Intersectoral Assessment of Criminal Law Harm in the
Implementation of Law Enforcement Intelligence Operations
Alexey Alekseyevich Chistyakov
1,2,3 a
, Liudmila Aleksandrovna Bukalerova
2b
, Alexandra
Sergeevna Vasilenko
4c
and Oksana Vladimirovna Kurlaeva
5
1
Peoples' Friendship University of Russia (RUDN University), Moscow, Russian Federation
2
The State University of Management, Moscow, Russian Federation
3
Ryazan Branch of Moscow University Ministry of Internal Affairs of Russia named after V. Ya. Kikot, Ryazan, Russian
Federation
4
Peoples' Friendship University of Russia (RUDN University), Moscow, Russian Federation
5
Enterprise Law group, Chicago, USA
Keywords: Criminal law, law enforcement intelligence operations, problems of law, science and practice, harm caused
in the course of law enforcement intelligence operations, criminal responsibility, criminal and legal
assessment of the harm caused in the course of socially useful activities, intersectoral regulation of institutions
of criminal law, criminal procedure and law enforcement intelligence operations, circumstances precluding
criminality of the act, law enforcement intelligence operations, criminal procedural possibilities of
intersectoral institutions.
Abstract: The article considers the problems of revealing the relationships that exist between criminal law and law
enforcement intelligence operations. These relationships are analyzed and established at both sectoral-legal
and sectoral-legislative levels. A key aspect of the study is the hypothesis on the possibility of consideration
of these relationships in terms of unity of assessment of the harm caused by illegal actions of persons engaged
in the law enforcement intelligence operations. The relevance of the selected topic of the study lies in the
active use of means of legislative codification in the implementation of evaluation processes aimed at
establishing the specifics of manifestation of assessment of those consequences that are a direct consequence
of the actions of officers and assistants, carrying out their activities under operational cover. Legislative
regulation does not bring the expected results, and therefore the article analyzes the possible causes of the
current condition. The analysis of basic scientific and legislative concepts reveals the main obstacles of
general theoretical, methodological and practical aspect, which affect the effectiveness of the circumstances
precluding criminality of the act, when assessing the harm in the implementation of law enforcement
intelligence operations. The aim of the study is to identify and demonstrate the presence of functional
relationships between two branches of law and legislation criminal law and law enforcement intelligence
operations in relation to the criminal law assessment of the harm caused in the course of law enforcement
intelligence operations. The objectives of the study are to analyze the main elements of the mechanism of
interrelation of law enforcement legislation with criminal law, determine the main aspects of intersectoral
order between law enforcement legislation and criminal legislation, and establish the possibilities of
methodological aspect in determining intersectoral order between the categories in question.
1 INTRODUCTION
Considering the legislative possibilities of implemen
ting the principle "each branch needs its own sanction
a
https://orcid.org/0000-0003-4266-2515
b
https://orcid.org/0000-0003-2794-5074
c
https://orcid.org/0000-0003-4029-8502
provision" invariably faces obstacles in the Russian
legislation created by long-standing legal traditions.
It seems that the simplest solution to this situation
would be legal structures that allow each branch using
its own levers of responsibility and sanction
294
Chistyakov, A., Bukalerova, L., Vasilenko, A. and Kurlaeva, O.
Intersectoral Assessment of Criminal Law Harm in the Implementation of Law Enforcement Intelligence Operations.
DOI: 10.5220/0010635700003152
In Proceedings of the VII International Scientific-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages
294-299
ISBN: 978-989-758-532-6; ISSN: 2184-9854
Copyright
c
2021 by SCITEPRESS Science and Technology Publications, Lda. All rights reser ved
mechanism based on the example of such branches of
law as civil, labor, criminal and administrative law.
Regarding the responsibility and sanction procedure
for implementing the effectiveness of any legal
branch, it would be useful to consider the mechanism
of criminal law regulation. It is the so-called second
type mechanism, the main distinguishing feature of
which is a certain step-by-step transition and
influence of one element, stage, on another. In this
case, the previous stage exerts the kind of impact, at
which the subsequent element appears, having new,
previously non-existent qualities. These deterministic
relationships can be observed in the development,
formation and legal regulation (Olga G. Tavstukha,
Alla A. Korzhanova, Alexey A. Chistyakov, Kirill A.
Chistyakov, Irina I. Shatskaya, Alexandra S.
Vasilenko, Lyudmila D. Starikova, Elena V. Maleko.
2018). Talking about such determinants and
mechanisms, both in social and jurisprudence aspects,
it is necessary to point out that these terms
(mechanism of criminal law regulation, mechanism
of perception of criminalistic reality, mechanism of
criminal procedural coverage of the territory,
mechanism of regional security, mechanism of
perception of emotional prohibitions, etc.) are used
quite often both when describing systems and when
analyzing elements of these systems. That is, in the
most general terms, mechanisms are understood as
devices, prefabricated structures, notional models and
dynamic social systems, the totality of elements of
which, interacting with each other, has some impact
on the elements and phenomena for the sake of
achieving a certain goal. (Aleksandra S. Vasilenko,
Vladimir M. Filippov, Maria A. Simonova, and
Sergey A. Kovalenko. 2020).
We have just attempted to express the notion of
mechanism through the category of dynamic system,
since any mechanism is ultimately a system of
involuntary elements.
Therefore, it is quite right to correlate the
mechanism as a phenomenon with the structure, the
ordered totality, the systematicity of a certain group
of elements.
Professor S.S. Alekseev pointed out this
circumstance in the work «Mechanism of legal
regulation in a socialist state». By the way, exactly
after the publication of this work, in Russian
jurisprudence there appeared many works devoted to
this topic (V.S. Prokhorov, N.M. Kropachev, A.N.
Tarbagayev, 1989).
Unfortunately, scientific criminal law studies in
recent decades quite rarely address the category of
legal mechanisms, but it is thought that the potential
of this scientific phenomenon, both in the institutional
and ontological sense, is not fully used. (V.N.
Protasov, 1995).
The aim of this study is the problem of the
presence of substantial functional relations between
the institutions of criminal law and law enforcement
intelligence operations. Intensive processes
characterize traditional methods and ways of
assessing and identifying these relations. It is
proposed to conduct research from the point of view
of extensiveness, namely, to consider the proposed
problem from the position of criminal law assessment
of harm caused in the course of legal law enforcement
intelligence operations.
The objectives of the study are as follows:
defining (outlining) the main features of the existing
problem of establishing determinant relations
between criminal law and law enforcement
intelligence operations, establishing the possibility of
using the criminal law assessment of the harm caused
in the course of law enforcement intelligence
operations as a link in the intersectoral relations
between criminal and law enforcement legislation.
2 MATERIALS AND METHODS
Materials used in this study:
Works devoted to the problem of intersectoral
relations of functioning of the main elements of the
mechanism of legal regulation;
Current scientific studies devoted to the
problem of criminal law assessment of harm caused
in the achievement of socially beneficial goals;
Publications devoted to the problem of non-
criminalization of persons who willfully caused harm,
subject to criminal law assessment, during the
implementation of law enforcement intelligence
operations;
Current scientific developments that analyze
the complex of social relations regulated by the set of
norms relating to various branches of legislation;
Official statistical data of law enforcement and
judicial bodies of the Russian Federation, reflecting
the intensity of the application of criminal legislation
in terms of implementation in the non-criminalization
due to the lack of evidence of criminality of the ac;
Criminal, law and intelligence legal acts
regulating the issues of judicial implementation in
terms of circumstances precluding criminality of the
act in the implementation of law enforcement
intelligence operations.
Research methods: logical-legal, formal-
legal, method of comparative analysis, as well as
Intersectoral Assessment of Criminal Law Harm in the Implementation of Law Enforcement Intelligence Operations
295
scientific modeling, complex method and
classification.
3 RESULTS AND DISCUSSION
When the term "regulation" is used, it usually refers
to some kind of organization, bringing into proper
order, a system, some kind of systematization. We
have already noted that any mechanism of regulation
is a certain system, the elements of which have some
impact either on the elements themselves, or on the
environment. That is the mechanism of influence
affects some elements, phenomena and
circumstances, regulating and ordering elements and
relations.
The above-mentioned mechanism of criminal law
regulation is a socio-legal unity of means and
methods of legal impact on social relations (S.S.
Alekseev, 1982). These elements of the mechanism
of criminal law regulation affecting social relations
are norms and relationships that turn after the legal
impact of criminal law norms into criminal law
relationships. Within the framework of these criminal
law relationships, a criminal responsibility arises. The
considered dynamic system of criminal law impact
represents an integral part of the overall mechanism
of legal regulation, which is derived from it. Due to
this circumstance we can assert for sure that at this
stage the social relationships arising in the
implementation of law enforcement intelligence
operations need criminal law regulation.
The needs of operational and service practice
determine the emergence of specific means and
methods of collecting information, decision-making,
detection and suppression of crime, and searching for
criminals. Due to the fact that these activities are
directly related to the suppression of crimes and
offenses in the early stages of criminal activity, then
it for sure needs criminal law regulation at these
stages. That is, the criminal law acts as a kind of
servicing mechanism, without the support of elements
of which law enforcement intelligence operations are
doomed to ineffectiveness or, even worse, doomed to
the commission of offenses.
Links and elements of the mechanism of criminal
law regulation function with a consistent phasing
(A.M. Pleshakov, G.S. Shkabin, 2020). With criminal
law impact, the subject of criminal law regulation is
not just social relations, but precisely those that bear
in their potential an extremely negative, dangerous,
threatening other social relations. This is the sense
that gives rise to the need for the emergence of
criminal law prohibitions under threat of punishment.
Subsequently, the sanction-responsible mechanism
begins to work with the violation of the criminal law
prohibition. However, on the other hand, criminal law
also carries incentives in its content. This is expressed
in the need to create a mechanism of criminal law
protection of persons carrying out law enforcement
intelligence operations and forced, for the sake of
achieving socially beneficial goals, to commit actions
that are considered as deeds involving the infliction
of socially dangerous consequences.
The mentioned mechanism of criminal law
protection, as well as the mechanism of sanction-
responsible order, is characterized by such a kind of
impact, which we usually call external or objective.
However, external manifestation and application
causes a subjective assessment of the impact of some
internal psychological attitude to this impact (A.M.
Pleshakov, G.S. Shkabin, 2020). In this regard, it
cannot be denied that the ultimate goal of ordering
social relations, which carry a threat to other links
within society, is the emergence of criminal
responsibility. And not in its usual retrospective
understanding, but responsibility as a duty to treat
properly the criminal law prohibitions.
That is, any system having characteristics of a
mechanism of criminal law regulation is
characterized by the presence of elements of both
social and legal properties. These elements either
experience the socio-legal impact of a set of means
and methods, or they themselves have an impact on
the socio-legal relations. Meanwhile, we should not
forget that social relations are not the only ones and
not so much a set of rights and legitimate interests,
but also activities that arise in relation to these rights
and interests, correlating with obligations. (L.A.
Bukalerova, A.V. Ostroushko, N.E. Rustamov,
2016).
These social relations act as social matter,
experiencing the means of legal impact the criminal
law norm. That is, the rights and obligations in
criminal law relations are formed by the criminal law
norms. However, these relations have in their content
some actions, activities. This is the object of criminal
law relation that is tied to the activity of subjects. And
this activity can act as a scientific phenomenon
researched by us law enforcement intelligence
operations. (A.M. Pleshakov, Shkabin. 2018). In this
regard, another aspect of the relationship between
criminal law and law enforcement intelligence
operations is manifested – in the part of criminal law
relations, the material content may be law
enforcement intelligence operations, and the legal
form criminal law norms. Such kind of criminal law
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relations can be called intelligence criminal law
relations.
Thus, the term mechanism is also understood as a
certain way of functioning of social relations; the
system of means of direct impact of legal regulation
is a system of legal means, producing an effective
legal impact on social relations (S.A. Komarov,
1994).
Consequently, the responsibility and sanction part
of the mechanism of legal regulation of any branch is
located in the legal norm, without affecting the
general methodological postulates and requirements
relating to the subject and methods of legal
regulation, because the norm accepts indicating both
the range of social relations, which will be subjected
to legal impact, and those methods of impact that will
be applied.
The general theory of law does not deny the
postulate that a number of law branches has service-
supporting functions. The proof is the fact that in a
number of branches of Russian law (for example,
transport, environment, labor, forestry, land, tax,
etc.), there are no separate norms with a sanction
mechanism, because these functions are implemented
by criminal and administrative law. At the same time,
Tax and Labor Codes have provisions stipulating tax
liability, on the one hand, and the administrative and
criminal law have norms providing for sanctions
serving the main tort cases of tax aspect, on the other
hand. A similar picture is observed not only in some
branches of Russian legislation, but also in some
branches of Muslim law (L.V. Bertovskii, A.K.
Manna, M.Ya. Murkshtis, N.A. Selezneva, M.A.
Ignatova, 2017).
Thus, in the science of criminal law, there is a
problem of determining the scope and limits that are
necessary for law enforcement intelligence
operations. On the one hand, determining the scope
of criminal responsibility for illegal actions or illegal
law enforcement intelligence operations. On the other
hand, determining the scope of recognition of harm
during the implementation of law enforcement
intelligence operations, that is, as lawful ones.
Due to the bipolarity of harm assessment, the
intersectoral nature of the implementation of legal
regulation, the presence of relations between criminal
law and law enforcement intelligence operations as a
complex inter-legislative problem, its development
would be required within the framework of the
promotion of the scientific concept of "Theoretical
foundations of criminal law jurisdiction in law
enforcement intelligence operations".
Whether to choose the intensive or extensive way
of developing this concept is a question of the near
future. It should be noted that many years of intensive
research on this problem have brought some scientific
results, but they have not led to a legislative solution
of the problem. (L.V. Bertovskii, S.M. Kurbatova,
2020).
Intensive developments are being conducted in
the direction of methodological support for
interdisciplinary and intersectoral developments.
There is no denying that this kind of research is
undoubtedly in great demand, having obvious
scientific attractiveness. From a scientific point of
view, discovery is made precisely at the junction of
sciences and branches of cognition.
However, representatives of both sides (Natalia
A. Orekhovskaya, Alexey A. Chistyakov, Nina I.
Kryukova, Julia A. Krokhina, Yuri V. Ospennikov
and Elena V. Makarova. 2019) most often criticize
interdisciplinary researches. Often, both studies that
have already been conducted and those that are yet to
be conducted are declared unacceptable. This kind of
opposition and rejection can be explained both
psychologically and methodologically.
From the psychological point of view, fear is
aroused by everything new, previously unknown, and
unconventional. It is perceived as hostile. (S.S.
Oganesyan, S.K. Shamsunov, 2018). In this sense,
interdisciplinary researches are perceived with
greater difficulty.
Methodological assessment of interdisciplinary
works is often reduced to a negative assessment of the
methodology used by the author. In this case,
opponents often point to the disadvantages of using
the new methodology instead of its positive aspects
(L.V. Bertovskii, P.A. Lutcenko, I.V. Maslov, V.A.
Sinitsyn, A.A. Nichiporenko, 2020). Because of this,
the proposed complex problem begins to be
considered not as a single whole, but as two parts of
a single problem. While one part begins to be opposed
to the other part, and both parts to the whole.
The problem of identifying and establishing
relations between criminal and law enforcement
legislation belongs to this kind of problems. It seems
that the connection between these two branches is
quite tangible and obvious. The following arguments
can be raised in favor of this thesis:
First, materials identifying and exposing the
subjects involved in the commission of crimes, are
carried out by means of law enforcement intelligence
operations as well. Of course, the evidence obtained
operationally, is not a source of evidence.
Nevertheless, law enforcement intelligence
operations carried out properly lead to the exposure
of the perpetrators.
Intersectoral Assessment of Criminal Law Harm in the Implementation of Law Enforcement Intelligence Operations
297
Second, those persons who carry out law
enforcement intelligence operations are protected by
norms of criminal law, and those who cause harm in
the course of law enforcement intelligence operations
are held criminally liable.
Third, persons carrying out law enforcement
intelligence operations without special powers are
held criminally liable.
Fourth, when carrying out law enforcement
intelligence operations, the subject of such operations
can cause harm to the rights, freedoms and legally
protected interests of institutions, organizations and
individuals in circumstances that exclude the
criminality of his act. Harm is considered as non-
criminal, but it is the criminal law that determines its
non-criminal nature.
Finally, fifth point stating that the mere
existence of a criminal law carries out general
prevention, and this is of particular importance for the
law enforcement intelligence operations. Planning
law enforcement intelligence operations
is often
made on the basis of the potential to prevent criminal
behavior. For example, using law enforcement
intelligence means and methods, it is possible to
establish and expose various systems and schemes of
fraudulent actions (L. Bertovskii, E. Petuchov, L.
Suhanova, 2019). This is especially relevant to the
budgetary sphere; therefore, the role of criminal law
and law enforcement intelligence prevention lies in
the fact that the measures of law enforcement
intelligence operations are aimed at preventing the
commission of crimes. And the purpose of criminal
law is to achieve non-criminal behavior. That is, in
this case, the purposes of law enforcement
intelligence operations and the criminal law coincide
with each other.
The above circumstances are clearly manifested in
the implementation of law enforcement intelligence
measures, judged by the courts as either quite
legitimate, or as a provocation-criminal.
the introduction into the text of the criminal code
of the russian federation (1996) of norms not
previously known to russian criminal law
surely
opens up the broadest prospects for the study of new
criminal law institutions.
but we have not witnessed
a relatively large number of works devoted to a
completely new topic. to a greater or lesser extent,
this applies to the criminal law assessment of such a
phenomenon as crime provocation.
the presence in the current code of articles
regulating the issues of punishment for provocation
of bribery or commercial bribery (article 304 of the
criminal code of the russian federation)
does not fully
solve this problem for a number of the following
circumstances. firstly, should the introduction of the
mentioned norm be considered only as a special case
of falsification of results of law enforcement
intelligence operations, or is it a knowingly false
accusation, which in this case is combined with
falsification of prosecution evidence? secondly, it is
not quite clear why we are talking about criminal
responsibility only for provocation of bribery or
commercial bribery? thirdly, the relationship between
provocation and incitement to commit a crime is not
quite clear. finally, in these situations, the further fate
of the provoked person is not clear: whether he/she
will be released from criminal responsibility; whether
the criminal responsibility will be mitigated against
him/her; what should be done by the criminal justice
further, if the crime committed by the provoked
person
is the sole consequence of the actions of the
provocateur;
to what limits does the operation
experiment and similar measures extend; is it
permissible for law enforcement officer not to prevent
the forthcoming crime, but to wait for its beginning to
obtain tangible evidence; when this will allow
applying proper means of state-legal coercion to the
guilty person, etc.
These circumstances are quite correlated with
general theoretical criminal law researches and are
generally approved by representatives of the law
enforcement intelligence science. In this case,
consideration of this problem as certain artificially
integrated problem does not give effective results
and, first of all, it affects the quality of law
enforcement intelligence operations.
Recently we have managed to overcome a certain
negative perception of stimulation of obtaining
results of law enforcement intelligence operations by
means of criminal law, as well as by application of
norms on extreme necessity in the process of
implementation of law enforcement intelligence
operations. We have attempted to assess the harm
caused in the course of law enforcement intelligence
operations by means of criminal law exactly in order
to identify additional arguments in support of the
specified scientific position.
4 CONCLUSIONS
Thus, the relationship between criminal law and law
enforcement intelligence operations can be traced in
the issues of criminal law regulation of law
enforcement intelligence operations, despite the fact
that they violate a number of constitutional rights and
freedoms of human and citizen, are implemented on
the basis of and within the framework of the federal
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legislation on law enforcement intelligence
operations and other bylaws, and therefore
recognized as lawful from the perspective of criminal
law.
In addition, we should not forget that causing
harm in the course of law enforcement intelligence
operations may be inflicted within the criminal law
institute of reasonable risk, and this also excludes
criminality of an act. In this case, this issue is
regulated by norms of criminal law.
Obviously, risk is never considered reasonable if
it knowingly involves a threat to the lives of many
people. And all of these circumstances relate to
criminal law. At the same time, the theory of law
enforcement intelligence operations
recognizes the
fact that such operations are associated with increased
risk, and therefore a concept of operational risk,
which clearly demonstrates the connection of law
enforcement intelligence operations with the criminal
law, has been developed.
Consequently, any type of law enforcement
intelligence operations
that cause harm must be
considered either from the perspective of
administrative law or criminal law.
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