Detention of a Person Subjected to Operational Investigative

Prosecution

Yuriy B. Chupilkin

and Yuriy V. Demidchenko

Procedural Law Department, South-Russian Institute of Management, Branch of RANEPA, Rostov-on-Don, Russia

Department of Criminal Procedure, Russian State University of Justice, Rostov-on-Don, Russia

Keywords: Operational-investigative activities, operational-investigative measures, operational-investigative

prosecution, detention, inspection of a person, physical detention, actual detention.

Abstract: The research goal of the study was to consider the issues of detention in flagrante delicto as a result of

operational and investigative activities. The research objectives included: to analyze the theory and practice

of detention of persons subjected to operational-investigative prosecution; to conduct a survey of employees

of operational-investigative units on the registration of the results of their actual detention; to formulate

proposals to ensure the rights of a detained person subjected to operational-investigative prosecution. As a

result of the study the authors of the article made the following conclusions. It is necessary to fix in the Federal

law "On detective-search activity" a concept of "detective-search prosecution". Operational-investigative

prosecution should be understood as carrying out of operative-investigative measures in respect of a person

suspected of committing a crime in order to obtain information that can be used for further criminal

prosecution against him. The authors of the study share the opinion of scientists on the illegality of detention

of a person subjected to operative-search prosecution in the manner provided for by administrative legislation.

The researchers support the idea of a unified approach to the regulation of the institution of detention by a

separate federal law. The authors of the study propose to legislate: 1) to define the legal status of a suspected

person subjected to operatively-search prosecution; 2) to provide for immediate inspection of a person during

the implementation of his actual detention.

1 INTRODUCTION

Analysis of law enforcement practice shows that in

most cases, based on the results of operational-

investigative activities, suspected persons were

actually detained and taken to law enforcement

agencies, where they remained for a long time in an

uncertain legal status. This circumstance in some

cases leads to an excess, abuse of power and entails

criminal consequences for the employees of

operational units, as well as violates the constitutional

rights of persons subjected to operational prosecution,

to qualified legal assistance.

The authors study the issue of detention of a

person suspected by the results of operational-

investigative activity. The authors conducted a

comparative legal analysis of: 1) the norms of

Russian legislation (Federal Law “On Operative-

https://orcid.org/0000-0001-7728-5903

https://orcid.org/0000-0003-4607-5086

Investigative Activity”, Federal Law “On Police”, the

Code of Administrative Offences of the Russian

Federation, the Code of Criminal Procedure of the

Russian Federation; 2) publications of scientists; 3)

legal position of the Constitutional Court of the

Russian Federation and the European Court of

Human Rights rulings.

The novelty of the study lies in the fact that the

authors propose, as a solution to the problem under

consideration, legislative measures aimed at ensuring

the rights of the individual during his actual

detention: 1) to fix in the Federal Law “On Operative

Investigative Activity” (hereinafter – the Law on

OIA), the legal status of a person suspected; 2) to

legislate the need for immediate inspection of the

person during his actual detention.

Hypothesis. Russian legislation does not regulate

the issues of actual detention of a person, his

Chupilkin, Y. and Demidchenko, Y.

Detention of a Person Subjected to Operational Investigative Prosecution.

DOI: 10.5220/0010628500003152

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

50-55

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

inspection and delivery during operational and

investigative activities, which is a violation of the

right to inviolability of the person. This problem

seems to be insufficiently investigated.

The research objective is to investigate the

problem of actual detention of a person during

operational and investigative activities.

Research tasks include, first, conducting an

analysis of scientific publications on the topic under

consideration; second, analyzing legal positions of

the Constitutional Court of the Russian Federation

and the European Court of Human Rights; studying

law enforcement practice on the procedure of actual

detention of an individual; fourth, developing

proposals to ensure the rights of a suspected person

subjected to detention, allowing to exclude abuses by

security service officers.

2 MATERIALS AND METHODS

The authors applied a set of research methods, among

which the dialectical method takes the leading place,

other methods should be named: system-structural,

formal-logical, comparative-legal and empirical

methods of research were also used. The researchers

studies 580 criminal cases, 327 of the cases

examined, suspected persons were detained as a result

of operational and investigative measures in

accordance with Article 91 of the Code of Criminal

Procedure of the Russian Federation.

3 RESULTS AND DISCUSSION

Russian legislation and the Law on Investigative

Work does not give powers to detain people during

the performance of operational and investigative

activities. However, apprehension of a suspected

person in flagrante delicto (entrapment on the spot,

actual apprehension) as a result of carried out

operational and investigative activities and his

compulsory escort to a law enforcement agency for

further investigation is considered a normal

phenomenon. The most widespread is the use of false

arrest as a result of conducting operational and

investigative activities, such as test purchase,

controlled delivery and operational experiment. That

is, when the operation was carried out in respect of a

specific person suspected of criminal activity.

Moreover, according to the standards of the ECHR,

the OIA cannot be carried out on an indefinite range

of persons (ruling of 30.10.2014 in the case “Nosko

and Nefedov v. Russia”).

In this regard, operational and investigative

prosecution should be understood as carrying out

operational and investigative measures in respect of a

person suspected of committing criminal activity in

order to obtain information that can be used for his

further criminal prosecution. Such definition is

formulated by O. D. Zhuk. (Zhuk, 2004). We believe

that in order to exclude provocative activities in

carrying out operative and investigative measures

against an indefinite range of persons. In addition, the

Law “On Operative Investigative Activity” should

enshrine the concept of “operational and investigative

prosecution”.

In theory and practice of operational

investigations, there is no unanimity among experts

as to the essence of detention during the conduct of

operational and investigative measures. In the

academic literature, when examining issues related to

the planning of operations for the implementation of

controlled delivery or purchase verification, attention

is usually paid to detention tactics. In planning and

conducting an operational experiment, detention of a

person suspected or wanted at the time of detection is

regarded as one of the organizational stages of

operational and investigative measures, i.e., a certain

algorithm of actions by operational personnel. At the

same time, questions of the procedural nature of the

actual detention are ignored.

A. Shumilov considers detention as an operative

investigation measure of restraint in the form of

seizure (Shumilov, 2007). N. S. Zheleznyak believes

that operational detention and operational search

should be attributed to “other operational and

investigative measures”, by regulating in the Law on

OIA certain conditions (Zheleznyak, 2019).

The problem under consideration is clearly

demonstrated by a questionnaire survey of

operational officers conducted by S. A. Chumarov.

Thus, the following data was obtained in response to

the question about what regulatory and legal sources

provide grounds and conditions for detention of a

person, applied on the basis of the results of the

carried out operational and investigative measures:

36% of respondents answered that in the Criminal

Procedure Code of the Russian Federation; 24% of

respondents indicated that in the Code of

Administrative Offences of the Russian Federation;

16% thought that these issues are regulated in the

Federal Law “On Police”; 12% answered that in the

Law on OIA; 8% thought that in departmental

regulations; 4% had difficulty in answering. In our

opinion, it should be noted that 96% of the

Detention of a Person Subjected to Operational Investigative Prosecution

respondents indicated that they used physical force

and special means during detention in the course of

the operational and investigative measures

(Chumarov, 2014).

Operational investigative bodies officers are

actually forced to bring a person detained for a crime

to a law enforcement agency for investigation

“allegedly with his voluntary consent” (Davydov,

2012), or on spurious grounds to apply to such a

person administrative and legal measures in the form

of delivery and administrative detention, up to

administrative detention.

Application of administrative coercive measures

in the form of administrative detention and search to

persons subjected to operational-search prosecution,

Karl A. M. considers as quite admissible measures

(Karl, 2020). V. N. Yashin expresses the opinion on

the need to consider the actual detention and delivery

to the investigator of a suspected person as

administrative detention (Yashin, 2016), i.e.

legalization of this procedure of detention. We, on the

contrary, fully share the opinion of scientists, who

consider such existing practice as illegal (Garmaev,

2005, Chechetin, 2020).

Firstly, in accordance with article 2 of the Law on

OIA, the objectives of the OIA are the detection and

disclosure of crimes. At the same time, application of

administrative coercive measures in accordance with

the requirements of article 27.1 of the CAO of the

Russian Federation is allowed only to suppress an

administrative offense, to identify the offender, and to

draw up a protocol on an administrative offense,

when it is impossible to draw up at the place of

detection of an administrative offense, as well as to

ensure consideration of an administrative case.

Secondly, the use of administrative procedures for

detention of a person subjected to detective-search

measures clearly contradicts the legal positions of the

Russian Federation Constitutional Court, which states

that

1) if in the process of carrying out operational and

investigative measures it is established that in the

actions of the suspected person there are signs not of

a crime but of an administrative offence, the

fulfillment of the operative measures in accordance

with the requirements of art. 2 and part 4 of art. 10 of

the Federal Law On Operative Investigation Activity

should be ceased (Ruling of the Constitutional Court

of the RF № 86-О of July 14, 1998 “On case about

the check of constitutionality of some provisions of

the Federal Law OIA upon the complaint of the

citizen I.G. Chernova”)

2) administrative detention is a measure to ensure

proceedings in cases of administrative offenses, its

application in criminal proceedings is not

permissible;

3) detention of an individual is admissible only in

accordance with the procedure provided for in the

Code of Administrative Offences of the Russian

Federation or the Code of Criminal Procedure of the

Russian Federation. In order to achieve operational

and investigative purposes (Rossinsky, 2018), the

Law on OIA does not provide for a coercive measure

– detention (Ruling of the Constitutional Court of the

Russian Federation of April 15, 2008 № 312-O-O

“On refusal to accept for consideration the complaint

of citizen Suren Mikhailovich Mikhaylian on

violation of his constitutional rights by Article 5 and

paragraph 4 of Article 10 of the RF Law “On Police”

and also by Article 2 and paragraph 7 of part one of

Article 6 of the Law OIA” (document not published).

The Federal Law “On Police” does not solve the

issues of operational detention. Since this Law only

regulates the activities of internal affairs officers and

does not apply to employees of other law enforcement

agencies, which under the Law on OIA are

empowered to carry out investigative operations.

Article 14 of the Federal Law “On Police” allows

detention of a certain category of people. At the same

time, the law does not allow detention of persons

subjected to criminal investigation.

Application of the procedure for detention

provided for by the Code of Criminal Procedure to

persons actually detained as a result of conducting

operational and investigative measures is also

problematic. The purpose of factual detention is to

suppress the illegal activities of a person and (or) to

clarify his involvement in the commission of a crime.

For these purposes the actual detention is carried out

by operative officers during the performance of

operational and investigative measures, such as an

operational experiment, controlled delivery or test

purchase. The difficulty lies in the fact that the first

stages of detention - the actual detention and delivery

of a person are not regulated in the Code of Criminal

Procedure of the Russian Federation.

I.V. Kruglov, H.V. Bopkhoev very accurately

noted that semi-transparent and ambiguous legal

regime of “actual detention” activities are used by

unscrupulous officials as physical and mental

pressure on the detained person in order to obtain

from him the necessary information, confession

(Kruglov, 2005).

During our study of 327 criminal cases we found

that the initial constant of time for drawing up a

protocol of procedural detention under Article 91 of

the Criminal Procedure Code (from the moment of

operational-search and verification activities to the

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

procedural drawing up of the protocol), in 63% of

cases is 24 hours or more. In 22% of cases the

decision on procedural detention was made between

6 and 24 hours. In 8 % of the cases the decision on

detention was made within 3 to 6 hours. And only in

7% of the cases the detention took place within 3

hours. In 83% of the 580 criminal cases investigated,

interviews and other verification activities were

conducted in the law enforcement agency after the

operational investigative measures.

Thus, in most cases, based on the results of the

operational and investigative measures suspected

persons were actually detained and taken to a law

enforcement agency, where they remained for a long

time in an uncertain legal status. This circumstance,

in certain cases, leads to abuse of power. (Andreeva,

2018, Trubnikova, 2015, Azarov, 2018).

The legislator has attempted to define the moment

of actual detention in criminal proceedings as the

moment of actual deprivation of freedom of

movement of a person suspected of committing a

crime (clause 15 of article 5 of the Criminal

Procedural Code of the Russian Federation) carried

out in accordance with the procedure established by

the Criminal Procedural Code. This definition of the

moment of the actual detention has only generated

additional discussions among scholars and

practitioners in the field of criminal proceedings.

According to P. A. Lupinskaya and V. Yu.

Melnikov, the moment of actual detention is a

physical apprehension of a person on the spot (P. A.

Lupinskaya, 2005, V. Yu. Melnikov 2020). The

second perspective is that the moment of actual

detention should be considered as the moment of

delivery to the investigator (Tsokolov, 2006, mirnov,

2017). The authors of the third point of view believe

that the moment of detention is the moment of

drawing up a protocol of procedural detention of a

suspect and only after the initiation of a criminal case

(Kim, 2011).

The situation is not clarified by the Constitutional

Court of the Russian Federation. In the ruling, the

Court only repeated the provisions of the Criminal

Procedure Code, focusing on the fact that Article 92

of the Criminal Procedure Code of the Russian

Federation directly obligates to indicate in the

protocol of detention the exact time in accordance

with the requirements of clause 15, article 5 of the

Criminal Procedure Code of the Russian Federation

(Ruling of the Constitutional Court of the Russian

Federation of 18 October, 2012, № 1902-O “On

refusal to accept for consideration the complaint of

Elena Vyacheslavovna Alekseeva concerning the

violation of her constitutional rights by paragraphs 11

and 15 of Article 5, Articles 91 and 92 of the Code of

Criminal Procedure of the Russian Federation”).

It seems correct that the moment of actual

detention should be considered as the physical

detention (capture) of the person on the spot. It is

from this very moment to the person, in case of

disobedience may be applied coercive measures in the

form of: physical force; combat fighting techniques;

special means; weapons (V. I. Plokhova, 2019).

Noteworthy, the moment of actual detention, as a

possible initial stage of procedural (legal) detention,

is considered only to the detention of a suspect of a

crime in criminal proceedings. Therefore, the issues

of actual detention of a person subjected to operative-

investigative prosecution need additional legislative

regulation.

According to V.A. Gusev and V.F. Lugovik, the

solution of this issue should be comprehensive. For

this purpose, it is necessary to provide in Art. 15 of

the Federal Law "On OIA" the right of officers

engaged in OIA to seize, deliver and search persons

who are reasonably suspected of committing a crime

(Sokolovskaya, 2017). Detention and registration

procedures should be regulated in detail. It is

necessary to differentiate between the notions of

“detention of a suspect” as a criminal procedural

decision and “actual detention” as an administrative

and operative-search action consisting in the seizure

and delivery of a suspected person (Gusev, 2014,

Gusev, 2019).

A. E. Chechetin considers that the issue can be

resolved by immediate decision to initiate a criminal

case, and in taking urgent investigative measures in

accordance with Article 157 of the Code of Criminal

Procedure of the Russian Federation (Chechetin,

2019).

The position of L.V. Golovko seems correct that

in fact, there can be only one "detention" and one

"search" as a reaction to unlawful behavior, which

requires strict or not too strict state punishment (from

a fine to life imprisonment) (Golovko, 2010). The

legal nature of the institution of detention is a police

measure (Golovko, 2017). It is especially important

to regulate the procedure of actual detention of a

person, regardless of whether the person has

committed an offense or a crime.

We share the idea of a unified consideration of the

initial stages of detention. We consider reasonable the

proposal of S. B. Rossinsky, to adopt a separate

federal law "On detention" (Rossinsky, 2019). At the

same time, the process of improving legislation

should take into account the practice of the ECHR

(Trubnikova, 2015), the European Convention, which

defines international standards of human rights and

Detention of a Person Subjected to Operational Investigative Prosecution

justice (Tarasov, 2019). On the issue at hand, the

ECHR has repeatedly drawn attention to the fact that

the failure of the police to conduct a search

immediately after arrest without good cause raises

legitimate concerns about the possible "planting" of

evidence (Laijov v. Azerbaijan No. 22062/07 of 10

April 2014; Sakit Zahidov v. Azerbaijan No.

51164/07 of 12 November 2015; Borisov v. Russia

(Complaint No. 48105/17) of 9 July 2019).

We believe that the actual detention should be a

single measure aimed at suppressing the illegal

activities of a person subjected to operational-search

prosecution, combined with the immediate

production of a personal search. Given the specifics

of the OIA, the Law on OIA should enshrine the legal

status of a “suspected person” subjected to

operational-search prosecution, giving them the right

to the assistance of an attorney during public

operational and investigative measures (Chupilkin,

2017, Serednev, 2019).

As fairly notes V. A. Sementsov, participation of

the lawyer in public operational and investigative

measures is connected with necessity of observance

of certain conditions, namely: 1) the principal must be

aware of the existing legal ban on cooperation of the

lawyer with the bodies carrying out OIA; 2) when it

is not possible to protect the interests of the principal

on a non-contractual basis with the bodies carrying

out OIA without participation of the lawyer; 3) if the

principal personally participates in carrying out OIA,

or in case of threat of a crime against the lawyer

himself or his family members (Sementsov, 2020).

The right to the assistance of an attorney should

be explained upon completion of operative-search

prosecution of covert operational and investigative

measures. In fact, in this case there is a transformation

of unclassified operational and investigative

measures into verification and investigative actions

(Chupilkin, 2018).

Consideration of issues of actual detention, using

a comprehensive approach, through the lens of law

enforcement activity will allow to form a uniform

procedure that ensures the implementation of goals

and objectives of law enforcement agencies and

private interests of an individual subjected to actual

detention as a result of operational and investigative

prosecution.

4 CONCLUSIONS

As a result of this study the authors draw the

following conclusions. We propose to introduce into

circulation and enshrine in the Law “On OIA” the

concept of "operational-search prosecution". This

concept should be understood as operational and

investigative measures against a person suspected of

committing a criminal offence in order to obtain

information that can be used for the further

prosecution. These provisions will allow to regulate

procedurally activity of operative officers with

respect to the suspected person during realization of

operational and investigative measures, which in its

turn will help to eliminate abuse of authority during

realization of operational and investigative measures

concerning an uncertain number of persons and

detention of a person who is under operational

prosecution.

We share the opinion of scientists about the

illegality of detention of a person subjected to

operational-investigative prosecution in the manner

prescribed by administrative legislation. We support

the idea of a unified approach to the regulation of the

institution of detention by a separate federal law.

We concluded and propose to regulate

legislatively: 1) the legal status of a suspected person

subjected to operational and investigative

prosecution; 2) immediate inspection of the person in

the implementation of his actual detention.

We believe that the implementation of these

proposals will contribute to ensuring the rights of an

individual subjected to operative-investigative

prosecution.

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Detention of a Person Subjected to Operational Investigative Prosecution