Law enforcement is one of the fundamental functions performed by the government at the state level. The centralized subordination of local and regional structures to higher authorities of national importance provides for the mandatory observance of the relevant regulations. There is no exception to the procedure for using the results of operational investigative activities in proving criminal cases. What does this order mean and how is it implemented in practice?
Using the results of operational-search measures: the essence and necessity
The society of any state requires legal protection from its authorities. It is no secret to anyone that crime, injustice, a conflict atmosphere and opposition to the interests of representatives of this very society are raging in the current society. People are either afraid of committing criminal intentions against them and demand help from the relevant law enforcement agencies, or they themselves represent organized crime and must be punished for this through detention measures carried out by the same law enforcement agencies. In view of this, the results of operational-search measures are extremely important in the implementation of such procedures. Using the totality of evidence, facts, arguments, evidence obtained in the course of operational work is a powerful and direct tool for the prosecution of the investigation of the crime committed. In this regard, the need for their application during the investigation and further trial is fully justified.
But what is the concrete essence of using the results of operational investigative activities in proving a crime, a crime, an act involving criminal liability?
Operative-investigative activity (ORD) is a set of procedures and manipulations carried out by law enforcement bodies to collect evidence in connection with the accusation of a specific crime suspected of him, as well as to disclose and ascertain to the smallest details of events involving criminal activity. The results of the operational-search activity, in turn, are a combination of information and data obtained by representatives of law enforcement agencies in accordance with applicable law and telling about a criminal offense being prepared, committed or already committed. Simply put, the essence of their use in legal proceedings is that not a single criminal walks free and suffers the appropriate punishment for his actions.
Legislative regulation of the activities of the ARD
Like any activity of a procedural nature, the work of the operational units of the internal affairs of the state is based on the legislative framework. In Russia, the Code of Criminal Procedure provides for the determination of the nature and significance of the results of operational investigative activities in proving the fact of an impending criminal act, an offense committed or an offense already committed, as well as the identification of persons who are ready to commit, commit or have already committed an offense. This extract is described in paragraph 36.1 of Article 5 of the Code of Criminal Procedure.
In addition, the work and implementation of the task force’s tasks is based on compliance with legal norms defined by the Federal Law “On operational search activity” and the Instruction on the provision of the results of operational search activity to an inquiry officer or the inquiry body represented by higher authorities, the investigative committee, the prosecutor’s office, and court proceedings. This Instruction was approved by the Order of the Ministry of Internal Affairs of the Russian Federation of 09/27/2013 and suggests the need for the described measures to act as:
- the fundamentals and the catalyst for initiating criminal proceedings;
- funds for the preparation and subsequent implementation of judicial and investigative measures provided for by the Code of Criminal Procedure of the Russian Federation;
- evidence base, in accordance with the requirements of the procedural law in criminal matters governing the collection, processing, assessment and verification of evidence.
Regulation and legal field
The use of the results of operational investigative activities in proving an existing fact of a future, present or committed crime is all the more important for its disclosure and punishment by the guilty, the more serious the offense was committed. In other words, the higher the severity of the crime is considered in a criminal case, the more significant and necessary are all the facts, evidence, aspects of the evidence base that were identified during the investigation by the investigators. Indeed, in order to prove the culprit of the offender, we need good reasoned justification. Therefore, in the course of the activities of the task forces, due to the specific nature of the events, the rights of those persons in respect of whom they are carried out are limited.
The use of the results of operational investigative activities in proving the criminal intentions of the object of the offense often provokes the absence of any guarantees and the restriction of rights in relation to such a person. In view of this, exclusion, substitution of the results of the ARD, distortion of legal evidence, as well as subjective perception of the operational search data and prejudicial adoption of a procedural decision on their basis cannot be allowed. This principle assumes that, due to suspicions of his involvement in the offense, the attitude of the operatives changes to the potential criminal - it is tightened due to the danger that he posed and represents for society. The current regulation does not allow any interest of the law enforcement party in conducting investigations, as well as unacceptable bias, which could lead to direct or indirect interference of law enforcement agencies in the evidence base of the disclosed crime.
In view of the foregoing, the legislation provides for strict observance of members of operational groups and divisions by the law and the legislative norms of the rules of conduct of the ARD. The same Instruction on the procedure for presenting the results of operational investigative activities provides for the fact that all case materials and information obtained in the course of operational work must include data that are directly relevant to clarify the details and establish all circumstances that must be proved in criminal proceedings . Also, the sources of evidence obtained must be indicated without fail to verify the authenticity of the information provided in a court of law. What procedure does the Instruction provide for initiating a procedural and criminal case in the course of the identification by the investigators of a sufficient evidence base in the commission (planning) of a specific crime?
Instructions on the procedure for providing the results of operational investigative activities
In the course of the activities of the operatives, the results of their work are systematized, generalized and transmitted to the inquiry bodies. In fact, they are nothing more than the basis and root cause for initiating a criminal case. In the event that the inquiry bodies consider the information provided complete, objective, and weighty enough to begin criminal procedure, a criminal case will be opened. The duties performed by officials during the search for evidence base take the form of a report in order to be communicated to higher authorities. One way or another, the use of the results of operational investigative activities is regulated at the legislative level and in terms of transferring information to the prosecutor's office, the interrogating officer, and legal proceedings. How exactly does this happen?
The procedure for providing the results of operational investigative activities is carried out through the preparation of one of two documents:
- A report is a documentary form of presentation of specific activities and actions of an operational group, during which information was revealed about the preparation, commission or already committed crime of an individual or a group of persons included in the number of criminal groups. It is compiled by an employee of the operational department, an operational officer and registered with the relevant authority carrying out the ARD. The body of the report outlines a list of signs, conditions, time, place, documentation and other objects that are most directly related to a specific crime.
- The message is essentially the same document as the report: the body of the message also stores information about the fact of a possible or already committed offense and about specific individuals involved in this offense. But, in addition to this, information is also being added on questions about the need to declassify information containing state secrets in addition to the materials and carriers attached to the case.
It is important to note that if it is recognized that the fact that purely confidential information is to be disclosed is necessary, the heads of the operational department attach a declassification order to the message - the third document included in the list of necessary to provide the results of operational search activities. The order of actions of the investigator on the basis of the received report or message with the decision is described below.
Actions of the investigation based on the obtained results of the ARD
If the information in the report or message provided by the investigators has a complete list of reasonable evidence for continuing criminal procedure, the investigator, in turn, begins to put into effect his official position on the fact of work on the disclosure of the criminal case.
- The procedure for the detention of a suspect - during investigative measures in accordance with the rules of the criminal procedure code, a search and possible examination of a potential object of crime is carried out.
- Seizure of objects of familiarization with the case - seizure and inspection of things, clothes, shoes and other items that belong to the suspect are carried out.
- Sending potential material evidence for examination - all the same items of the suspect’s personal wardrobe, his household or work equipment, things that can help clarify the circumstances of a committed or just being prepared crime - all this is subject to laboratory analysis.
- Interrogation - in accordance with the current legislation, the suspect himself and potential accomplices or other participants in the search activities are subject to mandatory interrogation in order to identify their involvement in the crime.
- Identification procedure - if necessary, witnesses in the case can identify the suspect during the investigation. In such cases, non-visual observation of the suspect by the identifiable is possible in order to maintain the safety of him as a witness.
- Viewing and listening to recordings on appropriate media - evidence may be attached to the case in the form of certain videos, audio recordings and photographs depicting the fact of the offense carried out by the suspect.
- Search - the investigative committee receives permission to search the suspect’s work or residential premises in order to clarify additional specifics of the circumstances of the crime committed by the potential offender.
Upon the fact of conducting investigative measures, the evidence obtained during the investigative activity, along with the developments of the operational group are transferred to the prosecutor's office and the court.
Verification of the results of the ARD
As mentioned earlier, the use of the results of operational-search activities is regulated by the law “On the HRO” and certain articles of the Code of Criminal Procedure, which, in turn, ensures the legitimacy of the actions of the authorized officers and the prevention of distortion or falsification of the information received. That is, the law provides for the creation of reliable guarantees for the equality of rights of both parties in the process of proof.
The reliability of the results obtained in the course of operational work is verified by comparing the data with other information available in the case, as well as by ascertaining their sources and identifying new evidence that confirms or disproves one or another operational information. This procedure is governed by Article 85 of the Code of Criminal Procedure, which evaluates each individual evidence as:
- relevant to a particular case;
- legal permissible;
- reliable from the point of view of comparing it with other evidence, as well as the possibility of its direct verification;
- objective from the point of view of assessing the sufficiency of evidence to form conclusions about the presence or absence of criminal intentions in the actions of the accused.
In other words, falsification of the results of operational-search activities is minimized, since there is always the opportunity to verify the accuracy of the information provided by the task force in a report regarding a particular crime.
Documentation confirming the origin of the results of the ARD
In terms of conducting operational-search measures, investigators often have to seize various items that are involved in the case as being directly related to it and that bear the evidentiary nature of a particular fact. The very moment of receipt of such items by field investigators is documented, and in the framework of official jurisdictional powers of an employee, such a fix often takes the form of a protocol. It could be:
- inspection protocol ;
- detention protocol;
- excavation protocol ;
- protocol of voluntary extradition, etc.
In this case, the following sources may serve as evidence confirming the origin of the substance or object obtained during operational search measures:
- the documentation by which the results of the relevant search actions were drawn up (all the same protocols, as well as documents on the administrative detention);
- a message (cover letter) and a decision on the transfer of operational materials to the investigation for further familiarization with the criminal case;
- documented testimonies of the participants in the case regarding the circumstances of the contemplated fact of a crime.
What are the results of the warrant in court proceedings used for?
Despite the fact that the results of the ARD are the initial stage in the chain of criminal procedure, and that the main sources of the accusatory nature are the investigative work that is being carried out in the case, the significance of the work and information provided by the investigators cannot be diminished. The procedure for presenting the results of operational investigative measures should provide for the transfer of very important evidence to the relevant authorities (inquiry bodies, prosecutors, courts). Where and for what information of the operational department employees about the facts revealed by them can be applied?
- In legal proceedings regarding the evidence in a criminal case of a violation (taking into account the requirements of the Code of Criminal Procedure).
- For the adoption of specific procedural decisions, this includes: the grounds and prerequisites for initiating a criminal procession, the factual basis for conducting individual investigative measures, as well as the direct search for the accused (suspects).
- As a preliminary analysis and assessment of the accumulated evidence base.
- To build possible versions and search for existing sources of evidence. As such, either material evidence - all kinds of objects, things, photographs, videotapes, audio recordings, or documentary, representing explanations, references and reports on the results of operational activities.
The conditions for the establishment of the results of the ARA are legally sound
, , . - ?
- -, , . 6 « ».
- -, , () , .
- -, .
, - , :
- (), , , , , , , . , .
- , , , . .
- – , . , , , , , , .
- . , , , , . . , , , , , , .
To date, the idea of actively applying the results of the ARD in proving is reflected in practice, where often these results attach importance to judicial evidence. They contribute to the formation of such a legislative framework that is able to satisfy the need for legal proceedings in high-quality, reliable, complete and truthful information in accordance with the norms established by law. Thanks to the activities of the operational department employees and the results of their work, the information they obtained during the course of work enables the investigation to conduct investigative and operational measures to solve criminal offenses as soon as possible, followed by proof of the guilt of the criminals in court and a corresponding sentence.