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Criminal defence

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Is your phone being tapped? Covert surveillance in Ukraine in plain words, and what the defence can really do

People talk about covert investigative actions either in a whisper or with confidence that "the latest iPhone can't be cracked". Both positions are wrong. Interception, data collection and tracking are a procedure with a court ruling, time limits and an obligation to notify you once it is over. And a phone gives away most information not because it was "hacked", but because the information was never in the phone in the first place.

The essentials in 20 seconds

Your private communications may be interfered with only under a ruling of an investigating judge of a court of appeal, and only in cases concerning serious and especially serious offences. The ruling is valid for up to two months. You must be notified of the covert actions within 12 months after they end. iPhone encryption protects the content of messages in the phone itself — but not call records, not cell-tower location and not the iCloud backup.

What covert investigative actions are, and why nobody knows about them until it is all over

Covert investigative (search) actions are investigative actions "information about the fact and methods of which is not subject to disclosure". In other words, they are not a separate kind of off-the-books operational work, but part of the same pre-trial investigation — with records that later go into the case file and that the defence is entitled to receive.

The law sets two conditions at once. First, the information about the offence and the person "cannot be obtained in any other way". Second, most covert actions that concern a phone are permitted only in proceedings on serious or especially serious offences. Theft or a domestic disturbance does not qualify for interception; drug dealing under Article 307, bribery, unauthorised absence under Article 407 and large-scale fraud do.

Article 246(1) and (2) of the Criminal Procedure Code of Ukraine
How permission to intercept comes about
01 An investigator's application, approved by the prosecutor With an extract from the Unified Register of Pre-trial Investigations, the identifiers of the subscriber or device, and reasons why the information cannot be obtained otherwise
02 An investigating judge of the court of appeal Not a local court — specifically a court of appeal, where the investigating body is located. The hearing takes place within six hours, without you and without your lawyer
03 A ruling for up to two months It can be extended, but only by a new application with new arguments. The overall duration is limited by the time limits of the pre-trial investigation
04 Carried out by the investigator or, on instruction, an operational unit The telecom operator is obliged to assist and has no right to inform the subscriber
05 The person is notified within 12 months after the action ends But no later than the indictment is filed. From that moment the defence can challenge its lawfulness
A refusal by the investigating judge does not stop the prosecutor from applying again with a new application. So "they were refused, which means nobody is listening" does not hold.
Article 247, Article 248(1) and (5), Article 249(1), Article 253(2), Article 263 CPC

The scale is not small. In 2024 investigating judges considered 151,000 applications for permission to carry out covert actions and granted 138,000 — 91 per cent. These are not the "exceptional cases" the law speaks of; this is routine in cases about serious offences.

Analysis of the administration of justice in criminal proceedings for 2024 (Supreme Court, State Judicial Administration), p. 14

What exactly can be done with a phone

The Code does not use the word "tapping". It has four kinds of interference with private communications and several other covert actions that concern a phone indirectly. Each comes with its own ruling and its own limits.

ART. 263 CPC Network interception Calls, SMS, internet traffic — whatever goes via the operator ART. 264 CPC Data from systems Access to the device itself, the cloud, accounts ART. 268 CPC Locating the equipment Where the phone is — by base stations, no content of calls ART. 260, 270 CPC Audio, video monitoring Of a person or a place — a mic and camera nearby, not the phone CHAPTER 15 CPC Temporary access: billing All but temporary access — only under a ruling of an investigating judge of a court of appeal
Scroll the diagram sideways →
Temporary access to call records is not a covert action: it is a ruling of an investigating judge of a local court under Chapter 15, but it is obtained just as much without your knowledge.

Interception of information on electronic communication networks

This is what is commonly called tapping: monitoring, selecting and recording the content of information passing through the operator. The ruling must contain the details that make it possible to "uniquely identify the subscriber under surveillance, the electronic communication network and the terminal equipment" — a number, an IMEI, an account. The operator must assist and has no right to tell the subscriber. The defence here has one tool: a ruling for a specific number does not allow listening to another one, and every record is later checked against the limits of the ruling.

Article 263 CPC

Collection of data from electronic information systems

Access to the device itself or to an account without the owner's knowledge requires a ruling. But this article has a second part worth knowing word for word: no permission is needed to obtain information from a system "access to which is not restricted by its owner… or is not connected with overcoming a logical protection system". Put simply: a phone without a passcode, an open social media profile, a public channel — none of this is interference. That is exactly how the Supreme Court reads it: switching on an unlocked phone and looking through its SMS is not a covert action.

Article 264(1) and (2) CPC; ruling of the Criminal Cassation Court of the Supreme Court of 09.04.2020, case No. 727/6578/17

Locating radio equipment

Where the phone is — by base stations, "without disclosing the content of messages". This is the only phone-related covert action that, in exceptional urgent cases — saving a life, preventing a serious offence — may be started before a ruling, with an immediate application to the court once it has begun. If the judge refuses, the action stops and whatever was obtained is destroyed.

Article 268, Article 250(1)–(3), Article 255 CPC

Audio and video monitoring of a person or a place

A microphone and a camera working near you — in a car, an office, a flat — under a ruling. To install the equipment, the law allows covert entry into places not open to the public. This is not a "hacked phone", but the result is the same: the conversation is recorded.

Articles 260, 267 and 270 CPC

The myth of the iPhone that can't be cracked

People imagine a single threat — someone has remotely "hacked" the phone and is reading the messengers. In reality an investigation works with three layers, and in two of them the phone is not needed at all.

LAYER 1 · OPERATOR No phone needed • who called whom, and when • call length, SMS • location by cell towers • IP sessions, traffic volume • whose name the SIM is in ENCRYPTION DOESN'T HELP Art. 263, 268 CPC or temporary access to billing LAYER 2 · CLOUD No phone needed • iCloud backup • photos, notes, files • the iMessage key — in the backup • mail, contacts, calendar • messenger backups PROTECTED ONLY WITH ADP Advanced Data Protection — off by default LAYER 3 · PHONE Possession needed • content of messages • deleted items, cache, search • everything not in the cloud ENCRYPTION WORKS …if the phone is off, or restarted and not unlocked since (the BFU state), and iOS is up to date
Scroll the diagram sideways →
The simplest way into the third layer is not a forensic toolkit but the owner typing in the passcode themselves.

Layer one: the operator

End-to-end encryption in Signal, WhatsApp or iMessage protects the content of messages. It does not hide that you communicated, when, for how long and where you were at the time. The operator always sees this, and determines location by base stations to within a city block — and there is no hiding from it while the phone is on. For an investigation this is the cheapest layer: a ruling on interception or temporary access to call records gives a picture of a person's life without touching the device at all.

EFF, Surveillance Self-Defense: The Problem with Mobile Phones; Article 162(1)(7), Articles 263 and 268 CPC

Layer two: the cloud

This is where the myth lives. With standard settings, an iPhone's iCloud backup is encrypted with keys stored in Apple's data centres — and that backup includes the key to your iMessage. Apple says so plainly in its documentation. So a request to Apple through international cooperation gives access to messages without hacking the device at all. End-to-end protection of the cloud appears only once Advanced Data Protection is turned on — and even then iCloud mail, contacts and calendar are not end-to-end encrypted. The same goes for Telegram "cloud" chats or WhatsApp backups to Google Drive without separate encryption.

Apple, iCloud data security overview (support.apple.com/102651)

Layer three: the device itself

This is where the iPhone really is strong — but with conditions. The encryption keys for some of the data are wiped from memory only in the "before first unlock" state after a restart (BFU). A phone that has been unlocked at least once since it was switched on (AFU) keeps the keys in memory, and those are the phones forensic toolkits such as Cellebrite or GrayKey get into most often. According to leaks in 2024, current iOS versions in the BFU state are closed to them; older versions and the AFU state are not. Since iOS 18.1 an iPhone restarts itself after 72 hours without being unlocked — precisely to return to the protected state. Such toolkits exist in Ukraine: Cellebrite purchases for law enforcement went through Prozorro in 2019–2025.

Apple Platform Security, Data Protection classes; Magnet Forensics, iOS 18 inactivity reboot (11.2024); 404 Media and MacRumors on Cellebrite and GrayKey (2024); Prozorro UA-2025-10-06-013451-a
What follows from this

"An iPhone can't be cracked" is true only of the third layer, only for a current iOS, and only for a phone that is switched off or has been restarted. The first two layers are open under a ruling with no hacking at all. And Pegasus-class spyware gets around the third as well — except in Lockdown Mode, which has not been broken so far.

Citizen Lab, BLASTPASS (09.2023) and NSO Group's Pegasus Spyware Returns in 2022 (04.2023); Apple, About Lockdown Mode

Arrest: the phone in the investigator's hands

This is the most common situation, and it is not about covert actions at all. The phone ends up in police hands on arrest or during a search, and there is one question — may they look at it and demand the passcode.

THEY MAY Take the phone on arrest and hand it to the investigator under a record During a search — inspect and record data on the spot, even if the ruling does not mention the phone During a search — bypass protection if you refused to remove it Look through an unlocked phone with no ruling — and with your consent, as an ordinary inspection of an item THEY MAY NOT Force you to give the passcode — that is testimony against yourself Seize a phone "just because": the law bans temporary seizure of mobile terminals except in three cases Obtain data from the operator without a temporary access ruling Use data from the phone about another offence without a separate ruling
Scroll the diagram sideways →
Article 18, Article 168(2), Article 236(6), Article 257 CPC; Article 63 of the Constitution of Ukraine; rulings of the Criminal Cassation Court of the Supreme Court of 22.02.2024, case No. 208/3704/22, and of 11.09.2025, case No. 601/1913/18

On passcodes and Face ID

The right not to testify against yourself means you are not obliged to give your passcode, and there is no liability for staying silent. What the investigator does next is up to them: the law allows them to bypass protection during a search, but they do it, not you. Biometrics is a separate question: there is as yet no case law expressly prohibiting holding the phone up to your face. The practical conclusion is simple: a passcode is stronger than Face ID, and a phone that is switched off is stronger than both.

They may not seize it "just because" — and they always do

The law is on your side here, and it is worth knowing word for word. Temporary seizure of mobile terminals, computers and other electronic systems is prohibited — except in three cases: the phone is needed together with the information for an expert examination, it is an instrument or a product of the offence, or the owner has restricted access to the data and it cannot be copied on the spot. In all other cases the investigator must not take the device but make a copy of the information with the help of a specialist — at your request, onto your own storage device.

In practice, a phone is seized at every arrest and almost every search. The explanation is always the same — "there is logical protection, copying is impossible" — and formally it falls under the third exception. Arguing on the spot is pointless; something else works. Property taken without a ruling is temporarily seized, and the investigator or prosecutor must apply to an investigating judge for an attachment order no later than the next working day, otherwise the phone has to be returned immediately. The attachment application is heard with your participation — and that is the first moment when the defence can show that none of the three exceptions has been proven and the phone has nothing to do with the events. If the attachment is ordered after all, there is a separate application for return, and a complaint to the investigating judge about the investigator's or prosecutor's failure to return it.

Article 168(2), Article 169, Article 171(5), Articles 172 and 174, Article 303(1)(1) CPC

What to do at the moment of seizure

Step by step when your phone is seized
01 Do not unlock it and do not give the passcode Calmly: "I will not give the passcode; that is my right under Article 63 of the Constitution." No explanations and no bargaining
02 Insist that the phone is entered in the record with its IMEI and condition Locked or not, on or off, any damage. This proves there was no access without the passcode
03 Do not give "voluntary consent" to an inspection Consent turns the seizure into an ordinary inspection of an item, which cannot later be challenged
04 Note who handled the phone and when Every time the screen is woken it leaves a trace in the system — an argument for the defence if the inspection took place before a ruling
05 Call a lawyer from another phone The attachment application is heard in the first days — after that the property "settles" in the case

What the defence can do: three points of entry

Covert actions are carried out without you, but they are assessed with you. And it is here that the results of interception can stop being evidence.

Point one: disclosure of materials

The prosecution must disclose to the defence not only the records of the covert actions but also the documents on which they were based — applications, decisions, rulings. The Grand Chamber of the Supreme Court said so directly: the defence "is entitled to information about all elements of the procedure by which the prosecution obtained evidence". If they were not disclosed, the court may not use them. If the ruling was not declassified for reasons beyond the prosecutor's control, it is disclosed later, and the court must give the defence real time to contest it.

Article 290(12) CPC; rulings of the Grand Chamber of the Supreme Court of 16.01.2019, case No. 751/7557/15-к, and of 16.10.2019, case No. 640/6847/15-к

Point two: the limits of the ruling

A ruling covers a specific person, a specific number, a specific period and a specific offence. Anything outside that is inadmissible as obtained without the court's permission. They were listening to one person but are charging another whose voice was "accidentally" recorded? A separate ruling on using the results in other proceedings is required — otherwise an acquittal, and the Supreme Court has upheld such acquittals. Recording after the two months had expired? Audio monitoring in a detention centre without a ruling, citing urgency? All of these are material violations under Article 87 CPC, and together with the evidence everything derived from it falls too.

Article 87(1) and (2)(1), Article 257 CPC; rulings of the Criminal Cassation Court of the Supreme Court of 21.03.2018, case No. 751/7177/14, of 10.10.2019, case No. 593/1248/16-к, and of 14.10.2024, case No. 698/1151/15-к

Point three: entrapment

Controlling the commission of an offence — a controlled purchase, a special investigative experiment — has a hard limit: "it is prohibited to provoke (incite) a person". If there was no objective suspicion before the covert actions, if permission was obtained before the crime report appeared, if the "buyer" is a regular police informant — that is entrapment by the criteria of the European Court of Human Rights, and it is the prosecutor, not you, who must prove there was none.

Article 271(3) CPC; rulings of the Criminal Cassation Court of the Supreme Court of 11.07.2018, case No. 336/4522/15-к, of 05.02.2020, case No. 704/913/15-к, and of 11.03.2020, case No. 149/745/14; ECtHR: Ramanauskas v. Lithuania (2008), Teixeira de Castro v. Portugal (1998)
An honest caveat

In 2022 the Supreme Court softened its approach: a procedural violation leads to inadmissibility not automatically, but if it affected a constitutional or Convention right. So the defence is built not on "finding a mistake in a date", but on proving that this particular mistake violated your right to privacy or to a fair trial.

Ruling of the Grand Chamber of the Supreme Court of 31.08.2022, case No. 756/10060/17

What not to do

  • "Clean" the phone after being summoned by the investigator. The law has no separate criminal offence for destroying your own data. But the investigation will find out — and the court will weigh that conduct. More importantly: along with the "dangerous" material you will destroy what could have supported your version.
  • Trust "disappearing messages". They disappear for the other person too — but not from their backup or from the operator.
  • Discuss the case on the phone once proceedings are open. If you are suspected of a serious offence, assume the ruling already exists. Communication with your lawyer is protected separately: interference with it is expressly prohibited.
  • Hand over the passcode "so they let you go faster". They will not let you go faster. And whatever they find will go into the charges.
Article 258(5) CPC

What is worth doing today

  • A passcode instead of Face ID as the main way to unlock; a long alphanumeric one, not six digits.
  • Turn on Advanced Data Protection for iCloud — or switch off cloud backup altogether.
  • Keep iOS updated: older versions are open to forensic toolkits.
  • If the risk is real — Lockdown Mode. Inconvenient, but not broken so far.
  • Remember that a phone that is switched off is the only state in which the third layer is truly closed. The first two are never closed.

Frequently asked questions

Can I find out whether my phone is being tapped?

No — neither technically nor by request. The operator is obliged to stay silent. The only lawful route is the notice after the covert actions end, which the investigator or prosecutor must send within 12 months, and the case materials disclosed to the defence under Article 290 CPC.

Can they tap a phone over a theft or a road accident?

No. Interception on networks and systems, audio monitoring and surveillance are allowed only in proceedings on serious and especially serious offences. Locating a phone under Article 268 is not named on that list — its limit is different: only when the information cannot be obtained otherwise.

Am I obliged to give my phone passcode?

No. This is the right not to testify against yourself under Article 63 of the Constitution and Article 18 CPC. During a search the investigator may bypass protection themselves — but without your participation.

Does Telegram or Signal protect against tapping?

The content — yes, if it is a secret chat or end-to-end encryption. The fact of communication, the time, the place and cloud copies — no. In ordinary Telegram chats the history is stored on Telegram's servers.

What if I was tapped without a ruling?

Raise the inadmissibility of the evidence under Article 87 CPC — and of everything derived from it. Supreme Court case law is on the defence's side where the right to privacy itself was violated: covert actions without a ruling, outside its term, or against another person without separate permission.

In short

Tapping means a ruling of an investigating judge of a court of appeal, for two months, in a case about a serious offence — and you will be told about it after it ends. An iPhone protects only what is in the phone itself, and only while it is switched off; the operator and the cloud are open under a ruling with no hacking. You are not obliged to give your passcode to anyone. Seizing a phone without grounds is prohibited — but it is always done, and getting it back goes through the investigating judge. The results of covert actions stop being evidence when the prosecution did not disclose the documents they were based on, went beyond the limits of the ruling or provoked the offence — and that is what the defence fights for.

Your phone was seized, or you suspect it is being tapped?

Tell us which proceedings and what has already happened — we will look at which materials the prosecution must disclose and what in them can be challenged.

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