Operational-search detention (capture) as an object of legal regulation of operational investigative legislation

Kondrashechkin Roman Viktorovich PhD in Law Senior Lecturer at Kikotia Moscow University of the Ministry of Internal Affairs  143100, Russia, Moskovskaya oblast', pos. Ruza, ul. Solntseva, 22, kv. 143 rvk07@rambler.ru Other publications by this author

Currently, the issue of legal regulation of the operational-investigative detention (capture) of persons of operational interest is acute. Various aspects of operational investigative detention are the subject of scientific disputes and discussions concerning the legal nature of the implementation of this direction by criminal investigation officers, since the actual detention of a person is a restriction of the right to freedom and personal inviolability, reflected in part 1 of Article 22 and guaranteed  The Constitution of the Russian Federation^[1]. Employees of operational units, when solving general and special tasks of operational investigative activities (when carrying out operational investigative measures to verify operational investigative information), face the problem of implementing operational investigative detention of persons who are objects in respect of which verification actions need to be carried out.In scientific studies concerning this problem, many authors (S. A. Chumarov, N. S. Zheleznyak) point to the fact that operational officers at a certain stage are not fully able to give a legal assessment of their actions to detain persons. Directly in the course of the detention, they experience doubts and uncertainty about the legality and correctness of their actions (within the framework of the practical implementation of these legal relations). I would like to emphasize that it is difficult to blame the employees of operational units for their incompetence, since this line of work follows from the practical solution of specific tasks of operational investigative activities (hereinafter referred to as ORD). Despite the need for a practical need for the settlement of the legal relations under consideration, at present regulatory legal acts do not contain substantive and procedural norms that could regulate the procedure, grounds, conditions, limits, as well as other areas of application of this coercive measure in the implementation of the ORD^[2]. We believe that the position expressed by the authors deserves further study, as it is aimed at improving legislation in the field of ODS.

The current legal grounds for the detention of a person in the legislation of the Russian Federation are regulated by regulatory legal acts in various areas of application of the coercive measure in question and, accordingly, differ among themselves within a particular branch of law.

Thus, the legal grounds for detention are contained in paragraph 1 of Part 2 of Article 14 of Federal Law No. 3-FZ of 07.02.2011 "On Police"^[3].

The legislative act in question gives police officers the right to detain persons who are reasonably suspected of committing a crime (persons in respect of whom there are grounds and reasonable suspicions of their involvement in the commission of a crime).

At the same time, an authorized official may choose a preventive measure in the form of detention in relation to suspects in the manner, on the grounds, as well as for the period provided for by the criminal procedure legislation.

The Code of Administrative Offences of the Russian Federation^[4] (hereinafter referred to as the Administrative Code of the Russian Federation) also contains provisions concerning the legal grounds for administrative detention, which are reflected in Articles 27.3–27.7.

Legal uncertainty regarding the detention of a suspect, i.e. a person in respect of whom the procedural status is determined, on the one hand, is fixed in paragraph 11 of Article 5 of the Criminal Procedure Code of the Russian Federation ^[5] (hereinafter - the Code of Criminal Procedure of the Russian Federation). The stated definition defines detention as a measure of procedural coercion. At the same time, Chapter 12 of the Criminal Procedure Code of the Russian Federation, the detention of a suspect involves a set of special procedural actions aimed at documenting the actions of the detained person by the investigator, i.e., drawing up a protocol of detention, interrogation of the suspect, personal search and other investigative actions. In fact, procedural detention is an independent legal category related to the procedural registration of detention. The position of the famous Russian scientist S. B. Rossinsky deserves attention, who states: "No norm of the Criminal Procedure Code of the Russian Federation assumes a clear formula: "actual detention and delivery are acts of criminal procedural activity." The content of the definition under consideration of the legal definition of the detention of a suspect does not at all imply a direct thesis about the seizure of a person as a structural element of this coercive measure. This norm implements the existing positions of the Constitutional Court of the Russian Federation and the European Court of Human Rights into the sphere of criminal procedure legislation, giving practical detention the significance of a certain point of reference for permissible periods of restriction of the right to freedom and personal inviolability"^[6].

In the resolution of the Constitutional Court of the Russian Federation^[7] dated 06/27/2000 on V. I. Maslov's complaint about the violation of his constitutional rights and the verification of the constitutionality of the provisions of Part 1 of Article 47 of the former Code of Criminal Procedure of the RSFSR concerning the participation of a lawyer in the case from the moment of the actual detention of a person on suspicion of committing a crime. In response to V. I. Maslov's request for the assistance of a lawyer, the investigator explained to him that in accordance with part 1 of Article 47 of the Code of Criminal Procedure of the RSFSR, such assistance is provided from the moment of indictment only to the accused or from the moment the suspect is announced the protocol of detention or the decision on the application of a preventive measure to him in the form of detention. Due to the fact that V. I. Maslov is a witness by his procedural position, his request cannot be satisfied. The protocol of detention as a suspect was announced to Maslov after he had been in the position of a de facto detainee for a long time and identification, interrogation as a witness and confrontation were conducted against him.

 Federal Law No. 26-FZ of 20.03.2001 "On Amendments and Additions to Certain Legislative Acts of the Russian Federation in Connection with the Ratification of the Convention on the Protection of Human Rights and Fundamental Freedoms" introduced changes that were reflected in the implementation of the provisions of the new Code of Criminal Procedure of the Russian Federation. The decision of the Constitutional Court of the Russian Federation refers to the actual detention of a person, i.e.  an accurate description of the state of a person at a certain point in time in a specific situation against the background of his real status in relation to other participants. The use of this terminological explanation by the legislator creates specific descriptive actions for formalized consolidation in legal acts and further dissemination of the actual and formal position of a person at the initial stage of criminal prosecution, identified and justified in the decision of the Constitutional Court of the Russian Federation.

The recognition in the law of the possibility of inconsistency of the actual condition of the detained person with his procedural status may be due to the position of the legislator on the inexpediency of legal regulation of certain provisions of the Code of Criminal Procedure of the Russian Federation arising legal relations upon the detention of a person. This is due to the fact that, under certain conditions, restriction of freedom and movement of a person suspected of committing a crime may take place even before the initiation of a criminal case, as well as before the receipt of a crime report, when the official authorized to carry out the procedural decision is still absent. In this regard, actions to detain a suspected person go beyond the scope of criminal procedural legal relations^[8]. That is, we are talking about the detention of a person at the stage before the initiation of a criminal case.

In practice, the actual detention is carried out by employees of operational units engaged in operational investigative activities (hereinafter referred to as the ORD) within the framework of operational investigative measures (hereinafter referred to as the ORM). In fact, the ORD is a type of activity carried out publicly and secretly by operational units of state bodies authorized by Federal Law No. 144-FZ of 15.08.1995 "On operational investigative Activities"^[9], within their powers, by conducting an ORM in order to protect the life, health, rights and freedoms of man and citizen, property, and ensuring the safety of society and the state from criminal encroachments. These bodies are not empowered to carry out a preliminary investigation and at the same time do not have legal grounds to prepare and issue procedural acts, for example, a criminal procedure act, a protocol of detention^[10]. In the scientific works of S. V. Saprun, it is noted that "employees of the internal affairs bodies" during the physical capture and delivery of a person to the body of inquiry are not subjects of criminal procedural detention of a suspect, and therefore subjects of deprivation of his right to freedom of movement in the criminal procedural aspect"^[11]. This circumstance suggests that the actual operational-search detention of persons (capture) who are in operational development, and even more so of persons with the procedural status of suspects or accused, employees of operational units cannot carry out without the presence of an appropriate legal basis – a separate order issued by the investigator of the preliminary investigation body to conduct separate investigative actions. In practice, the operative is faced with the problem of obtaining the investigator's decision on this issue, and this is lost time, loss of primary information, loss of information relevant to the case, and in the end, the person being developed may simply disappear.

In the studies of I. L. Petrukhin, the detention of a suspect is understood as a special tactical operation due to the investigative situation that has developed in the case, which is a certain set of procedural actions, operational-investigative, organizational-tactical and other measures aimed at solving a specific task of investigation ^[12]. This point of view is shared by other well-known forensic scientists^[13]. At the same time, these authors claim that the scientific and methodological foundations of conducting tactical operations are included in the subject of studying criminology, which emphasizes the non-procedural nature of the actual detention and delivery of a person to the internal affairs bodies. In fact, this action is implanted in the sphere of criminal procedural relations due to the need to ensure constitutional guarantees in criminal proceedings.

Taking into account the fact that the subject of the theory of HORDES has similar features to the science of "Criminalistics", but is due to the specifics of the HORDES and the conducted ORMs, we can propose the following definition of the detention (capture) of persons of operational interest.

The actual detention (capture) of persons of operational interest is an operational search event conducted by operational units, as a result of which a person is deprived of the actual ability to move freely, and employees of operational units get the actual opportunity to forcibly deliver him to the body of inquiry, investigator or court to resolve issues within their competence^[14]. In this context of the issue under consideration, any detained person has a need to demand an urgent judicial review of the legality of the restriction of freedom and imposes on law enforcement agencies the burden of proving the legality of the detention and delivery. In fact, this provision follows from Article 22 of the Constitution of the Russian Federation and guarantees the inviolability of the individual within the framework of the institution of Anglo-Saxon law "habeas corpus".

As noted earlier, the legal nature of operational investigative activities is enshrined in the current Federal Law "On Operational Investigative Activities" and is implemented within the powers granted to operational units. At the same time, the law in question does not regulate the issue of the exercise of powers relating to the operational search detention (capture) of persons of operational interest, which undoubtedly causes difficulties in law enforcement practice. The absence in the law under consideration of an appropriate norm corresponding to the Federal Law "On the Police", with the Federal Law "On the FSB" is significant and requires immediate revision.

Operational search detention (seizure) in the absence of legislative consolidation in the Order is expressed in the normative legal regulation of this compulsory measure by various branches of law. The application of an appropriate coercive measure should be regulated by the norms of operational-investigative legislation, since operational-investigative detention (seizure) is common in the activities of employees of operational units whose powers are enshrined in the sectoral legislative act.

In this regard, it is necessary to supplement Article 6 of the Federal Law "On Operational Investigative Activities" with an operational investigative measure - "Operational detention (seizure)", as well as the rights of the bodies carrying out the ORD enshrined in paragraph 1. Part 1 of Article 15 of the Federal Law "On Operational Investigative Activities", stating it in the following wording: "To carry out publicly and secretly operational search activities listed in Article 6 of the Federal Law "On Operational Search Activities", to seize documents, objects, materials and messages during their conduct, as well as to interrupt the provision of communication services, and in the event of an immediate threat to the life and health of a person or an official of an operational unit, as well as threats to the state, military, economic, information or environmental security of the Russian Federation to actually detain (capture) him."

Thus, operational officers will be empowered to carry out operational-search detention (capture) of persons of operational interest. It is also necessary to introduce provisions specifying the grounds, conditions, and procedure for detention^[15].

Legislative consolidation and normative legal definition of operational-investigative detention of a person (seizure)  it will solve the problem of legal regulation of these legal relations and ensure in practice the implementation of the powers of employees of operational units and the principles laid down in the Constitution of the Russian Federation of the observance of human and civil rights and freedoms, the inviolability of the individual during operational investigative activities in order to solve the tasks of operational investigative activities.

^[1] The Constitution of the Russian Federation (adopted by popular vote on 12.12.1993) (subject to amendments made by the Laws of the Russian Federation on Amendments to the Constitution of the Russian Federation No. 6-FKZ of 30.12.2008, No. 7-FKZ of 30.12.2008, No. 2-FKZ of 05.02.2014, No. 11-FKZ of 21.07.2014).

^[2]Chumarov S. A., Zheleznyak N. S. Operational search detention: legalization is necessary // Legal science and law enforcement practice No. 2 (32) 2015.

^[3]Federal Law No. 3-FZ of 07.02.2011 "On the Police" Collection of Legislation of the Russian Federation, 14.02.2011, No. 7, art. 900.

^[4] Code of the Russian Federation on Administrative Offences of 30.12.2001 No. 195-FZ // Rossiyskaya Gazeta. 31.12.2001 № 256.

^[5] The Criminal Procedure Code of the Russian Federation of 18.12.2001 No. 174-FZ // Collection of Legislation of the Russian Federation. 24.12.2001. No. 52 (part I). Article 4921.

^[6]S. B. Rossinsky. Reflections on the legal nature of the actual detention and delivery of the suspect // ConsultantPlus (accessed: 26.11.2019)

^[7]Resolution of the Constitutional Court of the Russian Federation No. 11-P of 27.06.2000 "On the case of checking the constitutionality of the provisions of Part One of Article 47 and Part Two of Article 51 of the Criminal Procedure Code of the RSFSR in connection with the complaint of V.I. Maslov" // SZ RF. 2000: No. 27.St. 2882.

^[8] Rossinsky S. B. Actual detention of a suspect as an object of constitutional and intersectoral legal regulation // Russian justice. 2018 No. 4 .P. 31.

^[9] Federal Law No. 144-FZ of 15.08.2005 "On operational investigative activities" // STRAS Lawyer (accessed: 26.11.2019).

^[10]Kondrashechkin R. V. Problematic issues of operational search detention // Topical issues of the theory and practice of the ORD. Collection of scientific papers of the All-Russian Scientific and practical conference edited by V. V. Abramochkin M. 2019. pp. 28-25

^[11]S. V. Suprun. Actual detention: a literal interpretation of paragraph 15 of Article 5 of the CPC // Scientific Bulletin of the Omsk Academy of the Ministry of Internal Affairs of Russia. 2011. No. 4 (43). p.26.

^[12] Petrukhin I. L. Personal inviolability and coercion in criminal proceedings. Moscow: Nauka, 1989. p. 56.

^[13] Grigoriev V. N. Detention of a suspect. Moscow: Yurinfor, 199. pp.103–104; Berezina E. S. Detention of a suspect as an institution of criminal proceedings: dis. ... cand. jurid. M.: Research Institute of the Ministry of Internal Affairs of Russia, 2009. pp. 26-27.

^[14] Kondrashechkin R. V. Problematic issues of law enforcement practice in the implementation of operational search detention (seizure)  //  Police and investigative activities. 2017. No. 3. pp.24-31.

^[15]Kondrashechkin R. V. On the issue of social and legal protection of citizens assisting bodies carrying out operational investigative activities: criminal law and operational investigative aspect // Collection: Problems of application of criminal legislation in the implementation of operational investigative activities: Materials of the Interdepartmental round table. 2016. pp. 83-89