Inadmissibility of Information Disclosure concerning the

Implementation of the Operational-search Activity: Shortcomings of

Legal Regulation

Maxim Leonidovich Rodichev

, Alexander Nikolaevich Litvinenko

Ardak Maratovich Karl

and Timur Chingizovich Akhmedov

Department of operational-search activity of internal affairs bodies, St. Petersburg University of the MIA of Russia, St.

Petersburg, Russia

Department of economic security and social economic management, St. Petersburg University of the MIA of Russia, St.

Petersburg, Russia

Department of operational-search activity, Kostanai academy of the MIA of the republic of Kazakhstan, Kostanai,

Kazakhstan

Department of economic security and social economic management, St. Petersburg University of the MIA of Russia, St.

Petersburg, Russia

Keywords: Operational-search activity; the result of the operational-search activity; information concerning the

implementation of the operational-search activity; information disclosure concerning the implementation of

the operational-search activity; inadmissibility of information disclosure concerning the implementation of

the operational-search activity.

Abstract: The issue of information disclosure concerning the implementation of the operational-search activity is

extremely relevant for modern legal practice, as this information disclosure significantly affects the rights and

freedoms of the person and citizen, legitimate interests of society and the state. In 2020, the Federal Law

“Concerning the operational-search activity” was supplemented by Clause 12.1 “Inadmissibility of

information disclosure concerning the implementation of the operational-search activity.” In connection with

this circumstance, there was an interest in the investigation of the issue of information disclosure concerning

the implementation of the operational-search activity as to the extent to which the legislative novel is able to

solve the existing problems in this area. The purpose of the investigation was to analyze the rules of Clause

12.1 “Concerning the operational-search activity” and to identify the shortcomings of legal regulation

contained. The investigation identified existing law enforcement problems and formulated proposals for

changes to the Federal Act “Concerning the operational-search activity”.

1 INTRODUCTION

December 30, 2020 the Federal Act “Concerning the

operational-search activity” (hereinafter referred to as

the FA “Concerning the OSA”) was supplemented by

Clause 12.1 “Inadmissibility of information

disclosure concerning the implementation of the

operational-search activity.”

The issue of information disclosure concerning

the implementation of the operational-search activity

https://orcid.org/0000-0002-9334-0682

https://orcid.org/0000-0003-0599-4027

https://orcid.org/0000-0002-8258-1915

https://orcid.org/0000-0003-1366-030X

(hereinafter referred to as the OSA) is extremely

relevant for modern legal theory and OSA practice, as

this information disclosure significantly affects the

rights and freedoms of the person and citizen,

legitimate interests of society and the state.

The issues of ensuring individual rights in the

implementation of the OSA were considered in the

works of Gusev V.A. and Lugovik V.F. (Gusev, V.

A., Lugovik, V. F., 2019), Chechetin A.E.

(Chechetin, A. E., 2020, Chechetin, A. E., 2020,

Rodichev, M., Litvinenko, A., Karl, A. and Akhmedov, T.

Inadmissibility of Information Disclosure Concerning the Implementation of the Operational-search Activity: Shortcomings of Legal Regulation.

DOI: 10.5220/0010629500003152

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

93-97

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

Shatokhin, I. D., Chechetin A. E., 2020), Shatokhina

I.D. (Chechetin, A. E., Shatokhin, I. D., 2019),

Zhelezniak N.S. (Zhelezniak, N. S., 2019.

Zhelezniak, N. S., 2018. Zhelezniak, N. S., 2021.),

Shashina D.G. (Shashina D.G., 2020), Katkova S.V.

(Katkov S. V., Kornaukhova N. G., 2019) and

Shkabina G.S. (Shkabin, G. S., 2017).

Among foreign researchers, it should be noted S.

Gearty (Gearty, S. 2006), E. Neumayer (Neumayer,

E. 2005), M. Nussbaum (Nussbaum, M., 2007), D.

Tasiulas (Tasiulas, D., 2020) , A. Wallace (Wallace,

A., 2020) и K. Stoeckl (Stoeckl, K., 2020), whose

works concerning the issue of ensuring individual

rights are cited most often.

The novelty of our investigation is stipulated to

the small number of open scientific publications

devoted to the norms of Clause 12.1 of the FA

“Concerning the OSA”, including scientific and

practical comments to this clause.

The hypothesis of the investigation is the

assumption that the modern legal regulation of the

inadmissibility of information disclosure concerning

the implementation of the OSA is imperfect and can

cause significant problems of the law enforcement.

The purpose of the investigation is to analyze the

rules of Clause 12.1 of the FA “Concerning the OSA”

and to identify the shortcomings of legal regulation

contained.

Achievement of this goal presupposes the solution

of such tasks as the investigation of the theoretical

and legal foundations, as well as the existing practice

of information disclosure concerning the

implementation of the OSA.

2 MATERIALS AND METHODS

During the course of our investigation, we conducted

an analysis of the rules of the FA “Concerning the

OSA” as well as the acts of the prosecutor's response

to violations of legislation, which were made as a

result of the disclosure concerning the

implementation of the OSA.

The empirical basis of the investigation was the

mass media issues (hereinafter referred to as the news

media) concerning the implementation of the OSA

contained on the Internet. These issues were

considered for the use in the news media of the OSA

results, the legality of the said use, as well as the

possibility of violations of the rights and freedoms of

the person and the citizen, the legitimate interests of

society and the state.

In addition, we have investigated scientific

publications on the use of OSA results.

The investigation used a modelling method aimed

at identifying possible problems with the application

of the current version of Clause 12.1 of the FA

“Concerning the OSA”.

3 RESULTS AND DISCUSSION

FA “Concerning the OSA” is supplemented by the

Clause 12.1 “Inadmissibility of information

disclosure concerning the implementation of the

operational-search activity” and it should be

recognized as an attempt by the legislator to resolve a

number of current problems, but it appears to be an

attempt to fail.

The main drawback of the rule is the uncertainty

of the concept for “Information concerning the

implementation of the OSA”.

The legislator does not disclose the concept in any

way.

Incl. Part 1, Clause 12.1 of the FA “Concerning

the OSA” declares prohibition only against

information disclosure containing in requests sent to

citizens and organizations during the implementation

of the OSA.

Thus, the content of Clause 12.1 of the FA

“Concerning the OSA” leaves open the question of

what information the legislator proposes to prohibit -

the information contained in requests sent to citizens

and organizations in the OSA implementation process

or any information concerning the implementation of

OSA.

The content of such rules in Part 1 of the relevant

clause involves determining the range of information

that is prohibited.

For example, Part 1, Clause 161 “Inadmissibility

of preliminary investigation data disclosure” of the

Russian Federation Code of Criminal Procedure

establishes: “Preliminary investigation data are not

subject to disclosure, except in Parts of the second,

fourth and sixth of this Clause”.

Part 1, Clause 12.1 of the FA “Concerning the

OSA” does not prohibit any information disclosure

about the implementation of the OSA.

Despite the fact that Part 3, Clause 12.1 of the FA

“Concerning the OSA” contains a reference to the

prohibition on publicity of information concerning

the implementation of the OSA, this does not give the

right to broadly interpret the concept under review

and to refer to it any information about the

implementation of the OSA, since the purpose of Part

3, Clause 12.1 of the FA “Concerning the OSA” is to

consolidate cases where the disclosure of relevant

information is possible, the information provided in

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

the previous parts of Clause 12.1 of the FA

“Concerning the OSA” should be understood under

the information provided by the implementation of

the OSA.

Moreover, according to an explanatory note to the

legislative draft, which allows a better understanding

of the idea of the legislator, “the supplementation to

the Federal Act “Concerning the operational-search

activity” is aimed at the inadmissibility of

information disclosure contained in the requests, sent

to citizens and organizations in the process of

carrying out the operational-search activity, with the

exception of information announced in an open court

session, set out in complaints against decisions and

actions of bodies carrying out the operational-search

activity, as well as disseminated by authorized bodies

in the news media, the Internet or in another public

way” (Legislative system. Legislative draft

No.1070431 7).

Thus, formally, Clause 12.1 of the FA

“Concerning the OSA” contains a prohibition only

concerning the information disclosure contained in

the requests of the authorities implementing the OSA.

It should be noted that the rules of Clause 12.1 of

the FA “Concerning the OSA” do not prohibit the

information disclosure that may become known to

citizens and organizations as a result of other law

enforcement intelligence measures (hereinafter

referred to as the OSA), including those conducted in

a transparent form or containing disclosure elements.

The OSA practice shows that these measures, at a

minimum, may include: a survey; collecting samples

for comparative research; check purchase;

observation of premises, buildings, structures, areas

and vehicles; sting operation.

The introduction of a legal prohibition concerning

the information disclosure that became known to

citizens as a result of a single OSA - “inquiry” seems,

to say the least, strange.

In addition, the above suggests that the title of

Clause 12.1 of the FA “Concerning the OSA” does

not correspond to its contents, as the rules of this

article prohibit the information disclosure not

concerning the implementation of the OSA, but only

concerning the implementation of the “Inquiry” OSA

in the form of referrals to citizens and organizations.

Clause 12.1 of the FA “Concerning the OSA” for

the first time in domestic practice provides for the

possibility of making public disclosure information

concerning the implementation of the OSA by the

body implementing the OSA, the investigator, the

interrogator, the prosecutor or the court in the mass

media (hereinafter referred to as the news media), on

the Internet or in other public way.

It seems that the current practice of making public

information disclosure concerning the

implementation of the OSA raises doubts about its

legality.

Firstly, in the course of making public disclosure

information concerning the implementation of the

OSA, the personal data of detainees, victims, and

other persons are often disclosed, a video of the

detention is presented with a demonstration of the

appearance of objects and participants in the OSA,

other information is disclosed, as a result of which

their rights to immunity may be violated private life,

personal and family secrets, protection of one's honor

and good name, provided by Part 1, Clause 23 of the

Constitution of the Russian Federation.

It should be borne in mind that persons whose

information about their detention was distributed in

the news media, but who were not prosecuted, in

accordance with Part 1, Clause 133 of the Code of

Criminal Procedure of the Russian Federation, have

the right to rehabilitation, including compensation for

property damage, elimination of the consequences for

moral harm and restoration of labor, pension, housing

and other rights.

The problem is so long and acute that it was

reflected in the submission of the Prosecutor

General’s Office of the Russian Federation on

30.11.2006 No. 7/2-10034k-2006 “Concerning the

elimination of violations of Federal Law and the

disclosure of the preliminary investigation data” This

submission notes that the premature and uncontrolled

data disclosure causes harm to the participants in

criminal proceedings and contains a requirement “to

take measures to protect information about the

established circumstances of the case, about the

evidence collected, about the tactics and methods of

conducting an investigation, the persons who

committed the crime, as well as about the applicants.

and other participants in criminal proceedings, from

unauthorized access and illegal distribution”.

Unfortunately, the submission was largely

ignored by the law enforcement intelligence and

investigative bodies and had so far been one of the

few acts of legislation devoted to the problem has

been considering.

Secondly, the news media, in their issues,

sometimes directly use the OSA results, which refers

to information, materials, documents and other

material media obtained in accordance with the FA

“Concerning the OSA”.

The consideration of news media issues allows us

to conclude that most often the news media use such

OSA results as audio and video recordings,

photographs taken during the OSA, as well as

Inadmissibility of Information Disclosure Concerning the Implementation of the Operational-search Activity: Shortcomings of Legal

Regulation

information received from employees of operational

units.

The legislator is limited in its ability to use the

OSA results: it can only be carried out for purposes

expressly provided by the FA “Concerning the OSA”.

There is no provision for the news media to use

the OSA results by the FA “Concerning the OSA”.

Thirdly, arbitrary dissemination of information

concerning the implementation of the OSA can cause

the negative consequences: information disclosure

constituting a state secret; decoding of persons

assisting operational units in the preparation and

conduct of OSA; concealment of accomplices in

criminal activity; loss of evidence; violation of rights

and the emergence of threats to the legitimate

interests of participants in criminal proceedings.

Taking into account this circumstance, it should

be assumed that the distribution of information by the

news media concerning the implementation of the

OSA, before a criminal case is considered in court, it

is advisable only for solving the tasks of the OSA: for

example, to search for criminals or missing persons,

to identify additional facts of criminal activity, to

identify detained persons or found corpses, for

carrying out operational combinations, as well as in

other necessary cases.

Fourthly, the premature dissemination of

information concerning the implementation of the

OSA generates negative social processes, including

doubts about the legitimacy of the OSA conducted

and the unnecessary criticism of the bodies

participating in the OSA. Given this circumstance, it

appears that the distribution of information

concerning the implementation of the OSA, for

purposes not related to the immediate resolution of

the objectives of the OSA, should be mainly after the

conviction of the court.

4 CONCLUSIONS

So, the modern legal regulation of the information

disclosure concerning the implementation of the OSA

is imperfect and can cause significant problems of the

law enforcement.

In order to avoid these problems, we present the

following changes and supplementations to the FA

“Concerning the OSA”.

Firstly, Clause 12.1 “Inadmissibility of

information disclosure concerning the

implementation of the operational-search activity”

should be stated as follows:

“Information concerning the implementation of

the operational-search activity is not subject to

disclosure, except in cases provided by this clause.

This information may be made public disclosure

in order to solve the tasks of operational search

activities, the body carrying out the operational-

search activity, with the permission of its leader, and

only to the extent that it will be considered

permissible.

The prohibition for public information disclosure

concerning the implementation of the operational-

search activity does not apply to information that:

publicized in open court or made public during

pre-trial proceedings with the permission of the

investigator, the interrogator;

set out in statements, complaints and other

documents when challenging the decisions or actions

of the bodies (officials) carrying out the operational-

search activity, investigator, interrogator;

is distributed by the body carrying out the

operational-search activity, investigator, interrogator,

prosecutor or court in the news media, on the Internet

telecommunications network or other public way.

Disclosure of personal data by the body carrying

out the operational-search activity is not allowed in

order to prevent general offences.

When disclosing information concerning the

implementation of the operational-search activity, the

rights and freedoms of a person and a citizen to

privacy, personal and family secrets should be

protected.

For the transfer and disclosure of this information,

officials of the authorities engaged in the operational-

search activity, as well as persons to whom this

information was entrusted in the conduct of the

operational-search activity or became known by

service or work, are liable under current law”.

Secondly, in order to legalize the possibility of

using the OSA results by the news media, including

the possibility of demonstrating audio and video

recordings, photographs taken during the OSA, it

seems advisable to supplement Clause 11 of the FA

“Concerning the OSA” by the rule providing the

possibility of employing the OSA results to the news

media.

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Inadmissibility of Information Disclosure Concerning the Implementation of the Operational-search Activity: Shortcomings of Legal

Regulation