Novelties in the Legal Regulation of Operational and Investigative

Activities

Andrey V. Nikulenko

The Herzen State Pedagogical University of Russia, Saint Petersburg, Russia

Keywords: Operational-search activity; criminal legislation; circumstances precluding criminality of the act; lawful

infliction of harm.

Abstract: The article is devoted to the circumstances that exclude of the criminality act in the criminal legislation of the

Russian Federation and their role in determining the legality actions of law enforcement officers (operatives)

during operational search activities. Objective: to identify the advantages and disadvantages of the legal

regulation of operational-search activities from the point of view of the current operational-search legislation

and criminal legislation of Russia. Tasks: to analyze situations of legitimate harm in the implementation of

operational investigative activities and develop proposals for improving the current legislation. Methods:

research of the relevant norms using the system method, general scientific methods (structural and functional

analysis, comparison, logical method, content analysis of the courts practice and mass media). Main results:

the study revealed the advantages and disadvantages of the regulatory framework for conducting operational

search activities, as well as significant qualification errors in forensic investigative practice. Conclusions and

justification of the work novelty: the paper substantiates the insufficient effectiveness of the existing approach

to the problems of legal regulation of operational search activities and suggests ways to solve these problems,

including by modernizing the existing norms and introducing new ones in Chapter 8 of the Criminal Code of

the Russian Federation. In view of the ambiguous and often inconsistent practice of applying the norms of

criminal law on the circumstances precluding the criminality of an act, it is proposed to use a casuistic

approach in the further reconstruction of the relevant norms to present the legislative wording of these norms

that allow causing legitimate harm to public relations protected by criminal law. At the same time, the wording

of the norms is created as clear as possible for the operative employee and the authorities controlling his

activities, as well as for citizens, which allows them to unambiguously assess the legality of their

implementation (operational search measures related to causing harm).

1 INTRODUCTION

Turning to the topic of circumstances that exclude the

criminality of an act in the criminal legislation of

Russia, it is not difficult to notice their obvious

legislative imperfection, incompleteness, which gives

rise not only to numerous disputes in the doctrine of

criminal law (Савинский А.В., 2018) within the

framework of which a single view on the legal nature

of these circumstances has not yet been developed,

but also significant contradictions in investigative and

judicial practice, generating errors that seal the fate of

socially active people who sought to carry out

socially useful behavior. Against the background of a

reduction in the number of employees, primarily

https://orcid.org/0000-0003-1332-4621

police officers, who are directly obliged to counteract

socially dangerous manifestations, the importance of

the institution of circumstances that exclude the

criminality of the act is significantly increasing

(Organized Crime, Trafficking, Drugs, 2004). Citizen

is often in a situation when, in the case of criminal

threats, he must rely on their own strength and ability,

and which are significantly limited by the framework

of the current legislation, as usual, falling short of the

realities of modern criminal situation (Milyukov S. F.

and Nikulenko A.V., 2020).

However, often show a complete helplessness and

representatives of law enforcement agencies, which,

in our opinion, are deprived of even minimal legal

and regulatory framework, giving effective

Nikulenko, A.

Novelties in the Legal Regulation of Operational and Investigative Activities.

DOI: 10.5220/0010628600003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

56-59

ISBN: 978-989-758-532-6; ISSN: 2184-9854

opportunities to counter criminal expansion

(Anderson E., 1999; Пархоменко С.В., 2018; T.R.

Oliveira, J. Jackson, K. Murphy, B. Bredford, 2018;

Milyukov S., 2021).

2 MATERIALS AND METHODS

The methodological basis of the study was primarily

the following two methods. First, the dialectical

method of cognition of social and legal phenomena,

according to which the circumstances that exclude the

criminality of an act are considered in the unity of

their social content and legal form. Secondly, the

method of systematic analysis of actual situations of

legitimate harm in the implementation of operational

investigative activities and reflecting their norms.

The work uses private scientific methods: logical-

semantic, system-structural, grammatical, document

analysis, and others.

3 RESULTS AND DISCUSSION

If we admit that the improvement of the Federal Law

"On Police" is still being demonstrated, then the

operational-search legislation froze at the level of

2006 (at that time, the adoption of the Law "On

Operational-search Activities" itself looked

progressive), when the presence of declaratory norms

was recognized as sufficient.

It is no longer possible to deny the close

relationship between the criminal legislation and the

legislation regulating operational and investigative

activities (Shkabin G.N., 2020). Moreover, the latter

cannot be legally implemented without taking into

account the provisions of the General Part of the

Criminal Code of Russia, not to mention the Special

Part. We are talking, first of all, about the norms

enshrined in Chapter 8 of the Criminal Code of the

Russian Federation (circumstances that exclude the

criminality of an act), without which it is impossible

to determine the legality of almost any operational

search activity.

The current rapid development of public relations

requires new approaches to the current legislative

formulations of the norms on circumstances that

exclude the criminality of an act in criminal

legislation (Parkhomenko S. V. Milyukov S. F.,

Nikulenko A.V., 2019) and a significant

modernization of operational and investigative

legislation, as well as the practice of their application,

which cause well-founded criticisms (Козлова Н.,

2020; Жарких И.А. 2021).

Almost any operational search activity, in one

way or another, encroaches on the rights of citizens,

and the protection of which is proclaimed by the

Constitution of the Russian Federation. For example,

such "harmless" things as questioning citizens,

making inquiries without remorse invade the privacy

of a person whose inviolability is enshrined in the

basic law of the country. Obtaining information about

people, events, and facts, especially those of

operational interest, is always associated with a

certain invasion of a person's personal life. And only

the official position of persons who have the right to

carry out operational search activities requires that

this information be kept secret.

It is noteworthy that a citizen has the right to

receive information about the ORM carried out

against him. But how can he know that they were

conducted against him?

Coming to the main point, we note that the

conditions for the legality of any operational search

activity are not defined in legal regulatory legal acts.

Departmental instructions are hidden not only from

the public, but also from practicing lawyers-

interrogators, investigators, prosecutors and judges,

in fact, determining the question of the legality or

illegality of the actions of operational workers.

Such a situation leads to negative consequences,

both for the citizen (Humphrey J., 2006; Finn J.,

2004) in respect of whom operational measures were

carried out illegally or in violation of the conditions

of legality, and for the operative employee himself,

since his actions can be recognized as criminal a

priori.

The author critically assesses the current state of

affairs and believes that the possibilities of the

relationship between criminal law and operational-

search legislation have not even begun to work. Only

article 39 of the Criminal Code of the Russian

Federation (extreme necessity) to some extent can

serve as a basis for determining the legality of the

implementation of a particular operational search

activity.

We believe that the modernization of the current

Chapter 8 of the Criminal Code of the Russian

Federation is long overdue in terms of the need to

consolidate fundamentally new norms regulating the

specifics of conducting operational-search events.

The first step could be a norm that establishes the

conditions for the legality of an operational

experiment and a test (control) purchase – the most

difficult operational search measures to implement,

affecting the constitutional rights and freedoms of

Novelties in the Legal Regulation of Operational and Investigative Activities

citizens and entailing (if successfully implemented)

criminal liability for the person against whom they

were conducted, and in this regard, causing a great

public outcry.

Subsequently, perhaps each operational-search

event can get its own legislative consolidation in the

criminal legislation, or certain conditions for the

legality of its conduct will be "embedded" in the Law

of the Russian Federation "On operational-search

activities".

4 CONCLUSIONS

In our opinion, it is necessary to construct the norms

of the articles of Chapter 8 of the Criminal Code of

Russia as clear as possible for the law enforcement

officer (Nikulenko A.V., 2019), that is, an ordinary

citizen performing his civil duty related to the

implementation of socially useful behavior by

harming public relations protected by criminal law, as

well as for law enforcement officers performing their

official duty to combat crime. Moreover, it is much

easier to achieve compliance and enforcement of

standards that are clear to everyone (the operative

worker, supervisory and judicial authorities,

lawyers).

We present our proposed norm on the operational

experiment:

"Article ... operational experiment.

1. It is not a crime to cause harm to interests

protected by criminal law as a result of an operational

experiment to expose a person guilty of committing a

crime and prevent the possibility of committing new

socially dangerous acts, if it was not possible to

expose such a person (persons) in this situation by

other means and at the same time there was no excess

of the necessary measures, that is, deliberate actions

that clearly do not correspond to the nature and degree

of public danger of the act committed by him and the

identity of the guilty person.

2. When assessing the legality of causing harm to

interests protected by criminal law, along with the

nature and degree of public danger of the committed

act, the person, methods of evading responsibility, the

reasonable need for causing harm to achieve the goals

of provocation and other circumstances related to the

fact of the operational experiment are taken into

account.

3. Exceeding the limits of an operational

experiment is recognized as causing harm that is

clearly inconsistent with the nature and degree of the

threatened danger of the act committed (committed)

by the person in respect of whom the experiment is

being conducted. Such excess entails criminal

liability only in cases of intentional infliction of harm.

4. The provisions of Part 1-3 of this Article shall

fully apply to persons who have the right to conduct

an operational experiment in connection with their

professional or other special activities or official

(official) position. If the content of the norms of other

legislative or subordinate normative legal acts

contradicts, the provisions of this article shall apply."

In our opinion, the author's position on the

problem of law enforcement of the rules on the

circumstances that exclude the criminality of an act,

in our opinion, will increase the effectiveness of the

mechanism for countering socially dangerous

manifestations by applying the required and sufficient

criminal legal means. The use of offensive measures

to counteract socially dangerous behavior is justified

(Milyukov S.F., 2016, 2018, 2021). The proposal of

the author's version of the norm of the Criminal Code

of Russia on operational experiment will allow to

apply it more actively in the framework of such

operational search activities as operational

experiment and verification (control) procurement,

designed to assist in countering such socially

dangerous manifestations as bribery and trade in

narcotic and other dangerous drugs and substances, as

well as weapons.

Getting the necessary effective tools in the hands

of an operational employee will allow you to use the

offensive in the fight against crime and increase the

importance of active counter-criminal actions of law

enforcement officers. It is well known that without

carrying out operational search measures, it is

impossible to solve almost any pre-planned crime.

ACKNOWLEDGEMENTS

The author is grateful to Gennady S. Shubin, Chief

Researcher of the Federal Research Institute of the

Federal Penitentiary Service of Russia, Doctor of

Law, Associate Professor for the suggestions and

materials that prompted the author to write this work.

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Novelties in the Legal Regulation of Operational and Investigative Activities