System of Principles of Operational-search Activity

Sergey Sergeevich Galakhov

, Boris Zufarovich Malikov

and Nadezhda Borisovna Malikova

Research Institute of the Federal Penitentiary Service of Russia, Moscow, Russian Federation

Department of Ufa Law Institute of the Ministry of Internal Affairs of the Russian Federation of the Ministry of Internal

Affairs of Russia, Ufa, Russian Federation

Department of the Research Institute of the Federal Penitentiary Service of Russia, Moscow, Russian Federation

Keywords: Norms-principles; legality; respect and observance of human and civil rights and freedoms; conspiracy; a

combination of vowel and unspoken methods and means; operational-search activity.

Abstract: The theory of law has developed general principles that are a reflection of common provisions, ideas and

patterns of legal regulation in any area of social relations. And already specific branches of law, based on the

characteristics of the subject of regulation, develop and highlight in their content the basic and special

principles that belong only to it. The principles of operational-search activity are guidelines that permeate all

of its activities, and find expression in operational-search relations. The authors considered the existing system

of principles of operational-search activity, which includes both general legal and their own special (industry)

principles.

1 INTRODUCTION

Modern legal regulation is nothing more than a

system of interrelated structural elements, each of

which is endowed with its own functional load and

performs specific tasks.

In its content, legal regulation has components

that are fundamental and special – these are norm-

principles. It is they who determine the structure,

functioning and set the progressive movement of a

particular industry, express the internal unity of its

norms.

The principles of law have a decisive impact on

lawmaking and law enforcement, since they act as a

direct reference point for the legislator and law

enforcement officer, but at the same time they also

have an independent impact on public relations

subject to legal regulation (Baranov, 2016).

The science and practice of operational-search

activity (hereinafter – OSA) organically interact due

to the dynamic and specifically reflected legal

regulation of OSA. Today, the science of OSA is on

a par with the leading branches in the field of

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https://orcid.org/0000-0002-7903-5307

https://orcid.org/0000-0001-7839-5143

combating crime, such as criminal law, criminal

procedure and others.

Among foreign studies, scientists also turn to

theoretical problems and the legislative structure of

regulations governing public relations in the field of

combating crime (Bashirova, Ibragimov, 2019;

Bitton, 2019; Matchanov, 2020; Wang, Lin, Shieh,

Deng, 2003; Gutnik, 2010).

The principles of the OSA are enshrined in Article

3 of the Federal Law "On Operational-search

Activities ". Their number is very modest, in

comparison with other similar branches of law in the

legal cycle, only four. They include general legal and

cross-sectoral principles. The small volume of the

norms and principles of the OSA can be explained by

several reasons. First, of course, this branch of legal

regulation of combating crime can be called relatively

"young" and developing, despite the fact that it has a

rather long history of existence. But the independence

of the sectoral affiliation of the OSA can be

considered from the moment of its separation from

other branches of law, in particular from the criminal

process.

262

Galakhov, S., Malikov, B. and Malikova, N.

System of Principles of Operational-search Activity.

DOI: 10.5220/0010635000003152

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

262-268

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

Secondly, the insufficient and unspecified

scientific elaboration of the theoretical provisions and

the terminological apparatus of the OSA. In

particular, the principles of OSA are often considered

in the study of organizational and tactical issues of

conducting operational-search measures (hereinafter

– OSM) and, to a lesser extent, in the science of OSA,

and there are very few works in the field of OSA

theory.

Thirdly, some principles are present in the law,

but have not yet received independence. So, for

example, in Art. 11 of the Federal Law "On

Operational-search Activities " there is the principle

of publicity of the OSA, to the extent that it meets the

requirements of conspiracy: the results of the OSA

can be sent to the tax authorities for use in exercising

the powers to control and oversee compliance with

the legislation on taxes and fees, to ensure the

representation of the interests of the state in

bankruptcy cases, as well as when exercising powers

in the field of state registration of legal entities.

2 MATERIALS AND METHODS

The methodological basis of the research is made up

of a set of methods of scientific knowledge necessary

to fulfill the assigned tasks and achieve the goal of the

research, in particular, such methods as formal legal,

comparative legal, sociological methods of polling

and interviewing.

3 RESULTS AND DISCUSSION

The modern system of principles by which the OSA

is carried out is not fully represented. In 1966 A.G.

Lekar formulated the following system of principles:

1) strict observance of the rule of law; 2) daily

communication with public organizations, reliance on

workers; 3) a combination of tacit and public events;

4) observance of conspiracy and offensiveness when

conducting OSM (Lekar, 1966). A significant

contribution to the further development of the

principles of OSA was made by G.K. Sinilov,

defining them as "fundamental ideas, the most

important rules for organizing and conducting the

fight against crime, mainly by secret means and

methods" (Sinilov, 1975).

More broadly considers the principles of OSA

I.A. Klimov, including in them such as science,

planning, legality, respect for the rights and freedoms

of the individual, ties with workers, democratic

centralism, collegiality and one-man management,

objectivity, forecasting, a combination of vowel and

unspoken OSM, specialization, interaction and

reflexivity (Klimov, 1993). These judgments were

supported by D.V. Rivman, who noted that although

the legislator included in Art. 3 of the Federal Law

"On Operational-search Activities" only four

principles, this does not mean at all that other

principles developed by the science of OSA should be

rejected (Rivman, 1999). Taking into account the

specifics of work with persons who secretly assist the

subjects of the OSA, the above point of view is, in our

opinion, fair even now.

In most cases, scientists who adhere to this

approach in considering principles divide them into

two complementary groups – general principles and

special ones (Goryainov, Ovchinsky, Sinilov, 2006).

This approach is fully justified. General principles are

the guiding principles for all subjects of the OSA.

Special (sectoral) principles are implemented only in

the OSA, subject to a number of requirements – the

adequacy of the principles, that is, their compliance

with the rule of law; in the basis of the formulation of

principles, it is necessary to take into account the

practice of working with confidants; the principles

should fully stimulate the solution of the tasks of the

OSA; all principles should be relatively autonomous

from each other.

In his monograph "Formation of Evidence Based

on the Results of Operational-Investigative

Activities" Ye.A. Dolya defines the principles of

operational intelligence as the most general ideas of

an operational-search nature, expressing one of the

essential aspects of this activity, defining the

operational-search form in all its manifestations and

serving to solve its problems (Dolya, 2014).

Thus, the modern science of OSA already has the

prerequisites for expanding the system of its

principles, in view of the presence of various

scientific judgments on this issue. But it still remains

open and incomplete and, therefore, further we will

consider the system of principles that is enshrined in

the current Federal Law "On OSA", consisting of two

general legal and two special (sectoral) principles.

The principle of legality is proclaimed by the

Constitution of the Russian Federation, which

consists in the supremacy of the Basic Law,

unconditional and exact observance of the

Constitution of the Russian Federation and the

fulfillment of all its instructions by all participants in

operational-search legal relations, and primarily by

officials conducting ORM. This principle is reflected

not only in article 3 of the Federal Law "On OSA", its

presence can be traced in many articles and

System of Principles of Operational-search Activity

263

provisions, both of the law itself and in other

normative legal acts regulating the OSA. So, the

requirements of legality are clearly observed in Art. 5

of the Federal Law "On OSA", the requirements of

which prohibit the implementation of an OSA for

solving problems not provided for by law. Article 6

of the Federal Law "On ORD" admits a real

likelihood of changing or supplementing the above

list of ORM, but only by law. And article 8 sets out

the conditions for conducting an ORM, which can

significantly restrict constitutional rights.

Interesting, in our opinion, judgments about the

principle of legality are presented in the work of D.A.

Babichev (Babichev, 2020). The author discusses a

lot about the essence of this principle, focusing on the

fact that it is presented in the literature in the "style of

general formulations characteristic of educational

literature" (Babichev, 2020), and also "is a

consequence of the adoption by many researchers of

conceptual interpretations developed by masters of

different branches of law the legality and use of

essentially close terminological and explanatory

provisions as pillars in modern projects of legal

doctrine”(Babichev, 2020). But, the position of the

author is twofold. Drawing conclusions, D.A.

Babichev calls legality "a social and legal

phenomenon that can be viewed as a principle,

method or regime." Of course, legality is a

multidimensional component. Understanding its

essence depends on the position from which it is

viewed and for what purposes. If from the point of

view of consolidation in the law, then this will be a

regime, if from the point of view of implementation

in the activities of a subject endowed with power,

then it will be a method. And there are a lot of such

aspects: from the standpoint of the behavior of the

subject, from the standpoint of implementation in

social relations, etc.

We believe that the essence of this principle is

reduced from the idea, which is mediated by

consciousness, is embodied in the understanding and

conviction of the subjects of legal relations in the rule

of law and is realized in their behavior. The main

point here will be the transformation of the idea-

slogan to its mandatory and natural execution and

observance by the subjects. The principle of legality

needs a mechanism for its implementation, otherwise

the principle of legality will be meaningless.

In the content of the principle of legality, we

include strict and strict observance of the

requirements of the law by all subjects and

participants of the OSA (operational units, citizens,

prosecutors, courts, etc., all who participate in

operational-search legal relations), regardless of their

degree of participation.

The principle of respect and observance of human

and civil rights and freedoms is also a constitutional

principle, which is rightfully considered an equally

important and valuable general legal principle. The

uniqueness of this principle of the OSA is also

determined by the fact that, in addition to Art. 3 of the

Federal Law "On OSA" Art. 5 of the same law gives

him a detailed interpretation.

Respect and observance of rights and freedoms is

understood in two meanings:

− firstly, the procedures for conducting OSM,

which can significantly relate to the

constitutional rights of citizens, or affect them,

are clearly defined by law, to what extent this

is permissible;

− secondly, in case of violation of rights, a

procedure for their restoration is provided.

Thus, this principle of respect and observance of

human and civil rights and freedoms is also expressed

in a number of articles of the Federal Law "On OSA"

and other regulations governing the OSA.

In the procedures for the implementation of the

OSA, this principle applies to citizens who may be

among the close relatives of the objects of the OSA.

This category of citizens is under special protection,

since most often they are ordinary law-abiding

citizens and in respect of them no interference with

their constitutional rights and freedoms is

permissible.

The prohibition on the collection, storage, use and

dissemination of information about the private life of

a person without his consent is implemented in the

OSA norms of Art. 24 of the Constitution of the

Russian Federation. The collection of this

information without the consent of the person to

whom they relate is possible only if it is necessary to

solve operational-search tasks.

Among the constitutional rights and freedoms of

a citizen and a person, some of which are inalienable,

and therefore they cannot be limited under any

circumstances. These include the right to:

− the dignity of the person;

− compensation for harm caused by illegal

actions of officials of state authorities;

− judicial protection.

Substantially, this principle consists of two

different categories of "respect" and "compliance".

Respect for rights and freedoms implies their

priority in relation to other social values. The

legislator notes their importance, inalienability and

highest value. All activities of the OSA are aimed at

protecting life, health, human and civil rights and

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freedoms. Therefore, respect in the OSA process is

paramount.

Observance of the rights and freedoms of citizens

consists in the implementation of a set of legal,

organizational and other measures that are designed

to create the necessary prerequisites for the

unconditional implementation of legal requirements,

where unreasonable restriction of rights and freedoms

during OSM is prohibited.

For example, the current legislation does not

provide a clear list of what is meant by the phrase

private life. But, the clarification of the constitutional

provisions is reduced to the fact that this concept

includes personal, family and other relationships of a

person that are not related to official activities. This

also logically applies, for example, the secrecy of

correspondence. This right is guaranteed and

protected by the Constitution of the Russian

Federation in Part 2 of Art. 23. The observance of this

constitutional right of citizens when conducting OSM

is ensured by a court decision, on the basis of which

such a procedure can be carried out.

Thus, the general legal constitutional principles of

the OSA that we examined, although they were

formulated by the general theory of law and are

acceptable for any branch of law, are an integral

attribute of the highest value of law and a guarantee

of ensuring rights and freedoms in the

implementation of the OSA, which in turn indicates

the legal regime in the state.

Observance of the rights and freedoms of citizens

consists in the implementation of a set of legal,

organizational and other measures that are designed

to create the necessary prerequisites for the

unconditional implementation of legal requirements,

where unreasonable restriction of rights and freedoms

during OSM is prohibited.

For example, the legislation current does not

provide a clear list of what is meant by the phrase

private life. But, the clarification of the constitutional

provisions is reduced to the fact that this concept

includes personal, family and other relationships of a

person that are not related to official activities. This

also logically applies, for example, the secrecy of

correspondence. This right is guaranteed and

protected by the Constitution of the Russian

Federation in Part 2 of Art. 23. The observance of this

constitutional right of citizens when conducting ORM

is ensured by a court decision, on the basis of which

such a procedure can be carried out.

Thus, the general legal constitutional principles of

the OSA that we examined, although they were

formulated by the general theory of law and are

acceptable for any branch of law, are an integral

attribute of the highest value of law and a guarantee

of ensuring rights and freedoms in the

implementation of the OSA, which in turn indicates

the legal regime in the state.

A characteristic and very specific feature of

information of operational-search interest is the way

and the possibility of obtaining it. And since the OSA

of authorized state bodies is legislatively defined in

public and private forms, therefore the legislator

determines, although rather sparingly, to its own

sectoral principles, such as conspiracy, a combination

of public and secret methods and means.

The principle of conspiracy, despite the fact that

the law does not disclose its content and complexity,

since the solution of operational tasks seems

impossible without conspiratorial support.

The controversy over what is the secret in

securing the principle of conspiracy seems obvious.

So, for example, N.V. Pavlichenko refers to the

secrecy of information related to state or official

secrets, as well as other information, the

dissemination of which may cause its decryption and

its use against the interests of law enforcement

agencies, to conspiracy (Pavlichenko, 2010).

Another position of the authors and scientists is

based on the understanding of conspiracy as keeping

secret its forces, means and methods, organizational

and tactical aspects of the implementation of the OSA

(Goryainov, Ovchinsky, 2018).

M.P. Smirnov, interprets conspiracy as keeping

secret from criminals the actions of law enforcement

agencies to expose them, protection from

unauthorized access to information about certain

aspects of operational-search activities (Smirnov,

2002).

A.A. Sheludko believes that the principle of

conspiracy is to conduct operational-search activities

in complete secrecy from those being inspected and

developed, as well as from other persons who have no

direct official relation to their organization and

conduction (Sheludko, 2011).

Observance of conspiracy in the OSA provides an

opportunity to prevent and disclose the most

dangerous crimes committed in secret, in disguised

ways, especially those prepared and committed by

members of organized groups and criminal

communities, as well as illegal armed groups

(Gabzalilov, Kuznetsov, Omelin, 2020).

Thus, the variety of definitions and understanding

of the essence of the principle of conspiracy is quite

large both in open literature and in special literature.

The obvious and unfavorable moment is that there is

no common understanding and interpretation of it.

The lack of legislative consolidation of the principle

System of Principles of Operational-search Activity

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of conspiracy negatively affects the science of the

OSA. Apparently the legislator believes that the

principle of conspiracy is generally recognized and

understandable and there is no need for its disclosure

and description. Of course, this is economical and

convenient for lawmaking and the construction of a

normative act, but it greatly impoverishes the science

and practice of OSA, which in turn gives rise to the

diversity of its scientific understanding and practical

interpretation by operational staff. So, as a result of

our survey of employees of operational divisions of

law enforcement agencies, the overwhelming

majority (almost 79 %) understand the hidden nature

of activities from other persons as conspiracy, 19 %

of those surveyed admit the information obtained as a

secret. And at the same time, 83 % of those who

participated in the survey noted that access to the

information received can become a condition for its

dissemination, and therefore there is a threat of

possible damage to the state and the individual, law-

protected interests in general.

Unified and uniting different judgments about

understanding the essence of conspiracy is to define

secrecy or secrecy, something known, but hidden

from others. And here its value will depend on the

purpose for which and for what tasks it is oriented, for

example:

− to hide tactical techniques and methods of

carrying out an independent reconnaissance

mission;

− keep secret information related to state or other

official activities;

− to provide a condition for the implementation

of confidential assistance of citizens to

operational units;

− to protect and protect other persons who are not

objects of the conducted OSM and ensure their

awareness of them;

− to guarantee the receipt of the necessary and

operatively significant information;

− create conditions and opportunities for

receiving operational information;

− to prevent unjustified and premature

compromise of objects of operational interest.

In other cases, the OSA is completely legal and

open, which is directly indicated by the Federal Law

"On OSA", noting the subjects vested with the

appropriate right, which in itself is no longer a secret.

This principle is also disclosed in the norms of

other normative legal acts, for example, in article 5 of

the law of the Russian Federation of July 21, 1993

No. 5485-1 "On state secrets", state secrets in the field

of OSA are information:

− about the forces, means, sources, methods,

plans and results of activities to ensure the

safety of protected persons, data on the

financing of these activities;

− about persons providing confidential assistance

to the operational-search bodies, as well as

about persons embedded in organized crime

groups;

− about the full-time covert employees of the

operational-search bodies.

In scientific articles devoted to conspiracy in the

OSA, scientific discussions about the legislative

definition of the list of conspiracy rules are often

noted and conducted, thereby confirming the

necessity and essential importance of this principle.

So, B.P. Mikhailov and E.N. Khazov in their work

give the following definition of the rules of

conspiracy – this is a code representing a system

(procedure) for the application of legal,

organizational measures, operational-tactical actions,

methods and means that ensure secrecy (secrecy) of

conducting OSM and exclude the leakage of

operational information and decoding of forms and

methods covert work, in order to solve the tasks of the

OSM to ensure public safety and combat crime

(Mikhailov, Khazov, 2016).

Another team of scientists has also developed a

definition of the rules of conspiracy - these are rules

developed by operational-search practice, the

observance of which by the operational units of the

bodies authorized to carry out the OSA can ensure

that the content of the OSM they conduct and other

operational actions are kept secret from unauthorized

persons (Gabzalilov, Kuznetsov, Omelin , 2020).

Both definitions are similar in that these are

certain measures aimed at ensuring the secrecy of the

OSM. Therefore, the operation and observance of the

principle of conspiracy is of particular importance for

the OSM, since it is aimed at keeping secret

information of operational interest – information

about specific OSM, their organization and tactics.

The principle of combining vowel and tacit

methods and means is another special (sectoral)

principle of OSA. A characteristic feature of this

principle is the inclusion in its content of two

independent concepts "means" and "methods".

Traditionally, the means include objects, objects of

the material world, with the help of which the

implementation of the OSA is ensured. And the

method is understood as a set of techniques and

methods used to solve the problems of OSA when

conducting OSM.

This principle grants and secures the right of

operational units to conduct ORM both publicly and

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secretly. The ability to combine vowel and tacit

methods and means allows you to use various

combinations of them from the opened OSM publicly

to its transition to tacit and vice versa, or

simultaneous use in any sequence is allowed.

Moreover, the results of one OSM can in the future

become the basis for conducting subsequent OSM

publicly or secretly, in a complex.

Undercover measures are the most effective for

obtaining information about the reasons and

conditions conducive to the commission of crimes, as

well as about persons who are prone to committing

illegal acts. They are used intensively throughout the

confidential cooperation of convicts with operational

units. Vowel measures are used to a greater extent

when receiving statements, reports of crimes,

complaints, during prevention (Zabrodin, Cheremin,

2020). Or they can be used to verify the accuracy of

information obtained as a result of the use of covert

methods and means.

In its essence and purpose, the principle of

combining public and private methods and means is a

continuation and development of the principle of

conspiracy, which provides an opportunity to

distinguish publicly available information from secret

information that is not subject to publicity or is

protected.

On the other hand, this principle makes it possible

to distinguish between the types of activities of

various law enforcement agencies that carry out the

fight against crime, either publicly or secretly.

Thus, the ability to combine vowel and unspoken

OSM, as well as their competent implementation,

allows solving the OSA tasks in full.

4 CONCLUSIONS

Summing up our research, we would like to note once

again that the existing list of OSA principles is not

exhaustive. Science and practice about the OSA does

not stand still, but is dynamically developing in

accordance with the modern conditions of the

development of society and the transformation of

crime.

The current system of OSA principles is the basis

that expresses the most essential features of the OSA.

Scientific thought and its ideas have accumulated

sufficient experience for the legislative addition and

consolidation of other principles. It is especially

worth noting the need for a legislative definition of

the concepts of OSA principles, for the purpose of a

common understanding and interpretation.

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