Conditions for the Legitimacy of a Justified Risk in the

Implementation of Law Enforcement and Crime-detection

Operations

Olesya Nikolaevna Kulikova

and Muhammad Nagi oglu Imanli

Saratov State Law Academy, Smolensk Branch, Smolensk,

Russian Federation

The Institute of Human Rights, the Azerbaijan National Academy of Sciences, Baku, Azerbaijan

Keywords: Justified risk, circumstances precluding the criminal nature of the action, conditions for the legitimacy, law

enforcement and crime-detection operations (activities), responsibility of operational officers.

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Abstract:

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The professional activity of law enforcement operational officers of the Russian state is associated with the

performance of complex tasks in a crime and socially unfavorable environment. The performance of their

duties is associated with a constant risk that can entail the onset of socially dangerous consequences that harm

specific objects of criminal law protection. In the event that high-risk actions are committed by an officer

involved in law enforcement and investigative activities, the conditions for the legitimacy stipulated by the

criminal law of the Russian Federation must be observed. The aim of the study is the institution of the justified

risk and the issues of responsibility for exceeding the conditions of legitimacy by operational officers who

acted under conditions of such risk. The objective of the study is to determine the conditions for legitimacy

of high-risk actions by operational officers and identify legislation gaps in the legal institution under

consideration. The methodology of the research proceeded from the analysis, generalization and

systematization of legal norms governing the issues of justified risk in the implementation of operational law

enforcement and crime detection activities, real life examples, educational and research materials. The main

conclusions of our research reflect the gaps in legislation on the topic under consideration and our own

conceptual framework in this research area.

1 INTRODUCTION

The circumstances, that preclude criminal liability in

connection with the exclusion of the criminal danger

of the committed act are stipulated in the current

criminal law of Russia. According to outward signs,

such acts are similar to criminal ones and hence penal,

but regarding the specific circumstances, they can be

treated as a social benefit because of their final social

value.

Justified risk is one of the circumstances

precluding the criminal nature of the act, in

accordance with the current Criminal Code of the

Russian Federation. So, the actions of the individuals

undertaking the risk are characteristic for many

spheres of public service, including law enforcement.

Law enforcement and investigative activities should

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https://orcid.org/0000-0001-8375-7671

be singled out as a special area of reasonable risk,

characterized not only by external similarity with a

socially dangerous, illegal orientation, characteristic

of many other circumstances, the implementation of

which excludes criminal liability in view of their

social and legal usefulness, but by the ultimate goal

towards which the actions of the risking person are

directed.

In general, the ultimate goal of an operational

officer when performing a justified risk is to suppress

criminal activity at the very moment a person

commits a crime, as well as to prevent socially

dangerous actions in the future.

From the legal standpoint, a justified risk while

implementing law enforcement and investigative

activities is the fulfillment by an operative officer of

his legal (professional) duties and the exercise of his

306

Kulikova, O. and Imanli, M.

Conditions for the Legitimacy of a Justiﬁed Risk in the Implementation of Law Enforcement and Crime-detection Operations.

DOI: 10.5220/0010635900003152

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

306-313

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

subjective right in alignment with the requirements of

the position held. Professional risk can be defined as

a line of duty, the fulfillment of which is an official

and moral obligation of the law enforcement and

investigations officers.

The issues of justified risk, its legal nature,

principles of implementation, conditions for the

legality of the application of such acts were actively

researched by such scholars as A.N. Ignatov (2000),

Yu. Krasikov (2000), L.L. Kruglikov (2005, 2012),

S.S. Zakharova (2005), V. I. Samorokov (1993), V.

S. Ishigeev (2020), V. L. Lapsha (2020), A. Y.

Bondar (2020), M. A. Yaroslavsky (2020), A.I.

Plotnikov (2016), A. Y. Grishko (2001), K.E. Witt

(2012), A.S. Shumkov (2007). These works reflect

the criminal and legal characteristics of justified risk

from the standpoint of the current domestic criminal

legislation.

The pivotal works of the applied nature on the

conditions for the legitimacy of a justified risk in law

enforcement and investigative activities were

implemented by M.I. Katbambetov (2013), G.S.

Shkabina (2017), A.S. Shumkova (2006), Dudulina

N.V. (2017). They reflect the main conceptual

approaches of the current legislation of the Russian

Federation on law enforcement and investigative

activities, activities of operational officers,

professional service in the implementation of Federal

legislation. Foreign German authors also cover the

applied areas of activity of government officials -

H.G. Sunderman (1984), representatives of the NIS

countries pay significant attention to topical issues of

law enforcement operational activities - E.A.

Didorenko S.A. Kirichenko B.G. Rozovsky (2000).

2 MATERIALS AND METHODS

The research is based on the criminal law standards

on justified risk and criminal liability for its violation,

other Federal legislation of the Russian Federation,

regulating relations during the performance of law

enforcement and crime detection operations.

The core of our research are academic papers of

domestic researches of the modern criminal cycle,

textbooks from different periods of time, interpreting

with a certain approach the current legislation on the

issues of justified risk. Along with them, the

empirical basis was the analysis and generalization of

materials from judicial practice on the power abuse

and subsequent responsibility of the risk-taker.

Our research is a comprehensive research of

justified risk during implementation of operational-

investigative activities by employees of state

authorities. It covers research, educational and

applied aspects of the legitimacy of justified risk,

which excludes criminal liability while performing

high risk professional actions.

In the course of our research, we identified the

following gaps in current legislation: 1) in terms of

the concept of justified risk, the conditions for the

legitimacy of professional risk in the criminal law of

the Russian Federation; 2) in the concept as well as

legal and procedural aspects of the operational

environment in the Federal legislation governing the

implementation of law enforcement and investigative

operations in Russia.

3 RESULTS AND DISCUSSION

The performance of professional duties under

justified risk is included, in the opinion of the

legislator, in the concept of justified risk, and does not

provide any legal responsibility for the officer

undertaking the risk on conditions of its legitimacy.

Thus, a justified risk while performing law

enforcement operations is included in the number of

lawful acts, treated by criminal law as circumstances

excluding the criminal nature of the act.

The content of a justified risk to be recognized as

such, reflects the absence of an illegal purpose,

willful damage to law-protected interests and

includes the exercise of professional and legal duty

by an officer, subject to the conditions of lawfulness

necessary from the standpoint of the Criminal Code

of the Russian Federation. When an operative officer

performs official activities, legal liability, including

criminal liability, does not arise in the latter case.

We consider justified risk in the context of

performing professional activities by an operative

officer, whose authority is outlined by the necessity

to perform law enforcement operations, acting at high

risk, often with a narrow line of criminal legal

protection of an object at the current operational

environment.

Justified risk in law enforcement operations is a

socially useful value carried out by officials of the

relevant law enforcement agencies of the state, aimed

at achieving the goals of crime prevention,

identification of a number of persons involved in

criminal activity. Subject to the conditions of legality

stipulated in the criminal legislation, federal laws and

departmental legal acts, legal liability for officers

who acted in an operational environment, while

performing law enforcement operations activities, is

excluded.

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3.1 The Essence of Justified Risk in the

Performance of Operational Crime

Detection Activities the Essence of

Justified Risk in the Performance

of Operational Crime Detection

Activities

Justified risk should be defined in terms of legislative

position, as well as research, educational and applied

points of views. In particular, the practical meaning

reflects the substantive and legal characteristics of the

justified risk in the implementation of operational

investigative activities. The legislative definition

(Art. 41 of the Criminal Code of the Russian

Federation – herein after CC of the RF) includes the

conditions of legality, the limits of criminal liability.

In accordance with Art. 41 of the CC of the RF the

infliction of harm to the interests protected by

criminal law, while at justified risk to achieve a

socially beneficial goal is decriminalized. In the

educational literature, the following concepts of

justified risk based on current legislation are

proposed. According to L.L. Kruglikov justified risk

is a legitimate creation of danger of the ensuing of

consequences provided for by the criminal law in

order to achieve a socially useful result in any field of

human activity that cannot be obtained by

conventional means and methods (Kruglikov L.L.,

2012). The author points out that the law outlines the

conditions for the lawful behavior of a subject in a

justified risk environment, and harm can be caused as

a result of a poorly calculated experiment, ill-

considered measures when releasing hostages, etc.

(Kruglikov L.L., 2005).

The theoretically substantiated definition of

justified risk, with the concept of which we agree, is

the opinion of A.N. Ignatov and Y.A. Krasikova. The

authors note that in the Criminal Code of the Russian

Federation the term "justified risk" is indicated as

relevant and correct from the point of criminal law.

The 1991 Fundamentals of Criminal Legislation used

the concept of "justified professional and economic

risk", which decreased the scope of its application.

Therefore, the application of this concept by the

criminal law for an officer, performing such

professional activities as a law enforcement, would

not be covered by the provisions of the law and the

issue of the legality of the actions of the one who

takes the risk would not determine the limits and

conditions of the legality of the service of operational

officers.

In the textbooks, the authors indicate that the

source that generates the danger of prejudicing law-

protected interests, when at a justified risk, is the

actions of a person himself, deliberately deviating

from the established safety requirements to achieve a

socially useful goal (Ignatov A.N., Krasikov Y.A.,

2000)

In his dissertation research A.S. Shumkov

proposes the following concept of justified risk. This

is an act that relates to the violation or non-

observance of special rules, aimed at achieving a

socially useful objective that cannot be achieved by

other means (not associated with violation or non-

observance of special rules), which, despite the

sufficient precautions taken by the person, led to the

infliction of damage to the interests protected by

criminal law (Shumkov A.S., 2007). According to

another scientific definition S.S. Zakharova in her

works assumes that a justified risk should be

understood as an objectively necessary, prepared,

acceptable act by a person aimed at achieving a

socially useful goal, implemented in a situation of

uncertainty with the possibility of choosing an

alternative option of behavior, which, despite the

measures taken, caused harm to the interests

protected by criminal law (Zakharova S.S., 2005).

In our opinion, it is relevant to cite

M.I.Katbambetov's proposal, which indicates the

necessity to amend Art. 41 of the Criminal Code of

the Russian Federation by the provision: "It is not a

crime to inflict harm to the interests protected by

criminal law by a person exercising official powers"

(Katmambetov M.I., 2013). The author points out the

possibility of introducing a separate article 411 into

the criminal law, dealing with harm infliction during

the exercise of official authority. The legislative

inclusion of the relevant rule of law is confirmed by

the results of research by V.S. Ishigeev, V.L. Lapshi

and A.Y. Bondar. In particular, it is indicated that in

the daily activities of law enforcement officers, it is

quite possible that they create a risk of inflicting harm

to law-protected interests through the unjustified use

of weapons (Ishigeeva V.S., Lapshi V.L., Bondar A.

Y., 2020).

In consideration of the foregoing, we propose the

following concept of the circumstances excluding

criminal liability. Justified risk is the legitimate

creation of a potential danger to the objects and the

interests protected by law in order to achieve a

socially useful result that could not be obtained by

ordinary, risk-free measures.

When defining a justified risk from a practical

point of view, its main features should be determined

as: 1) the compulsion to perform risk-related actions

2) the legislative framework of risky measures 3) the

objective of the justified risk should be socially and

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publicly beneficial 4) the actions of the officer taking

the risk should be officially regulated by service

instructions according to the type of public service.

The practical importance is reflected in the conditions

of the legitimacy of a justified risk when a law

enforcement officer performs operational tasks, while

carrying out operational crime detection activities.

According to the current Federal Law of

12.08.1995 No. 144-FZ "On Law enforcement

operations", law enforcement operations are defined

as the type of activity carried out publicly and secretly

by the operational units of state bodies authorized by

the Federal legislation of the Russian Federation,

within their powers through the conduct of

operational crime detection measures to protect life,

health, human and civil rights and freedoms,

property, ensure the security of society and the state

from criminal encroachments. These activities are

also aimed at ensuring and protecting human rights in

the private sphere, affecting personal secrets, family

secrets, the private life of an individual, the

inviolability of a citizen's home and privacy of

correspondence. According to Art. 5 of the mentioned

law, a person whose guilt in committing a crime has

not been proven in accordance with the procedure

established by law, i.e. with regard to whom the

initiation of a criminal case was refused or the

criminal case was terminated due to the absence of a

crime event or due to the absence of corpus delicti in

the act, and who has the proof of operational-search

activities being conducted with respect to him and

believes that his rights were violated, he has a right to

demand from the body carrying out operational crime

detection activities, his private information received

by officials within the limits allowed by the

requirements of conspiracy and excluding the

possibility of disclosing state secrets. The goals of

operational and investigative work in the context of

the implementation of the rules of the criminal law of

RF in the system of circumstances precluding

criminality of acts reflect the constitutional

provisions in the field of rights and freedoms of

citizens. They belong to every person from birth in

accordance with Art. 17 of the Constitution of the

Russian Federation. These are such types of rights as

life and health, personal dignity and inviolability of a

person, physical freedom and freedom to realize

thoughts, property and inviolability of the home, etc.

(Chapter 2 of the Constitution of the Russian

Federation).

For example, in the operational activities of the

federal security services, there are situations when, in

order to protect people's lives, they are forced to take

actions, which can cause real harm, but still outside

the framework of the rules of law of necessary

defense and extreme necessity. Infiltration and

controlled delivery are examples of such risky

operational measures. The source speaks about the

activities of not only Russian special services. For

example, in the American publications about a

policeman who infiltrated the drug circulation circle

as a small businessman, but as a result his activities

contributed to the prosecution of several dozen large

drug dealers. It is obvious that in his actions there are

elements essential to the crime offence that do not fall

under extreme necessity or necessary defense.

Subsequently, under the criminal law of New York,

his actions were recognized within the frame of the

legitimate provocation. And so, in many spheres of

human life, numerous similar cases can be found.

3.2 Conditions for the Legitimacy of a

Justified Risk While Performing

Law Enforcement Operations

Justified risk in the system of circumstances that do

not entail criminal liability due to their general social

value is an independent type, for which, the

conditions of legality should be determined in the

theory of criminal law and the practical activities of

operational units. They determine the legal

framework for recognizing the actions of the one who

takes the risk as socially beneficial or justifiable and,

in this regard, determine the grounds for bringing to

legal responsibility or exemption from it. The

conditions for the legitimacy of a justified risk while

performing law enforcement operations are based on

the job regulations (instructions) of the operational

officer, the legal framework of the relevant unit

(service) in compliance with the Constitution of the

Russian Federation.

We consider that while performing law

enforcement operations activities, the following

conditions for the legitimacy of a justified risk for

operational units officers should be distinguished: 1)

the actions of the officer who takes the risk should be

caused by the appropriate operational situation, which

acts as a pretext and a legal basis for actions in the

conditions of justified risk. The concept of the

operational situation is not stipulated in the

legislation, therefore, from the standpoint of the law

enforcement officer, it can be interpreted variably.

This is a set of conditions that directly or indirectly

characterizes the objective reality during performance

of the law enforcement operations or a set of factors

and conditions in a certain territory at a certain time,

taken into account by operational units in the

implementation of the operational or crime detecting

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operations. Along with the fact that the Russian

legislation does not provide the concept of the

operational situation, the definition of the subjects of

its implementation is also ambiguous. In the

organizational essence, it is regarded as a type of

management activity, delegated to the heads of

various levels and structures in the operational

services of state power. And, thus, not every operative

officer has a managerial function according to the

official regulations while performing current official

duties, including dangerous professional activities,

while on operational investigative work; his activities

are considered a form of performing official duties or

the functions of a power officials. Therefore, we note

that at the legislative level it is necessary not only to

define the concept of an operational environment, but

also to indicate its limits, conditions and procedural

forms, the scope of its main and other participants,

and its legal consequences.

2) The performance of operational-search

activities with a justified risk is characterized by risky

actions or risky inactivity, directly provided in the

service instructions and aimed at the goals provided

by the operational crime detection and other federal

legislation of Russia. These goals (or at least one of

them) determine the advantage of such an act in

achieving personal, public or certain state benefits.

They are aimed at a socially useful result not only

from the point of legal concepts, but also from other

human and public-state interests and benefits. At the

same time, social value does not come for an

operational officer, but for the performance of

professional duties, for the purpose of carrying out an

operational crime detection activity. For example, in

accordance with Art. 39 of the Criminal Code of the

Republic of Azerbaijan it is not a crime to inflict harm

on objects protected by law at a justified risk to

achieve a socially valuable goal (39.1).

3) It is impossible for an operational employee to

take a legitimate justified risk by ordinary, non-risk-

related actions This is due to such a professional and

legal situation when an official could perform his

professional duties in the usual way while performing

an operational law enforcement activity, but he

preferred to take the risk. Such risk thereby caused

harm to certain objects and interests. The reason for

the risky actions could be a negligent or dismissive

attitude to the situation, an incomplete understanding

of the nature and danger of the current situation, the

sufficiency of professional skills or experience of the

operational officer.

So, e.g. - an extract from a attorney's appeal on the

first instance judgment by the Tagansky District

Court of Moscow dated April 17, 2017.The court

referred to the testimony of O. and two officers of the

internal affairs bodies about the circumstances of the

controlled purchasing operation, as well as to the

materials of the operational-search activities.

“Meanwhile, the Plenum of the Supreme Court of the

Russian Federation, in paragraph 14 of its Resolution

of June 15, 2006 No. 14 on judicial practice in cases

of crimes related to drugs, psychotropic, potent and

poisonous substances, explained that the results of

ORM (Law enforcement operations) can be accepted

as a basis for the decision if they are received in

accordance with the requirements of the law and

indicate that the offender’s intent to illicit trafficking

of illegal drugs or psychotropic substances, formed

regardless of the operational officers activities, and

that the offender has taken all the preparatory actions

necessary for the commission of the unlawful act."

In the papers of Ukrainian authors, we found the

following scientific and practical research on this

issue. The borderline between justified and

unjustified risk is very flexible, since it is almost

impossible to anticipate all the circumstances in the

process of implementing a plan. If this were possible,

then the risk itself, both justified and not justified,

would be excluded. Nevertheless, the criminal

legislation of the Azerbaijani state echoes the Russian

one and defines in Art. 39 that the risk will be

recognized as justified if its goal could not be

achieved by non-risk actions (inactivity).

The characteristics of operational-search work

that justify professional risk do not clarify the

situation, when there is no freedom to choose more

favorable circumstances, and the solution of a law

enforcement task cannot be achieved by other, usual

means without risk, or when there is no statutory

regulation for the use of special forces, methods of

work and an operational officer has to use the

principles of professional ethics, morality,

operational praxeology in extreme situations. Given

the currently prevailing principle, according to which

a person is automatically found guilty of not

predicting in advance the onset of unforeseen adverse

consequences (“did not foresee, but should have

foreseen”), one cannot at all talk about the existence

of any guarantees of legal protection of the operative

worker. acting under conditions of risk (Didorenko

E.A., Kirichenko S.A., Rozovsky B.G., 2000).

4) The actions of the individual who takes the risk

should not be associated with deliberate (knowing)

infliction of harm to the lawfully protected interests,

benefits during the performance of the law

enforcement operations. If any socially dangerous

consequences that incur criminal liability, have

occurred, then when considering this criminal case in

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the course of the investigation, it is necessary to

determine the direction of intent, accompanied by the

appropriate actions of the operational officer, on the

obvious (in his personal understanding) infliction of

a certain type of harm to a specific object (subject).

The object should be obvious to the officer, its social

and legal or other characteristics should be clear. As

well as a potentially possible type of harm, which

must inevitably encroach on certain benefits, or be

close to the imagined, but definitely capable of

entailing dangerous consequences. The illustration of

this is an excerpt from the cassation ruling of the

Judicial Collegium for Criminal Cases of the

Supreme Court of the Russian Federation, where an

attorney indicates a violation of the requirements of

the criminal procedure law with respect to carrying

out an operational experiment and violation of the law

requirements during the experiment, namely, at the

moment of issuing resolution approving law

enforcement and investigation operations the officer

was not in possession of any data indicating that the

client was preparing to commit a crime. This

determines the form of deliberate guilt for knowingly

causing harm while performing operational

investigative activities.

It should be taken into consideration in relation to

non-recognition of a justified risk as such from the

standpoint of Part 3 of Art. 41 of the Criminal Code

of the Russian Federation, that, if a priori for the

operational officer, his actions could entail a threat to

lives of many people. Notwithstanding this fact,

social values are indicated in the law, but their

characteristics are not stated. In particular, we

consider it relevant to present arguments in the works

by A.I. Plotnikov, who points out that the concept of

"many people" cannot be strictly defined. Some

lawyers consider "many" in this context as - at least

three. However, the number three does not

correspond to the concept of "many", but to the

concept of "several". In cases when legislation refers

to several protected values, other expressions are

used: “death of two or more persons” (e.g. part 3 of

article 264 of the Criminal Code of the Russian

Federation). In our opinion, “many” means several

times more than “three”, at least not less than 10.

(Plotnikov A.I., 2016).

5) When performing official duties, an operational

officer acting in high risk situation must take the

necessary measures to prevent possible, potential or

likely harm. In so doing, these measures should be

recognized as sufficient to act under risk conditions,

and the risking person's assessment of the actions

taken to prevent harm. In other words, in the current

operational situation, the officer must anticipate the

possible consequences, determine the danger they

expose and correctly determine the modus operandi

that will allow to minimize the consequences should

they occur in the perception of the officer acting at

risk.

At the very least, an officer on duty acting at risk

should at most resort to such actions that minimize

the consequences. It is obvious that in practice it is

not easy to anticipate all possible and potential

consequences and act accordingly in the criminal and

potentially dangerous environment.

The specified condition of legality is associated

with the previous one, that is, with premeditated

infliction of harm in the course of operational crime

detection activities.

6) The actions of the individual who takes the risk

must be accompanied by his own skills, experience,

physical and other capabilities, that will be

instrumental in perfirming justified actions in the

current situation and will comply with the

requirements of the law and the interests of the

service. This is determined by the legal sources of the

relevant operational units of law enforcement (police,

execution of punishments, customs authorities) and

military (security services) state bodies.

As one of the domestic researchers notes: "The

risk in operational law enforcement activities lies in

the fact that it is necessary to take operational

measures to prevent or investigate dangerous crimes,"

when there is a real possibility of adverse

consequences, both for the operational officer himself

and for other persons "(Shumkov A.S., 2006). In a

more detailed manner, the concept of justified risk

consists in the necessity to carry out operational law

enforcement measures thus putting the operative

officer in constant professional risk, because a

successful outcome is not always guaranteed. As the

author notes, "... the objects exposed to risk during the

implementation of operational-search measures are

very different." These are the legally protected

society and state interests, individual interests,

including the persons being checked, undercover

officers, operative officers, prestige of the operational

service as a whole.

3.3 Exceeding Justified Risk Limits by

the Operational Officers

Subject to the specified conditions of legality of a

justified risk by the operative officer, responsibility

does not arise during performance of the risky

actions, regardless of the achievement of the useful

goal. An exception is the onset of legal liability when

the limits are exceeded, for example, during the

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actions of the individual taking the risk, when the

obvious goal is the onset of consequences protected

by law.

In view of the above, we suggest the following

definition for the legitimacy conditions of a justified

risk in the implementation of operational law

enforcement and crime detection activities. The legal

limits of justified risk in operational activities from

the standpoint of the Russian criminal law are the

conditions of legality determined by the criminal law

of the Russian Federation for performance of official

duties by operational officers within the limits of their

service instructions in order to achieve the goals of

operational law enforcement and crime detection

activities.

In case of exceeding the legitimacy conditions

of justified risk while performing operational-search

activities, officials may be subject to disciplinary or

criminal liability. Criminal liability takes place in the

event of a significant violation of citizen rights, their

legitimate interests, significant harm to public

objects, relations and other interests of state

institutions. If less significant harm or damage than

those stipulated by the criminal law has been caused

and less serious consequences have occurred than

those provided for in the relevant articles of the

Special Part of the Criminal Code of the Russian

Federation in respect to materially defined crime,

though internal local acts of the law enforcement

service were violated, the operative officer may be

subject to disciplinary liability.

3.4 Justified Risk of an Operative

Officer in the System of

Circumstances Precluding

Criminality of the Act

One of the features of justified risk, associated with

its official (professional) orientation (goal), is social

admissibility. It includes such criminal law

characteristics as public value and acceptance of

perpetration. At the same time, public value is defined

by the goal of operational law enforcement activities,

which must strictly comply with the fundamental law

of the Russian state and the Criminal Code in terms

of the framework for implementation, as well as the

goal of the risk-taking person’s actions. This refers to

compliance with the conditions of legality and the

onset of criminal liability in case of exceeding the

permissible lawful measures. According to the

current legislation of the Russian Federation, the

operative law enforcement and crime detection

measures are aimed at protecting the interests of an

individual, his main benefits, property and public

security in the state (Article 1 of the Federal Law of

12.08.1995 No. 144-FZ "On Law enforcement

operations"). The acceptability of justified risk

actions is justified by the official duty instructions of

the operational officer of a law enforcement agency.

The duty instructions are approved by the head of the

federal executive body and regulate professional

activities in the relevant position in the state service.

One of the key elements of justified risk as one

of the circumstances excluding the criminality of an

act is the subjects participating, and rather involved in

it. The subject of such a risk, on the one hand, is a

person (s) under investigation and one or a set of

operational-search measures is being carried out in

relation to them. And this participant of the justified

risk has to be affected because it is assumed that he

participated in the commission of a crime or was

otherwise involved in it. For example, aiding criminal

acts. On the other hand, a subject who voluntarily

takes risks while performing his professional duties in

view of the position held in the operational division

of a law enforcement agency is an official performing

operational law enforcement and search work. The

actions of this subject of justified risk are aimed at the

preventive function stipulated by the legislation and

provided by the state authorities.

The preventive function is aimed both at

preventing a specific criminal manifestation at the

time of the risky actions, and at its general preventive

effect, reflected in the criminal and penal legislation

of the Russian Federation - the prevention of crimes

(part 2 of Art. 43 of the Criminal Code of the RF and

part 1 of Art. 1 of the Penal Code of the RF).

4 CONCLUSIONS

Justified risk is a legitimate creation of a possible-

potential danger to objects and interests protected by

law in order to achieve a socially valuable result that

could not be obtained by ordinary, risk-free means.

Justified risk during performance of operational

law enforcement and crime detection activities is a

legitimate risky action of an operational officer aimed

at achieving the objectives of his activities provided

there is no harm inflicted to important objects

protected by law.

The legal limits of justified risk in operational

activities are the conditions of legality determined by

the criminal legislation for the performance of service

duties (job instructions) by an operational officer of a

state authority in order to achieve the goals of

operational law enforcement and crime detection

activities.

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