Improvement of Interdisciplinary Relations of Criminal Law and

Operative Search Activity

Gennadiy S. Shkabin

and Alexander M. Pleshakov

Research institute of the Federal Penitentiary Service of Russia, Moscow, Russia

Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikotya, Moscow, Russia

Keywords: Criminal law, operative search activity, interdisciplinary relations, secret police operations, crime provocation.

Abstract: In Russia, several independent sciences are engaged in the study of methods of crime counteraction. They

include criminal law and the doctrine of operative search activity. The links between these two branches of

knowledge are not well understood. At the same time, during the implementation of secret police activity,

situations often arise when officers are forced to perform actions similar to a crime. This article is devoted to

the analysis of such situations. The aim of the study is to develop proposals for improving the interdisciplinary

relations of criminal law and operative search activity. In order to achieve it, the following tasks were solved:

a retrospective analysis of the dynamics of the development of links between criminal law and operative

search activity was carried out; the state of legal support for causing harm during operative search activity

was studied; proposals for amendment of the current legislation were made. The research is based on

comparative legal, sociological and formal logical methods. Based on the results of the study, the authors

proposed the de lege ferenda norm, establishing criminal lawfulness for causing harm during operative search

activity. The obtained results contribute to the development of ties between the two sciences and the

improvement of the activities of law enforcement agencies in crime counteraction.

1 INTRODUCTION

A crime, as a social phenomenon, constantly changes

and is in dynamics. New ways of crimes commission

appear regularly, and previously known techniques

are improved. In such conditions, a state cannot use

the same methods of counteraction as it did many

years ago. In this regard, the covert activity of law

enforcement agencies, aimed at crimes detection, as

well as identifying the persons who committed or

committing them, acquires special relevance.

It should be noted that the legal doctrine of many

Western states has long known the problem of legal

justification for limiting human rights and

committing acts similar to a crime during secret

operations. Such situations are considered from the

position of the concept of “necessary evil”. One of its

founders is Gary T. Marx, who published a book

“Undercover: America’s Police Investigation” in

1988 (Gary T. Marx, 1988). Its essence lies in the fact

that it is necessary to recognize admissible “evil”,

which is expressed in deceit or harm to objects of

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criminal law protection by law enforcement officials

in order to bring to criminal responsibility the persons

who have committed crimes (Jacqueline E. Ross,

2002). In this aspect, one should agree with V.

Murphy that values are shifting towards utilitarianism

in modern society, when collective security is above

the rights and interests of an individual (Murphy, B.,

2020). In the Russian legal doctrine, this direction is

relatively new and insufficiently studied (Shkabin

G.S. 2020).

The purpose of this study is to formulate specific

proposals for improving the interdisciplinary

relations of criminal law and operative search activity

(hereinafter – OSA). In order to achieve it, the

following tasks were solved: the history of the

development of relations between criminal law and

operative search activity was studied; the analysis of

the state of legal support for causing harm during

covert operations of law enforcement agencies was

made; the author’s version of changing the current

criminal legislation is proposed.

344

Shkabin, G. and Pleshakov, A.

Improvement of Interdisciplinary Relations of Criminal Law and Operative Search Activity.

DOI: 10.5220/0010641500003152

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

344-347

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

 2021 by SCITEPRESS – Science and Technology Publications, Lda. All rights reser ved

2 MATERIALS AND METHODS

During the research, regulatory legal acts of various

levels were studied: international conventions and

agreements, laws of the Russian Federation, countries

of Europe, Asia and America. In addition, the

scientific works of both Russian and foreign scientists

– specialists in the field of criminal law and operative

search activity were used in the article. Also, the

results of a sociological study were taken as the basis.

For the period from 2009 to 2020, the authors

interviewed 502 respondents, including law

enforcement officials, judges, scientists and academic

staff. The materials of 283 criminal cases were

studied, in which the results of operative search

activity, considered by the courts from 2001 to 2020,

were used.

Comparative legal, sociological and formal

logical research methods made up the methodology

of this article.

3 RESULTS AND DISCUSSIONS

For a long time, it was stereotypically believed that

the branch of criminal law does not in any way

influence operative search activity in the Russian

Federation. On the contrary, many scientists believed

(and some of them still think so) that only the last

term serves to solve the problems of criminal

legislation. It is due to the fact that the covert activity

of law enforcement agencies in crime counteraction

was outside the scope of discussion of the general

scientific community for a long time.

Scientific researches of the problems of the

relations between criminal law and OSA was one-

sided. In the Russian doctrine of criminal law, which

is a priori open, these issues were not actually

considered. At the same time, the need for them was

of an objective nature. Therefore, in the second half

of the twentieth century, in the already incipient

science of OSA, dissertations of complex and system-

forming significance began to be defended.

This situation lasted until 1992, when the RF Law

“On Operative Search Activity in the Russian

Federation” was adopted. After some time, it was

replaced by the Federal Law “On Operative Search

Activity” (hereinafter – the Federal Law “On OSA”)

in 1995. It was from this moment that the large-scale

legal regulation of the OSA actually begins, which,

accordingly, gave a new impetus to the corresponding

scientific developments. V.I. Mikhailov (Mikhailov

V.I., 1995; Mikhailov V.I., Fedorov A.V.) and A.Yu.

Shumilov (1995) were the first scientists who devoted

their open works to the relations of criminal law and

OSA.

The obvious insufficiency of comprehensive

interdisciplinary studies of the problems of OSA led

to systemic contradictions in the previous period. So,

in the operative search legislation, norms appeared

that did not correspond to the subject of its regulation.

We are talking about two legislative provisions. The

first is Part 4 of Art. 16 of the Federal Law “On OSA”,

contains a special type of circumstance that excludes

the criminality of a deed of officials who carry out

OSA and caused harm. In foreign literature, this kind

of action is called a “sanctioned crime” (Brendon

Murphy, 2016) or harm to a third party during

undercover police operations (Joh, Elizabeth E. and

Joo, Thom-as Wuil, 2015), which usually consists of

infiltrating in organized criminal groups

(Kruisbergen EW, 2017). The second provision is

Part 4 of Art. 18 of the Federal Law “On OSA”, a

special type of exemption from criminal liability for

members of a criminal group who cooperate with the

authorities that carry out OSA. Based on the system

of Russian law, the above mentioned legal provisions

should be provided exclusively in the Criminal Code.

Due to their branch inconsistency, these norms

have practically never been applied. According to the

studied materials of criminal cases, in which the

declassified results of OSA were used, not a single

fact of the application of Part 4 of Art. 18 FL “On

OSA” was not established. Only one case of the

application of Part 4 of Art. 16 of the Federal Law

“On OSA” was recorded in judicial practice.

At the same time, attention should be paid to the

fact that the criminal legislation of some former

republics of the USSR already has norms regulating

the legality of causing harm during covert operations

of law enforcement agencies (Belarus, Kazakhstan,

Kyrgyzstan and Ukraine). The legal grounds for their

appearance were international documents (the UN

Convention against Corruption, the UN Convention

against Transnational Organized Crime).

Recommendations on the harmonization of the

legislation of the member states of the Collective

Security Treaty Organization, which indicate the

advisability of supplementing national criminal law

with a provision on an independent circumstance that

excludes the criminality during operative search

activity was adopted in St. Petersburg.

Thus, after the adoption of laws on operative

search activity in Russia, a situation arose when there

was objectively a need for criminal-legal regulation

of operative search activity and at the same time there

were no corresponding norms in the Criminal Code.

Improvement of Interdisciplinary Relations of Criminal Law and Operative Search Activity

345

Due to the lack of direct criminal law regulation of

such situations and in the presence of a natural need

for it, a domestic law enforcement officer has long

used the analogy of the norms of criminal law. Such

actions were not assessed under Part 4 of Art. 16 of

the Federal Law “On OSA”, and according to the

rules of Art. 39 of the Criminal Code of the Russian

Federation, as an emergency or Art. 41 of the

Criminal Code of the Russian Federation, as a

reasonable risk.

A few years later, from about 2005 to 2010, the

law enforcement practice has changed significantly in

this issue. Investigative bodies and courts simply

stopped giving a criminal-legal assessment of the

legality of the actions of persons carrying out

operative search activities. So, if in the period from

2001 to 2004 such an assessment was carried out in

67 % of cases, then from 2009 to 2020 we did not

establish such facts. Despite this, the majority of the

interviewed respondents (more than 65%) believe

that the Criminal Code should contain a special rule

that excludes the criminality of causing harm during

operative search activity.

It can be said that a comprehensive regulation of

operative search activities has developed in Russia. It

is a combination of the two models that C. Harfield

distinguishes. The first “model of negative liberty”

(“a negative liberty model”) exists in those states

where a secret agent can do anything that is not

specifically prohibited. The second “model of

positive authority” (“a positive authority model”) is

typical for countries where the covert activities of law

enforcement agencies are regulated by law) (Harfield

C., 2018). To some extent this situation is resembling

with the one that exists in the United States. In this

state, there is no direct legislative regulation of the

actions of undercover agents, which are similar to a

crime. At the same time, such actions are assessed

from the point of view allocated in the theory of

criminal law – the protection of state power or the

protection of the authority of law enforcement

agencies (Joh Elizabeth E., 2009).

The situation with the problem of crime

provocation develops in a similar way. After the case

of Vanyana against Russia considered by the ECHR

in 2005 and the direct prohibition of provocation of a

crime in Art. 5 of the Federal Law “On OSA”, the

situation has changed insignificantly. The lack of

proper legal regulation of the conduct of operative

search operations leads to the fact that, on the one

hand, the ECHR recognizes the decisions of the

Russian courts as inconsistent with the European

Convention on Human Rights, and on the other hand,

the bodies carrying out OSA, finding themselves in a

legal vacuum or, at best, in situations of insufficient

legal regulation, are forced to independently form the

rules of conduct that would suit both the investigation

and the courts.

So, after the named decision of the ECHR, the

conduct of test purchases was reduced to a minimum

in the internal affairs bodies. After the cases of the

ECHR “Bykov v. Russian Federation” in 2009,

“Bannikova v. Russian Federation” in 2010, “Lagutin

and others v. Russian Federation” in 2014, the

conduct of sting operations was sharply reduced. The

ECHR has repeatedly pointed out that “test purchases

and sting operations are fully within the competence

of operative search authorities and that this system is

characterized by structural evasion from providing

guarantees against police provocation” (see, for

example: The Case “Lagutin and Others v. Russian

Federation” dated 24 April 2014 and others).

The situation has not been resolved to this day. It

is confirmed by the fact that the ECHR again ruled in

favor of the majority of the applicants in the case

“Kumitsky and Others v. The Russian Federation” in

view of the provocation of a crime in 2018.

4 CONCLUSIONS

Thus, we believe that the unofficial rule on

“protection of a representative of state power” should

find its criminally legal confirmation. Situations of

harm caused during operative search activities must

be regulated in a separate norm of Chapter 8 of the

Criminal Code of the Russian Federation. It could be

Article 391 “Causing harm during an operative search

operation” with the following content:

1. “It is not a crime to forcefully cause harm to the

interests protected by criminal law during an

operative search operation by an authorized

person who acts in order to prevent, suppress or

solve a crime, if this activity did not exceed the

limits of causing harm during the conduct of an

operative search measure.

2. Exceeding the limits of harm infliction during

the conduct of an operative search measure

shall be deemed intentional infliction of death

or serious harm to the health of another person,

or violation of sexual inviolability or sexual

freedom of a person, or deliberate infliction of

other harm that clearly does not correspond to

the nature and the degree of public danger of

the crime being prevented, suppressed or

solved.”

This proposal to supplement the Criminal Code of the

Russian Federation with a new circumstance

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excluding the criminality of a deed during the conduct

of operative search operation is based not only on the

study of domestic doctrines of criminal law, and

operative search activity, and law enforcement

practice. It takes into account the experience of

foreign legislation and the recommendations of

international documents ratified by the Russian

Federation. Our edition of Art. 391 of the Criminal

Code of the Russian Federation is not just a solution

to particular problems of administration of law and a

gap in legal regulation. It is aimed at observing the

principle of the consistency of law and does not

undermine the foundations of the codification of

criminal legislation. This proposal is an expression of

the idea of a compromise between excessive

abstractness and excessive casuistry of the further

development of the entire institution of lawful

infliction of harm.

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