synchronisations, and formalised return of property via an acceptance–transfer act that specifies the fate of copies. Regular audits of access to sensitive information are emphasised as a baseline standard of accountability.